Citizens for Consume, et al v. Abbott Laboratories,, et al

Filing 7777

Judge Patti B. Saris: ORDER entered re 7764 Response filed by Patricia Weatherly."ORDER...Patricia Weatherly's objection to the re-balanced Track Two settlement (Docket No. 7764 ) is overruled." (Anderson, Jennifer)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
IN RE PHARMACEUTICAL INDUSTRY )
AVERAGE WHOLESALE PRICE
)
LITIGATION
) MDL NO. 1456
_______________________________)
)
THIS DOCUMENT RELATES TO:
) MASTER CASE NO. 01-cv-12257-PBS
)
TRACK TWO SETTLEMENT
)
)
)
ORDER
August 30, 2011
Saris, U.S.D.J.
Objector Patricia Weatherly has renewed several challenges
to the re-balanced Track Two Settlement.

(Docket No. 7764.)

Class counsel previously responded to Weatherly’s challenges to
the earlier version of the settlement.
also Docket No. 7737.)

(See Docket No. 7573; see

The Court derives the information in this

order from the above pleadings and related declarations.
First, Weatherly argued that a mistake on the Track Two
website involving the claims deadline for Class 3 consumers
negatively impacted the class response rate.

Class counsel has

explained, and Ms. Weatherly now appears to agree, that the
mistaken date was not posted until February 2011, more than one
year after the correct February 1, 2010 deadline had passed.
Accordingly, the mistake did not affect the Class 3 response
rate.

Second, Weatherly claims that the notice provided to Class 3
consumers was insufficient, largely based on what she posits is
an unacceptably low response rate.

In order to notify Class 3

consumers of the Track Two settlement, Class Counsel employed
both a national media campaign and a direct mail campaign using
names and addresses of potential Class 3 members obtained from
Independent Settling Health Plans (ISHPs).

The ISHPs represent

more than 60% of the covered lives in the United States, and the
data obtained from the ISHPs identified 897,489 potential Class 3
consumers.

Each of these consumers received a full Class 3

notice with Claim Form.

In addition, the claims administrator

mailed 959,362 Class 3 Consumer Notice and Claim forms in
response to requests.

It is not clear from the record whether

there is any overlap between these two groups.

The media and

direct mail campaigns resulted in 21,000 Class 3 consumer claims,
which Weatherly points out is only one percent of the claims
forms that were mailed out.

However, assuming that there was

some overlap between the direct mail notice and the claims forms
mailed in response to requests, that percentage is higher.
Weatherly suggests that Class Counsel should have subpoenaed
billing records from ISHPs and pharmacies so that direct payment
of an award could be made.

Weatherly’s suggestion that a direct

payment mechanism be utilized is based on the use of such a
strategy in the Relafen settlement.

See, e.g., In re Relafen

Antitrust Litig., 231 F.R.D. 52, 64 (D. Mass. 2005).

However,

Relafen involved a single oral medication with only a few NDCs,
as opposed to this case which encompasses almost 200 drugs and
thousands of NDCs.

In addition, many of the Track Two Class

Drugs are injectable drugs administered by a physician that would
not be documented by pharmacy records.

With respect to

retrieving billing information from the ISHPs, this is an
impracticable suggestion.

According to class counsel, most TPPs

do not maintain insured claim information in their active
databases for more than three or four years.

Older information,

if available at all, is archived in a format that is often
expensive to access.
Under Rule 23(c)(2), notice to the class must be “the best
notice practicable under the circumstances, including individual
notice to all members who can be identified through reasonable
effort.”

Amchem Prods. v. Windsor, 521 U.S. 591, 617 (1997)

(citing Fed. R. Civ. P. 23(c)(2)); Reppert v. Marvin Lumber &
Cedar Co., 359 F.3d 53, 56 (1st Cir. 2004).

“[I]t is the court’s

duty to ensure that the notice ordered is reasonably calculated
to reach the absent class members.”
(citations omitted).

Reppert, 359 F.3d at 56

The Court finds that the direct mail

campaign based on customer information from ISHPs that insure 60%
of covered lives in the United States, when combined with an
extensive media campaign, is the best notice practicable under
these circumstances.1
1

Indeed, the notice plan for Class 3 consumers in the Track
Two settlement was more robust than that used for cash payors in

Patricia Weatherly’s objection to the re-balanced Track Two
settlement (Docket No. 7764) is overruled.

/s/ PATTI B. SARIS
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE

other AWP-related settlements. In the BMS settlement, for
example, a media-only campaign was used for Class 3. In the
AstraZeneca Non-Massachusetts settlement, which did utilize some
direct mail notice, the Class 3 consumer response rate was less
than one percent. (See Docket. No. 7432.)