In re Suboxone (Buprenorphine Hydrochlorine And Naloxone) Antitrust Litigation, 072820 FED3, 19-3640

Docket Nº:19-3640
Opinion Judge:SHWARTZ, CIRCUIT JUDGE.
Party Name:In re: Suboxone (Buprenorphine Hydrochlorine and Naloxone) Antitrust Litigation Indivior Inc. f/k/a Reckitt Benckiser Pharmaceuticals, Inc., Appellant
Attorney:Bruce E. Gerstein Joseph Opper Garwin Gerstein & Fisher Counsel for Plaintiff-Appellee Burlington Drug Co. Inc. Thomas M. Sobol Hagens Berman Sobol Shapiro Counsel for Plaintiff-Appellees Meijer Inc. and Meijer Distribution Inc. Caitlin G. Coslett David F. Sorensen Berger Montague Peter Kohn [ARG...
Judge Panel:Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.
Case Date:July 28, 2020
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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In re: Suboxone (Buprenorphine Hydrochlorine and Naloxone) Antitrust Litigation

Indivior Inc. f/k/a Reckitt Benckiser Pharmaceuticals, Inc., Appellant

No. 19-3640

United States Court of Appeals, Third Circuit

July 28, 2020

Argued July 1, 2020

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-13-md-02445) District Judge: Honorable Mitchell S. Goldberg

Bruce E. Gerstein Joseph Opper Garwin Gerstein & Fisher Counsel for Plaintiff-Appellee Burlington Drug Co. Inc.

Thomas M. Sobol Hagens Berman Sobol Shapiro Counsel for Plaintiff-Appellees Meijer Inc. and Meijer Distribution Inc.

Caitlin G. Coslett David F. Sorensen Berger Montague Peter Kohn [ARGUED] Faruqi & Faruqi John F. Kennedy Counsel for Plaintiff-Appellee Rochester Drug Cooperative Inc.

Jonathan B. Berman [ARGUED] Jones Day James R. Saywell Counsel for Defendant-Appellant Indivior Inc., f/k/a Reckitt Benckiser Pharmaceuticals Inc.

Anthony Russomanno Wisconsin Department of Justice Counsel for Amicus State of Wisconsin in support of Appellees

Randy Stutz Counsel for Amicus American Antitrust Institute in support of Appellees

Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.

OPINION

SHWARTZ, CIRCUIT JUDGE.

Indivior, Inc., formerly Reckitt Benckiser Pharmaceuticals, Inc. ("Reckitt"), manufactured Suboxone, a prescription drug used to treat opioid addiction. Direct purchasers of Suboxone ("Purchasers") allege that Reckitt engaged in anticompetitive conduct that impeded the entry of generic versions of the drug into the market in violation of § 2 of the Sherman Act, 15 U.S.C. § 2. In a thorough, thoughtful, and well-reasoned opinion, the District Court certified a class of those who purchased Suboxone from Reckitt, and Reckitt appeals the certification order. We will affirm.

I

A

We first explain how prescription drugs enter the market. A company wishing to offer a new drug for sale must seek approval from the Food and Drug Administration ("FDA") by filing a New Drug Application ("NDA"). Mylan Pharms. Inc. v. Warner Chilcott Pub. Ltd. Co., 838 F.3d 421, 427 (3d Cir. 2016) (citing 21 U.S.C. § 355). Once the drug is approved for sale, it is considered a "brand" or "brand-name" drug. Id. To increase competition and reduce prices, Congress enacted a streamlined method for generic manufacturers to introduce drugs by allowing them to "piggy-back" on the brand drug's "approval efforts." FTC v. Actavis, Inc., 570 U.S. 136, 142 (2013). Specifically, a generic drug maker may submit an Abbreviated New Drug Application ("ANDA") that may "rely on a name-brand drug company's original NDA approval for a particular drug in order to gain quicker, less costly FDA approval of a generic version." Mylan, 838 F.3d at 427.

If a generic drug manufacturer demonstrates that "the proposed generic product is both a 'bioequivalent' and a 'pharmaceutical' equivalent of the name-brand drug," then it may "have [its] product deemed 'AB-rated' to the name-brand drug by the FDA." Id. at 427-28.1 State laws either allow or require pharmacists to substitute these AB-rated, lower-cost generic drugs for a name-brand version. Id. at 428. Due to such substitution laws and the generic drugs' low cost, generics often significantly erode a brand drug's market share. See In re: Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig. (Motion to Dismiss), 64 F.Supp.3d 665, 673 (E.D. Pa. 2014).

B

Reckitt developed Suboxone tablets. The FDA granted Reckitt a seven-year period of exclusivity in which other manufacturers could not introduce generic versions of Suboxone tablets. As the exclusivity period neared its end for its brand drug, Reckitt developed an under-the-tongue film version of Suboxone, which would enjoy its own exclusivity period. Generic versions of Suboxone tablets would not be AB-rated to Suboxone film, so state substitution laws would not require pharmacists to substitute generic Suboxone tablets if a patient were prescribed Suboxone film.

