Finding Uninjured Consumers In Drug Antitrust Class Actions
In an amicus brief filed in March opposing an appeal from end payers seeking to certify a class of end purchasers of the cholesterol drug Niaspan in In re: Niaspan Antitrust Litigation, the Washington Legal Foundation stated that:
Plaintiffs offered the District Court no workable way of identifying members of the class of end-payors they seek to represent from more than 20 million transactions. That is the end of this case.
However, whether class members could be identified was not the only issue in the Niaspan case. The presence of uninjured groups of purported class members was also an issue cited by the U.S. District Court for the Eastern District of Pennsylvania in rejecting class certification.
Specifically, the court viewed the use of averages as inappropriate when it hid "several groups of uninjured class members who cannot be easily identified." This follows other recent pay-for-delay class actions where courts have ruled that a proposed end-purchaser class that includes more than a de minimis number of uninjured class members is a barrier to class certification.
For example, in In re: Asacol Antitrust Litigation, the U.S. Court of Appeals for the First Circuit in 2018 reversed a decision to grant class certification when approximately 10% of the proposed class were found to be uninjured — reflecting thousands of uninjured class members.
In our experience, the presence of uninjured class members is more likely to be hidden in a pharmaceutical antitrust class action with a highly aggregated economic model that relies on the use of averages. In this article, we identify dimensions along which, over aggregation and averaging, likely lead to findings of uninjured class members.