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OnPoint Expert Assists Class Certification Victory in Restasis Antitrust Litigation

On May 5, 2020, U.S. District Judge Nina Gershon for the Eastern District of New York certified a class of End-Payor Plaintiffs (EPPs) in the antitrust litigation involving the ophthalmic drug Restasis. EPPs allege that Defendant Allergan carried out a multifaceted scheme to keep generic Restasis off the market for years after the patent for branded Restasis had expired.

When certifying the EPPs class, Judge Gershon relied on the testimony of OnPoint expert Laura Craft, who explained prescription fulfilment/payment processes and data systems in the United States. Judge Gershon concluded that the proposed class, which includes consumers, was ascertainable and satisfied all legal requirements. Citing Craft, she concluded that “for every purchase of Restasis, data is available to discern who bought it, who paid for it, and how much every payor paid.” The Court found that “only a de minimis number of plaintiffs were uninjured” and that “a finding of classwide injury-in-fact” could be made.

The decision brings legal precedent into line with current industry realities by rejecting the term “brand-loyalty,” a concept Allergan had used to speculate about whether consumers might have chosen to remain with the brand even in the presence of a generic. Once again citing Craft, Judge Gershon instead adopted the term “brand-retention”, recognizing that “powerful institutional factors, which are unrelated to a consumer’s preference for a particular brand, drive brand retention rates.”

The opinion tackled head on the 1st Circuit’s earlier decision in another pharmaceutical class action: In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018). In Asacol, the Court found that about 10% of consumer class members might have been uninjured and that Defendant had a right to challenge each class member’s statement that he or she would not have been a “brand loyalist.” Based on that ruling, Defendant Allergan claimed in Restasis the right to “individualized inquiries at the liability phase of trial to identify brand retainers in the but-for world and that EPPs’ proposed methodology to exclude them from the class is insufficient.” Rejecting Asacol’s ruling, Judge Gershon noted that “the Second Circuit has accepted the use of representative evidence and statistical observations to prove classwide injury” and she disagreed “with the First Circuit’s conclusion in Asacol that defendant has a constitutional right to remove these [uninjured] individuals at the liability stage of trial.” The Court further concluded that “the data available in the pharmaceutical industry, detailed by Ms. Craft, ensures that only those who actually purchased Restasis will receive damages” and the “data will show exactly how many purchases a consumer made and exactly how much he or she paid for each one.”

The End-Payor Class in Restasis is represented by co-lead counsel Girard Sharp LLP, Lieff Cabraser Heimann & Bernstein LLP and the Joseph Saveri Law Firm, as well as Zwerling Schachter & Zwerling LLP (liaison counsel). All four law firms regularly represent plaintiffs (including Third Party Payors and consumers) in pharmaceutical antitrust litigation.

To learn more about Laura Craft, click here.

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OnPoint Welcomes New Expert, Professor Daniel Hamermesh, Ph.D.

OnPoint Analytics is pleased to introduce the latest addition to our team of experts: Professor Daniel Hamermesh.

Professor Hamermesh is Distinguished Scholar, Barnard College; Sue Killam Professor Emeritus in the Foundation of Economics at the University of Texas at Austin and Professor Emeritus of Economics, Royal Holloway University of London. His fields of specialization are labor and employment, competition in labor markets, wage discrimination and class certification. Professor Hamermesh has provided expert witness testimony in a number of labor and employment matters, involving both class certification and pattern or practice claims. Most recently, he provided expert testimony for plaintiffs in FTC v. Amazon and testified for the plaintiff in Perry et al. v. Schwarzenegger et al., the landmark challenge to California’s Proposition 8. He also provided expert witness testimony on class certification for the defense in a number of nationwide cases that alleged the suppression of wages among registered nurses.

Dr. Hamermesh received his Ph.D. from Yale and his A.B. from the University of Chicago. He has taught at Princeton, at Michigan State and at the University of Texas at Austin and has held visiting professorships at universities in North America, Europe, Australia and Asia. His research, published in over 100 refereed papers in scholarly journals, has concentrated on time use, labor demand, social programs, academic labor markets and unusual applications of labor economics (to beauty, sleep and suicide). Dr. Hamermesh is a Fellow of the Econometric Society and the Society of Labor Economists, a Research Associate of the National Bureau of Economic Research and the Institute for the Study of Labor (IZA), of which he is currently Network Director; and he is Past President of the Society of Labor Economists and of the Midwest Economics Association. His work has been published by Princeton University Press, Oxford University Press and Worth Publishers.

Click here to learn more about Professor Hamermesh.

