CASTRO, M.D., P.A. v. SANOFI PASTEUR INC.

Filing 475

OPINION. Signed by Judge John Michael Vazquez on 10/11/2016. (seb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Not for Publication

ADRIANA M. CASTRO, ET AL,
Plaintffs,
Civil Action No. 11-7178
V.

SANOFI PASTEUR, INC.,

OPINION

Defendant.

John Michael Vazguez, U.S.D.J.
This matter comes before the Court on the motion of Plaintiffs Adriana M. Castro, M.D.,
P.A.; Sugartown Pediatrics, LLC; and Marquez and Bengochea, M.D., P.A., on behalf of
themselves and all others similarly situated (collectively, “Plaintiffs”) for approval of the class
notice dissemination plan (“Notice Plan”) and the proposed short and long forms of class notice
(“Class Notice”) pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), to compel production of
updated class member information, and to limit the class period.1 Sanofi Pasteur, Incorporated
(“Sanofi” or “Defendant”) opposes certain aspects of the motion. The Court has considered the
submissions in support of and in opposition to the motion and decides the matter without oral
argument pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Civil Rule 78.1.
For the reasons stated below, the Court grants in part and denies in part Plaintiffs’ motion.

Plaintiffs’ Brief in support of its Motion will be referred to hereinafter as “P1. Br.” (D.E. 435),
Defendant’s Opposition to Plaintiffs brief will be referred to hereinafter as “DeE Opp’n.” (D.E.
448), and Plaintiffs’ Reply Brief in support of its Motion will be referred to hereinafter as “P1.
R.Br.” (D.E. 459).

I.

BACKGROUND

A. Factual Background

In this class action, Plaintiffs alleged that Sanofi engaged in anti-competitive behavior in
violation of the Sherman Act. This case centers around the sale of pediatric vaccines in the United
States, and the impact of a particular immunization, the meningococcal vaccine.2 Am. Compl. jflj
1-3. Sanofi’s meningococcal vaccine is Menactra. Id.

¶ 2.

Plaintiffs are medical practices who

purchase pediatric vaccines, including Menactra, from Sanofi and its subsidiary VaxServe, Inc.
Id.

¶IJ

8-9.

In the private sector, physicians and hospitals purchase vaccines directly from

manufacturers or from wholesalers of those manufacturers. Id.

¶ 28.

In turn, most physicians and

hospitals purchase their vaccines pursuant to contracts negotiated by Physician Buyer Groups
(PBGs).3
Plaintiffs allege that Sanofi engaged in an anticompetitive scheme to maintain its monopoly
power in the market, which resulted in reduced competition and artificially inflated prices for
pediatric meningitis vaccines. Id.

¶

7. Therefore, Plaintiffs assert that they, and other similarly

situated class members, have been injured by the higher prices they paid on pediatric
meningococcal vaccines. Id.

¶J

140, 141.

In January 2005, the FDA granted Sanofi a license to sell a meningococcal conjugate
vaccine (“MCV4”) under the brand name Menactra. Id.

2

¶ 38.

This was the first vaccine of its kind

Meningococcal vaccines inoculate against bacterial meningitis. Id.

¶ 2.

PBGs consist of thousands of family practices, pediatricians and other independent medical
practices. Id. ¶ 104. PBGs do not actually purchase vaccines. Id. Instead, they “perform various
services on behalf of their members, including coordinating and aggregating member purchases of
vaccines and other healthcare supplies through group purchasing contracts with major vaccine
manufacturers.” Id.
2

sold in the United States. Id. From 2005 to February 2010, Sanofi had 100% of the market for
pediatric meningococcal vaccines because no other company had FDA approval. Id.

¶

52. In

February 2010, the FDA approved Novartis’s MCV4, Menveo,4 for sale in the United States. Id.

¶ 42.

After Novartis entered the market, Sanofi’s share dropped, although it never fell below

eighty percent (80%). Id.

¶ 52.

Plaintiffs’ assert that Sanofi has monopoly power in the relevant market. Id.