According to the Purchasers, Reckitt's transition to Suboxone film was coupled with efforts to eliminate demand for Suboxone tablets and to coerce prescribers to prefer film. To that end, Reckitt allegedly: (1) engaged in a widespread campaign falsely disparaging Suboxone tablets as more dangerous to children and more prone to abuse; (2) publicly announced that it would withdraw Suboxone tablets from the market due to these safety concerns; (3) ended its Suboxone tablet rebate contracts with managed care organizations in favor of Suboxone film rebate contracts; (4) increased tablet prices above film prices; (5) withdrew brand Suboxone tablets from the market; and (6) impeded and delayed the market entry of generic Suboxone tablets by manipulating the FDA's Risk Evaluation and Mitigation Strategy ("REMS") process2 and filing a baseless citizen petition.3 Through these actions, Reckitt shifted the market to Suboxone film by the time generic Suboxone tablets hit the market and continued to dominate the Suboxone market as the exclusive maker of Suboxone film.

The Purchasers sued Reckitt, 4 alleging that its efforts to suppress generic competition amounted to unlawful maintenance of monopoly power, in violation of § 2 of the Sherman Act. The Purchasers moved to certify a class of "[a]ll persons or entities . . . who purchased branded Suboxone tablets directly from Reckitt" during a specified period. App. 5-6. The proposed class representatives were Burlington Drug Company, Inc. and two other purchasers. Burlington's corporate designee testified that although Burlington was not "control[ling]" class counsel, Burlington is aware it is a "fiduciary" for the class, understands the injury claimed, and has been kept apprised of activities in the case. App. 186. In addition, Burlington has produced thousands of pages of electronic transaction level data reflecting purchases, charge backs, and sales of Suboxone tablets, as well as documents from the electronic files of ten employees.

In support of class certification, the Purchasers submitted an expert report by Dr. Russell Lamb, an economist. Dr. Lamb concluded that, due to Reckitt's allegedly anticompetitive conduct, the proposed class paid more for brand Suboxone products.5 Dr. Lamb attributed these overcharges to Reckitt's actions that: (1) suppressed generic tablet competition, so the Purchasers had to buy brand tablets or film instead of less expensive generic tablets; (2) delayed market entry of generic tablets, increasing the time more expensive brand tablets could dominate the market; and (3) increased the price of brand tablets. To reach these conclusions, Dr. Lamb relied on internal Reckitt documents reflecting its national Suboxone strategy and economic analysis of tablet pricing. Dr. Lamb also calculated the damages attributable to this injury. Using economic modeling and data from Reckitt, he estimated, in the aggregate, the difference between the actual prices charged for brand Suboxone tablets and film and the price class members would have paid for generic and non-Reckitt-brand versions.

The District Court certified the class. In re: Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig. (Class Certification), 421 F.Supp.3d 12, 26 (E.D. Pa. 2019). As relevant to this appeal, the Court held that (1) common evidence of injury and damages showed that the Purchasers paid more for brand Suboxone products than they would have for generic tablets due to Reckitt's actions to promote film, disparage tablets, and suppress generics' market entry, id. at 62-63; (2) although the Purchasers' aggregate damages model did not allocate damages among class members, "[i]ssues regarding allocation of individual damages [were] insufficient to defeat class certification," id. at 64; and (3) Burlington was an adequate class representative because it had the requisite knowledge of the litigation, including "the basis for the claimed injury," and its interests aligned with the class, id. at 51. Reckitt appeals.

II6

Federal Rule of Civil Procedure 23 sets forth the requirements for class certification. Gonzalez v. Corning, 885 F.3d 186, 192 (3d Cir. 2018). As relevant here, Rule 23(b)(3) requires that common questions predominate and Rule 23(a)(4) requires that the named plaintiffs adequately represent the class, two requirements Reckitt disputes are satisfied.

A

Rule 23(b)(3) requires that "questions of law or fact common to class members predominate over any questions affecting only individual members." Fed.R.Civ.P. 23(b)(3). "To assess predominance, a court . . . must examine each element of a legal claim through the prism of Rule 23(b)(3)" by determining whether each element is "capable of proof at trial through evidence that is common to the class rather than individual to its members." Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 600 (3d Cir. 2012) (internal quotation marks and citations omitted). The Purchasers' claims require them to prove (1) "a violation of the antitrust laws" (here, unlawful monopolization by Reckitt);[7] (2) "individual injury resulting from that violation"; and (3) "measurable damages." In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008), as amended (Jan. 16, 2009).

1

Reckitt first argues that the Purchasers have not provided common evidence of injury or damages8 that matches a viable theory of liability, as required by Comcast Corp. v. Behrend, 569 U.S. 27, 37-38 (2013) (holding that class certification was inappropriate when a damages model reflected injury from four antitrust injuries, but only one viable theory of antitrust liability and injury remained in the case). Reckitt does not dispute that the Purchasers have provided common evidence...

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