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.