¶ 53, 63, 73,

33, 93. Plaintiffs’ central claim is that in response to the introduction of Menveo, Defendant
extended its monopoly power in the meningococcal vaccine market through the use of bundling,
an anticompetitive and exclusionary contracting scheme. Id. ¶13, 103.

Due to Sanofi’s market

monopoly, it was able to market a bundle of products through its contracts with PROs. Id. 1118.
These bundle-pricing contracts allegedly “penalize
Id.

¶

103.

[]

purchasers for buying vaccines from rivals.”

The punishments occur in the form of penalties that force purchasers to pay a

substantially increased price on all of Defendant’s vaccines if they choose to purchase a single
vaccine from a competitor. Id.

¶

109.

Initially, these bundling contracts required purchasers to

buy 90% or more of their pediatric vaccines from Sanofi or “be forced to pay prices 25-35% higher
on all of the vaccines in Sanofi’s pediatric vaccine bundle.” Id.

¶

106. However, in 2010, as a

response to Novartis’s release of Menveo, Defendant altered many of the bundling contracts by
increasing the pediatric vaccine purchasing requirement from 90% to 100%. Id.

¶

107.

Plaintiffs claim that since Novartis did not produce any pediatric vaccine other than
Menveo, Novartis was unable to counter Sanofi’s bundling scheme, forcing Plaintiffs to pay

Plaintiffs allege that although Sanofi’s Menactra and Novartis’s Menveo are similar vaccines that
inoculate against the same bacterial meningococcal serogroups. Id. ¶ 42.
Plaintiffs assert that there are potentially five product markets relevant to their claim and that
Sanofi has monopoly power in each one. Id.
3

inflated prices.

Id.

¶

128.

In other words, the “effect of Sanofi’s exclusionary bundle and

anticompetitive contracting scheme was that Plaintiffs and members of the proposed [cJlass have
paid artificially inflated prices for meningococcal vaccines.” Id.

¶

140.

B. Procedural Background

On December 9,2011, Plaintiffs filed their initial Complaint. Subsequently, Plaintiffs filed
their First Consolidated Amended Class Action Complaint on January 20, 2012.

D.E. 28.

Plaintiff’s Amended Complaint is comprised of two counts alleging violations of the Sherman Act:
Count 1—Monopolization of the Meningococcal Vaccine Market in contravention of 15 U.S.C.
2, and Count 11
of 15 U.S.C.

§

—

§

Anti-Competitive Agreements in Unreasonable Restraint of Trade in violation

1. Defendant filed a motion to dismiss on August 6, 2012, which was subsequently

denied. D.E. 106, 107. Defendant then filed a counterclaim, without an answer, against “the Class
Representatives and each opt-in member or non-opt-out member of any class that may be certified
in this action.”

D.E. 54

¶

2.

Essentially, Defendant accused Plaintiffs of engaging in anti-

competitive behavior through the PBGs.

The Court dismissed Defendant’s counterclaim on

procedural grounds. D.E. 100. Defendant responded by refiling the counterclaim along with an
answer. D.E. Ill. On December 20, 2012, the Court once again dismissed Sanofi’s counterclaim,
this time on the merits. D.E. 135, 136.

As to Sanofi’s counterclaim that Plaintiffs engaged in a

per se antitrust violation, the count was dismissed with prejudice.

As to the counterclaim

concerning an antitrust violation based on a “rule of reason” analysis, the claim was denied without
prejudice because it was not plausibly pled. Sanofi did not attempt to amend the counterclaim to
satisfy the plausibility requirement. Instead, Sanofi sought the entry of a final judgment or for
leave to file an interlocutory’ appeal, both of which the Court denied. D.E. 169, 170.

