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1.21.2015

First Circuit Denies Nexium Defendants’ Motion to Voluntarily Dismiss Their Appeal and Affirms Certification of the End-Payor Class

In two decisions entered today, the First Circuit Court of Appeals denied defendants’ request to voluntarily dismiss their appeal concerning the class certification decision entered in the In re Nexium Antitrust Litigation while affirming the district court’s certification of the End-Payor Class. Judge Young, the district judge overseeing the Nexium litigation, certified the End-Payor Class—comprised of Nexium consumers and third-party payors, such as insurers and health and welfare funds—in late 2013. On June 5, 2014, defendants filed their appellate brief with the First Circuit, asking the court to overturn Judge Young’s certification decision. Managing Partner of Wexler Wallace, Kenneth A. Wexler, argued the appeal before the First Circuit on July 31, 2014.

The Nexium case went to trial before Judge Young in October 2014. After a six-week trial, the jury returned a verdict on December 5, 2014. The jury made key findings in favor of the plaintiffs, including that: 1) AstraZeneca exercised market power within the relevant market; 2) the settlement of the AstraZeneca-Ranbaxy patent litigation included a large and unjustified payment by AstraZeneca to Ranbaxy; and 3) AstraZeneca’s Nexium settlement with Ranbaxy was unreasonably anticompetitive (i.e., the anticompetitive effects of that settlement outweighed any procompetitive justifications). The jury ultimately returned a verdict in favor of AstraZeneca and Ranbaxy, however, finding that had it not been for the unreasonably anticompetitive settlement, AstraZeneca would not have agreed with Ranbaxy that Ranbaxy might launch a generic version of Nexium before May 27, 2014. Plaintiffs have since moved for a new trial, and End-Payor Plaintiffs have moved for injunctive relief related to the jury’s findings on the first three questions of the verdict form.

On December 10, 2014, defendants asked the First Circuit to dismiss their appeal of the district court’s decision certifying the End-Payor Class. The First Circuit denied defendants’ request, stating in its January 21, 2015 Order:

“Defendants here should not be able to circumvent this panel by dismissing an interlocutory appeal on an issue they can later press again before a different panel in an appeal after final judgment. A party should not be able to ‘manipulate the formation of precedent by dismissing [an appeal].’”

In a separate Opinion, the First Circuit affirmed Judge Young’s certification of the End-Payor Class, holding that “class certification is permissible even if the class includes a de minimis number of uninjured parties.” Opinion, 14-1521, at 6 (Jan. 21, 2015).

To read the First Circuit’s Order in its entirety, please click here. To read the First Circuit’s Opinion in its entirety, please click here. To learn more about the case generally, please visit the Nexium Antitrust case page.

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