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OnPoint Announces Promotions; Dr. Gareth Macartney is OnPoint’s new CEO

OnPoint is pleased to announce that Dr. Gareth Macartney starts 2020 as OnPoint’s new Chief Executive Officer. Dr. Macartney has been with OnPoint for eleven years. In that time, he has managed antitrust, intellectual property, breach of contract, and class action cases, among other types of complex litigation. He has built his own testifying practice with a focus on antitrust and intellectual property. He was made a partner in 2014 and has been involved in various areas of management including business development, recruitment, training, marketing, and operations. Dr. Macartney will also continue his role as Director of Competition and will continue to maintain a full testifying and case management workload. To learn more about Dr. Macartney, please click here

OnPoint’s co-founder, CEO and President of 16 years, Laura Craft, will continue to serve as the company’s President. She will also continue her testifying practice in pharmaceutical litigation. To learn more about Ms. Craft, please click here.     

OnPoint is also pleased to announce that Dr. George Saioc, whose work focuses on antitrust and class action cases, has been promoted to Senior Economist (click here) and Ben Koos, MS has been promoted to Analyst (click here).

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Loestrin Antitrust Litigation Settles on The Day Trial Was Set to Start; OnPoint Expert Assisted Class Certification Victory

On January 6, 2020, the day trial was set to start, Class Plaintiffs reached an agreement with Defendants Warner Chilcott and Watson Pharmaceuticals to end the antitrust litigation involving oral contraceptives, Loestrin 24 Fe and Minastrin 24 Fe. Direct and indirect purchasers alleged that Defendants violated state and federal law through a series of actions intended to delay and suppress generic competition, including a brand product hop from Loestrin to Minastrin. Warner Chilcott and Watson will pay approximately $300 million under the settlement agreements, which are still subject to Court approval.

When certifying the end-payor class in October 2019, Judge William E. Smith relied on the testimony of OnPoint expert Laura Craft, who explained prescription fulfilment/payment processes and data systems in the United States. Judge Smith concluded that the proposed class of Third-Party Payers was ascertainable and satisfied the requirements previously enunciated in In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018). Citing Craft, he concluded that Plaintiffs were “capable of securing, compiling, and analyzing the requisite data to identify class members and apply the class exclusions”.

The End-Payor Class in Loestrin was represented by Cohen Milstein Sellers and Toll PLLC, Motley Rice LLC, Miller Law LLC and Hilliard and Shadowen LLP. All four law firms regularly represent plaintiffs (including Third Party Payers and consumers) in pharmaceutical antitrust litigation.

To read the class certification order, click here

To read more about Laura Craft, click here

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Settlement in Herd Retirement Antitrust Case

Analysis performed by OnPoint expert Dr. John Connor helped secure a settlement for Winn-Dixie in its dispute with major dairy cooperatives concerning the Cooperatives Working Together “CWT” Herd Retirement Program. The settlement resolved a dispute centered on allegations that the Defendants participated in a conspiracy to limit the production of raw farm milk through premature “herd retirements”, thereby reducing the supply of milk. The alleged result of the conspiracy was an increase in the price of raw farm milk.

Dr. Connor submitted an initial expert report and provided testimony on behalf of Plaintiff Winn-Dixie, analyzing the market for milk and dairy products and evaluating the feasibility of the Herd Retirement Program to raise prices. He also analyzed the extent to which the CWT Herd Retirement Program increased the over-order premium (“OOP”) for milk purchased by the Plaintiff, and calculated the damages suffered by Plaintiff as a result.

In response, Defendants filed expert reports by Dr. Bryan M. Ricchetti and Dr. Andrew M. Novakovic. Dr. Connor responded with a rebuttal report and provided another day of deposition testimony.

The trial was set to begin on January 6, 2020. Parties informed the Court about the settlement less than a week before trial, on December 31, 2019. To learn more about Dr. Connor, click here.

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UC Berkeley hosts Festschrift in Honor of Dr. Gordon Rausser, OnPoint Analytics Chairman

The University of California, Berkeley, recently hosted a Festschrift to celebrate the life and work of Dr. Gordon C. Rausser, Chairman and co-founder of OnPoint Analytics. The speakers on the two-day symposium included luminaries in a variety of fields ranging from economics, law, international studies, public policy, and global poverty and development. Specific panel topics focused on “Governance Structures and Agriculture’s Role in Economic Development,” “Big Data Analytics and Continuous Remote Sensing,” “Public Policy and Market Reforms in Transition Economics,” and more (click here for more details). The Festschrift also included a reception at the University House to Dr. Rausser’s colleagues, friends and family, hosted by UC Berkeley chancellor, Carol Christ.