4

On September 30, 2015, the Court granted Plaintiffs’ motion for class certification and
denied Sanofi’s motion to exclude Plaintiffs’ expert economist. D.E. 415, 416. The parties then
exchanged drafts of proposed class notice but could not come to an agreement on the content. See
P1. Br. at 6-7. Therefore, Plaintiffs filed the instant motion on April 13, 2016. outlining their
proposed class notice and requesting a class end date of December 31, 2015. as well as asking the
Court to compel Sanofi to update its production of transactional data through that date.
Defendant opposes this motion in part. Def. Opp’n.

Id.

Defendant seeks the addition of certain

language in the class notice, requests a class period end date of December 31, 2013 and opposes
Plaintiffs’ request for class member information beyond that date. Id. at 28-30.
El. DISCUSSION
A. Adequacy of Plaintiffs’ Notice Plan
Rule 23(c)(2)(B) of the Federal Rules of Civil Procedure governs class notice for classes
certified pursuant to subsection (b)(3). The rule provides that “[for any class certified under Rule
23(b)(3), the court must direct to class members the best notice that is practicable under the
circumstances.” The best notice practicable includes “individual notice to all members who can
be identified through reasonable effort.” Albenon

i’.

Commonwealth Land Title Ins. Co., No. 06-

3755. 2010 WL 1049581, at *3 (E.D. Pa. Mar. 17. 2010). Due process also requires that notice be
“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.” Alit/lane v. Central
HanoierBank& Trust Co., 339 U.S. 306, 314 (1950).
Here, Plaintiffs propose a Notice Plan made in conjunction with Rust, an experienced classaction consultation firm. P1. Br. at 7. Plaintiffs Notice Plan would provide notice to approximately
26,000 potential class members and includes (I) direct mailing of the long form notice; (2)

5

publishing the short form notice in the medical journal Pediatrics; (3) developing and maintaining
a litigation specific website; and (4) establishing a litigation specific toll-free telephone number.
Id. at 7-8. Defendant does not object to Plaintiffs Notice Plan. Def. Opp’n at 1.
“[F]irst-class mail and publication regularly have been deemed adequate under the
notice requirements

...

of Rule 23(c)(2).” Zimmer Paper Prods., Inc.

i’.

Berger & Montague, P.C.,

758 F.2d 86, 91 (3d Cir. 1985). Plaintiffs have hired an established class-action consulting firm
and set forth a detailed Notice Plan that includes both direct mailing via first class mail and
publication. P1. Br. at 10-Il. Therefore, the proposed Notice Plan satisfies Rule 23’s requirements
for method of distribution and it is approved.
B. Adequacy of Plaintiffs’ Proposed Class Notice
Rule 23(c)(2)(B) requires the following:
notice must clearly and concisely state in plain, easily understood
language: (i) the nature of the action; (ii) the definition of the class
certified; (iii) the class claims, issues, or defenses; (iv) that a class
member may enter an appearance through an attorney if the member
so desires; (v) that the court will exclude from the class any member
who requests exclusion; (vi) the time and manner for requesting
exclusion; and (vii) the binding effect of a class judgment on
members under Rule 23(c)(3).
In addition to being clear and concise, class notice must be neutral and avoid endorsing the
merits of the claim. See Hoffman La—Roche

i’.

Sperling, 493 U.S. 165, 173 (1989) (“In exercising

the discretionary authority to oversee the notice-giving process, courts must be scrupulous to
respect judicial neutrality.”); Korrow v. Aaron’s Inc., No. 10-6317, 2015 WL 7720491, at *9
(D.N.J. Nov. 30, 2015) (same); see also In re Deepwater Horizon, 739 F.3d 790, 819 (5th Cir.)
(“[C]lass notice must describe the proceedings in objective, neutral terms.”) (internal quotation
marks omitted).

