Court Denies Class Certification In Pharmaceutical Pay-For Delay MDL

In In re: Skelaxin (Metaxalone) Antitrust Litigation, Eastern District of Tennessee Court Judge Curtis L. Collier denied class certifications to two groups claiming Pfizer Inc.’s King Pharmaceuticals Inc. settled a patent dispute with a deal to keep muscle relaxant Skelaxin off the market in a pay-for-delay arrangement that kept the drug prices at brand-name levels.  A group of end payors and a group of indirect purchasers sued Pfizer, claiming that Pfizer wronged them, as classes, in the patent dispute because the deal kept the price of Skelaxin artificially high. The complaint also alleged that King launched sham patent infringement suits and along with Mutual Pharmaceuticals Co. Inc., engaged in a campaign of filing meritless petitions with the U.S. Food and Drug Administration as part of an effort to block generics from coming to market.

In denying end payor plaintiffs’ class certification, the court held that the end payor class was too complicated of a class to be ascertained as a whole.  Rather, each transaction would have to be analyzed individually to determine whether and how each end payor was harmed, according to the court.  With respect to the indirect purchasers, the court ruled that the would-be class failed to make an adequate choice of law showing.  According to Judge Collier, Tennessee law does not apply to a nationwide class regardless of the fact that the statute at issue may be available to nonresidents in certain situations, and indirect purchasers failed to contend with defendants’ argument against certification of their alternative state subclasses.

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