Dr. Rausser is the Robert Gordon Sproul Distinguished Professor at UC Berkeley’s Department of Agricultural & Resource Economics in the College of Natural Resources. He is a preeminent agricultural and resource economist whose contributions in academia, government service, business, and public policy are exceptional for their impact around the world. Dr. Rausser also has extensive litigation experience and has given deposition and trial testimony in hundreds of cases, including high profile antitrust, intellectual property and market manipulation cases. To learn more about Dr. Rausser, click here.

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OnPoint Welcomes New Economist, Dr. Seamus Li, and New IT Manager, Sean Fatourchi

OnPoint Analytics is pleased to introduce the latest additions to our team: Economist Dr. Seamus Li and IT Manager Sean Fatourchi.

Dr. Seamus Li is an Economist with a background of diverse experience in academia, government, industry, and consulting. He specializes in empirical industrial organization and applied econometrics. Dr. Li’s academic research touched upon such topics as auctions, uncertainty, the digital economy, imperfect competition, natural resources, and the environment. Prior to joining OnPoint, Dr. Li was an Assistant Professor at Hamline University in St. Paul, Minnesota and an Economist at Spy Pond Partners in Denver. He also worked as a consultant to government agencies regarding the economics of transportation and infrastructure. Dr. Li received his Ph.D. in Economics from the University of Colorado Boulder.

Sean Fatourchi, OnPoint’s new IT manager, is an experienced IT professional with over 19 years of progressively responsible IT experience. He has worked for hedge funds, financial startups and as an IT consultant for leading technology consulting firms providing services to industries such as wineries, law enforcement, city and government agencies. Prior to joining OnPoint, Sean worked at KLH Consulting.

To learn more about Sean, click here.

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OnPoint Expert Assists Class Certification Victory in Engquist v. City of LA

The Superior Court of the State of California for the County of Los Angeles recently certified a class of all persons that have paid the City of Los Angeles Gas Users Tax (“GUT”) imposed by section 21.1.5 of the Los Angeles Municipal Code on certain amounts charged by Southern California Gas Company (“SoCalGas”) for customer service-related charges, such as reading meters, preparing bills, processing payments and establishing service. The case was brought against the City of LA (Case No. BC591331). Plaintiffs assert that the GUT should be applied to charges made for the actual gas, and not for customer service-related charges.

In the May 13th order, Judge Daniel J. Buckley concluded that the questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members.” Judge Buckley’s class certification decision cited the declaration of OnPoint expert Dr. Gareth Macartney, who examined whether the record evidence suggested that the billing system of SoCalGas was sufficient to identify Class members and, ultimately, compute damages for that Class in a formulaic manner. Judge Buckley described how Dr. Macartney “surmise[d] that the data is stored in a common data format well suited to statistical software used by economists.” Judge Buckley described how Plaintiffs trial plan included “Dr. Gareth Macartney, who will testify to his methodology for determining individual damages from SoCalGas’s databases using statistical and other software.” The Court concluded that Plaintiffs had proposed a manageable trial plan and that Defendant’s arguments to the contrary were unavailing.   

To read the order, click here.

To read more about Dr. Macartney, click here.

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OnPoint Expert Testifies in Packaged Tuna Antitrust Case

OnPoint expert Dr. Gareth Macartney recently gave a full day of deposition testimony in an antitrust lawsuit against producers of packaged tuna in the United States (In Re: Packaged Seafood Products Antitrust Litigation, USDC, Southern District of California, Case No. 15-MD-2670). Dr. Macartney served as an economic expert on behalf of Plaintiffs Winn-Dixie Stores, Inc. and Bi-Lo Holdings, LLC. The case involves allegations that Defendants colluded to fix, raise, and/or stabilize prices for shelf-stable packaged tuna products. The case is ongoing.

To learn more about Dr. Gareth Macartney, click here.

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OnPoint Welcomes New Director of Pharmaceutical Analytics, Dr. Theo Ndatimana, PharmD, MPH

OnPoint Analytics is pleased to introduce the latest addition to our team: Dr. Theo Ndatimana, who has a medical background and over 10 years of practical experience in the pharmacy field. He has worked for health insurers and for major health care providers and is intimately familiar with all aspects of pharmaceutical data, procurement, and dispensing. He brings to our team a combination of data expertise, industry experience and invaluable knowledge of the pharmaceutical regulatory and reporting structures. This combination of rigorous academic training and hands on industry experience make him a key resource to OnPoint’s pharmaceutical litigation consulting team. Prior to joining OnPoint, Dr. Ndatimana was a Senior Consultant Pharmacist at Deloitte, where he was part of the supply chain management consulting practice for hospitals and health care systems. Dr. Ndatimana received his PharmD degree from the University of California, San Francisco.