6

The Court finds that Plaintiffs have largely met the requirements of Rule 23(c)(2)(B). The
Class Notice sets forth the basic components of the class, including the existence of the class
action, the requirements for opting out, and the effects of a final judgment. See P1. Br. Ex. 2 (“P1.
Short Form”) & Ex. 3 (“P1. Long Form”). Defendant raises numerous issues with Plaintiffs’
proposed Class Notice. See Def. Opp’n. Overall, there are three main areas in which the parties
disagree as to the content of the notice, which can broadly be described as (1) Defendant’s theory
of the case; (2) Defendant’s Counterclaim; and (3) the appeals process. The Court will address
each category in turn.
1. Defendant’s theory of the case
The first disagreement relates to one of Defendant’s proposed theories of the case

—

that

the lawsuit grew out of a conspiracy between Novartis and Plaintiffs’ counsel. Del Opp’n at 4.
Defendant argues that this theory should be included in the notice since class members are entitled
to a “description of the nature of the defenses in the case.” Id. at 3. Since the Novartis conspiracy
“directly bears on whether Novartis’s testimony on this subject is credible,” Sanofi requests that
this Court include this defense. Id. at 14. Plaintiffs oppose Defendant’s inclusion of this theory
on the basis that is has “no bearing whatsoever on whether Sanofi’s conduct was illegal, and [is]
irrelevant to any claim or defenses in this case.” P1. Br. at 19. Additionally, Plaintiffs argue that
Sanofi’s language is intended to be inflammatory in nature and therefore is not a neutral statement
of the case. Id. at 18-19.
This language discrepancy appears in both the proposed short and long fonE notice. In the
short form notice, Plaintiffs propose the following:
Sanofi denies these allegations. It asserts that its contracts and
conduct benefitted Class members in the form of lower prices for
MCV4 Vaccines. It asserts that Novartis’s entry was not foreclosed,
but was in fact successful, and that Novartis was both profitable and
7

a viable competitor to Sanofi for MCV4 vaccines. Sanofi also
denies that Sanofi and Novartis would each have lowered their
prices absent Sanofis contracts and conduct.

P1. Short Form at I. Defendant’s counter-proposal is as follows6:
Sanofi denies the allegations. It asserts that this lawsuit grew out of
a conspiracy between Novartis and plaintiffs’ counsel to prevent
price competition from Sanofi (for Novartis’s benefit) and to reap
large attorney’s fees (for class counsel’s benefit), and to use the
court system to bring a baseless and unsubstantiated claim. Sanofi
also asserts that its conduct, including its discounting practices, is
procompetitive. Sanofi also denies that Novartis was foreclosed
from the market. Finally, Sanofi denies that Plaintiffs’ claim that
Novartis would have initiated a price war but for Sanofi’s discounts
has any factual or legal merit.
—

—

Def. Short Form at 1.
In the proposed long form notice, the disputed language appears in “Section 2: What is this
lawsuit about?” In Section 2, Plaintiffs propose the following:
Sanofi denies the allegations. Sanofi asserts that Sanofi’s conduct,
including its discounting practices, benefits purchasers of MCV4
Vaccines and consumers more generally, that it did not engage in
any illegal conduct, that its actions did not raise prices to
noncompetitive levels, and that any alleged anticompetitive effects
from its conduct are outweighed by the conduct’s procompetitive
effects. Sanofi also denies that Novartis’s entry was foreclosed and
that Sanofi and Novartis would each have lowered their prices
absent Sanofi’s contracts and conduct.
P1. Long Form at 37 Defendant, alternatively, proposes the following:
Sanofi denies the allegations. It asserts that this lawsuit grew out of
a conspiracy between Novartis and plaintiffs’ counsel to prevent
6

Defendant’s Long Form Notice will be referred to hereinafter as “DeE Long Form” (D.E. 449,
Ex. I). Defendant’s Short Form Notice will be referred to hereinafter as “Def. Short Form” (D.E.
449, Ex. 3).
The Court notes that the issue of whether or not Sanofi was “discounting” is a factual issue to be
determined at trial. However, since Plaintiffs agreed to this language the Court will leave in the
reference to Sanofi’s discounting practices in this section of the notice.
8

price competition from Sanofi (for Novartis’s benefit) and to reap
large attorney’s fees (for class counsel’s benefit), and to use the
court system to bring a baseless and unsubstantiated claim. Sanofi
specifically alleges that at least one of the attorneys appointed as
“Co-Lead Counsel” was involved in this activity. Sanofi also asserts
that its discounting practices lower prices and provide substantial
consumer benefits that outweigh any potential anticompetitive
effect. Sanofi also denies that Novartis was foreclosed from the
market. Rather, Sanofi asserts that Novartis was highly successfl.il
given its status as a late-to-market, me-too product with serious
drawbacks including the need for reconstitution, a limited age
indication (during most of the relevant period), and a defective
stopper (at time of launch). Finally, Sanofi denies (on both factual
and legal grounds) any contention that Novartis would have initiated
a price war but for Sanofi’s discounts.
Def. Long Form at 4.
The Court finds that Plaintiffs’ language is a sufficiently’ clear, concise and neutral
statement of the case, therefore it satisfies Rule 23(c)(2)(B) and it is approved. The Court rejects
Defendant’s language for numerous reasons. Most importantly, Defendant’s language is not a
neutral statement of the case as is required in the context of class notice. See In re Farmers Gip.
Stock Options Litig., No. 88-4994, 1991 WL 332500, at *4 (E.D. Pa. Dec. 19, 1991) (“[Class
Notice] must

[]

be neutral in its description of class member options.”). Instead it is an advocacy

piece written in an inflammatory manner, such as accusing opposing counsel of engaging in
improper conduct. Plaintiffs proposed language captures the essence of Defendant’s position but
does so in a neutral manner. See Fed. R. Civ. P. 23(c)(2)(B) (“The notice must clearly and
concisely state in plaIn, easily understood language

...

(iii) the class claims, issues. or defenses.”)

(emphasis added).
For example, as to the alleged “conspiracy,” there has been no judicial determination that
any evidence of the allegations will be admissible, and if so, to what extent it will be admitted.
More importantly, the alleged conspiracy is neither a recognized affirmative defense nor a viable
counterclaim. Instead, if admissible, it could potentially be used to impeach credibility or address
9

an element of Plaintiffs’ case, that Novartis was foreclosed from a substantial share in the relevant
market. Defendant can indicate (as Plaintiffs’ proposal does) that it denies the claims and intends
to defend the matter. The basis for potential attacks on potential witnesses’ credibility are not
appropriate in class notice.
Moreover, Defendant’s use of the term conspiracy is erroneous as a matter of law.
Defendant alleges, in part, that Plaintiffs’ counsel conspired to get large attorneys’ fees. To be
viable, a civil conspiracy claim must allege an agreement to commit an unlawful act or to commit
a lawful act by unlawful means. See Banco Popular N. America

Gandi, 184 N.J. 161, 178

(2005). Here, Plaintiffs’ counsel fees are not an unlawful act and receiving such fees (should
Plaintiffs succeed) through the lawsuit is not a prohibited means.

In addition, permitting

Defendant to insert such language would require the Court, in fairness, to permit Plaintiffs to
respond that counsel fees will only be awarded if Plaintiffs’ prevail in a legally viable case. Such
point and counterpoint are inappropriate in class notice.
Before leaving the conspiracy issue, the Court notes that Defendant’s arguments
concerning its conspiracy theory are inaccurate.

First, in reciting to decisions by the Special

Discovery Master (“SDM”), the Magistrate Judge, and the Honorable John J. Tharp, Jr., U.S.D.J.
of the Northern District of Illinois, Sanofi claims that both the SDM and the courts adopted certain
positions. Def. Opp’n at 5-6. In reality, the SDM, the magistrate, and Judge Tharp merely recited
Sanofi’s position. Unfortunately, Sanofi then cited the recitation of its position as though it had
actually been adopted by the SDM or the judges. For example, Sanofi argues that the SDM found
that “Sanofi had presented evidence tending to show that ‘it is Novartis, not the named plaintiffs,
who are the real parties in interest in this case and the named plaintiffs are being used as a ‘stalking
horse ‘by Novartis to prosecute this action[.]” Id. (emphases in the original). However, the 5DM

10

made no such finding. Instead, in his introduction, the 5DM merely stated Sanofi’s position:
“Sanofi claims it is Novartis, not the named plaintiffs, who are the real parties in interest in this
case and that the named plaintiffs are being used as a ‘stalking horse’ by Novartis to prosecute this
action.” D.E. 229 at I.
Second, and critically, the issue before the 5DM, the magistrate, and Judge Tharp was
limited to whether Sanofl could take discovery on its conspiracy theory. Of course, the standard
for discovery is much more lenient than the standard for admissibility at trial. As to discovery, all
Sanofi had to demonstrate was that the discovery sought was “reasonably calculated to lead to the
discoveryofadmissibleevidence.” Fed. R. Civ. P. 26(b)(1). The SDM, the magistrate, and Judge
Tharp merely ruled that Sanofi had met its modest burden of demonstrating relevancy for purposes
of taking discovery. None ruled that such information was in fact relevant for purposes of trial,
and indeed, none could so rule having no knowledge as to the information that would thereafter be
produced in discovery. Perhaps Judge Tharp stated it best when he indicated that “[a]ny misuse
of information obtained pursuant to this subpoena, or detennination concerning its ultimate

relevance and admissibility, can be addressed to the trial court dowii the road, in the specific
context in which such issues may arise.” Def. Opp’n, Ex. 5 at 6 (emphasis added).
In addition, Defendant stated as fact that which is actually argument and omitted factual
information needed to understand the proper context of the asserted facts. For example, Defendant
claims that Plaintiffs’ counsel nefariously “backdated” a retainer with an expert in an effort to
bring prior communications with the expert under the umbrella of privilege. Id. at 9. In fact, the
retainer was dated January 6, 2012, signed January 11, 2012, and expressly made retroactive to
September 1,2011. DX 389. Another example can be found in Sanofi’s assertion that “Novartis
also engaged ‘counsel (both internal and external) regarding options,’ but was quickly informed

II

that any claim lacked merit.” Def. Opp’n. at 7. Yet, a review of a document cited by Sanofi,
DX408. quickly reveals that this was not counsel’s position. Instead, the attorney simply indicated
that a possible relevant question is “whether the foreclosure is so large that the entrant will likely
lose money.” Counsel also apparently observed that an analysis of Defendant’s conduct in light
of the relevant test in the Ninth Circuit for anticompetitive bundling was on point. Sanofi is free
to argue any reasonable inferences to be drawn from the facts. However, Sanofi may not assert as
fact that which is actually argument (stating that a document was “backdated” when it was instead
made expressly retroactive) and it may not omit facts necessary for a complete and accurate
understanding of its asserted evidence.
Defendant’s proposed language is also unnecessary, in the context of class notice, for other
reasons. Defendant asserts that the litigation is “baseless and unsubstantiated[.]”

Whether

Plaintiffs’ claim is actually baseless and unsubstantiated, as a matter of law, will be determined at
summary judgment or at trial in response to motion practice. In addition, the issue of whether
Sanofi was discounting its prices is a contested factual dispute. Plaintiffs have submitted evidence
that once Menveo was coming to market, Sanofi increased its vaccines prices. The “discount”
offered by Sanofi, if customers complied with the bundling requirements, was simply a return to
the pre-Menveo prices. As opposed to wading into the issue of whether the discount was actually
a discount in the class notice, Plaintiffs’ proposed language that Sanofi’s actions benefitted class
members in the “form of lower prices” captures Defendant’s basic position in a neutral manner.
Overall, and as noted above, Plaintiffs’ proposed language includes the essence of Sanofi’s
position and does so in a neutral manner. In fact, Sanofi has not argued that Plaintiffs’ description
is inaccurate or misleading.

Instead, Defendant’s position is merely that it prefers its

12

characterizations. However, for the foregoing reasons, the Court will approve Plaintiffs proposed
language.
2. Defendant’s Counterclaim
The next line of disagreement is whether references to Defendant’s twice-dismissed
counterclaim should be included in the Class Notice. In the short form notice, Plaintiffs propose
the following under the Section “What are your options?”:
Stay in the Class: To stay in the Class, you do not have to do
anything now. You will be bound by the Court’s decisions and will
lose any right to sue Sanofi over the antitrust claims in this case.
.com to be notified if any
You may register at www.
about how to ask for a share.
money is awarded, and ask
P1. Short Form at 2. Defendant’s proposed notice adds the following to the section above:
In addition, you may become subject to a Counterclaim that Sanofi
seeks to assert. While that Counterclaim has been dismissed by the
District Court, it remains subject to appeal. The effect of the
Counterclaim on class members, should it be reinstated on appeal,
is not yet known but may involve the imposition of liability on each
class member.
DeE Short Form at 2.
Similarly, in the long form notice, under the Section titled “Your Legal Rights and Options
in this Class Action Lawsuit,” Plaintiffs propose the following language:
By doing nothing, you keep the possibility of getting money or other
benefits that may come from a trial or a settlement. But you give up
any rights to sue Sanofi on your own about the same legal claims in
this lawsuit. See Question 8.
P1. Long Form at 2. Defendant suggests adding the following to the end of Plaintiffs’ proposed
text above:
In addition, you may become subject to a Counterclaim that Sanofi
seeks to assert. While that Counterclaim has been dismissed by the
District Court. it remains subject to appeal. The effect of the
Counterclaim on class members, should it be reinstated on appeal,
13

is not yet known but may involve the imposition of liability on each
class member.
DeE Long Form at 2.
Additionally, in Defendant’s long form notice, it adds the following paragraph to the end
of Section 2: “What is this lawsuit about?”:
In addition, Sanofi filed a Counterclaim against all individuals and
entities who are part of Plaintiffs’ Class. Sanofi claims that such
class members have violated Section 1 of the Sherman Act by
agreeing not to compete in the market for the purchase of relevant
vaccines. The Counterclaim seeks treble damages, attorneys’ fees,
and other relief On December 20, 2012, the Court dismissed
Sanofi’s Counterclaim, and on April 9,2013, the Court ordered that
any appeal must wait until after it enters judgment on the entire case.
Accordingly, Sanofi has not yet had the opportunity to appeal the
decision dismissing the Counterclaim; nor has there been any
decision concerning the impact, if any, on class members who
remain part of the case in the event that the decision dismissing the
Counterclaim is reversed.
Def. Long Form at 4.
The language referencing Defendant’s counterclaim will not be included in either the short
or long form notice. To date, the counterclaim has been dismissed twice, once for procedural
reasons and once on substantive grounds. D.E. 111. 135. See Korrow, 2015 WL 7720491, at *9
(refusing to include Defendant’s dismissed counterclaims in the class notice). If the counterclaim
is reinstated on appeal, it will be subject to discovery and additional motion practice at the trial
level. At that point, the Court can order that amended notice be sent to the class if appropriate.

ci Gardner v

Gold Strike Stamp Co., Case No. C 250-68, 1970 WL 554 (D. Utah 1970).

3. The Appeals Process
The final category in contention involves language that relates to the appeals process of
this action. Specifically, Plaintiffs propose the following language in their long form notice:

14

Lawyers must prove the claims against Sanofi at trial. If money or
benefits are obtained from Sanofi, you will be notified about how to
ask for a share if you did not exclude yourself from the class.
P1. Long Form at 2. Defendant proposes to amend the above-paragraph as follows:
Lawyers must prove the claims against Sanofi at trial, and the
no
determination by the trial courts is subject to appeal:
determination will be final until after the appeals process is
complete. If money or benefits are obtained from Sanofi, you will
be notified about how to ask for a share if you did not exclude
yourself from the class.
Def. Long Form at 2. The Court Orders Plaintiffs to amend their notice to read:
Lawyers must prove the claims against Sanofi at trial. Aax
determination at the trial level is subiect to appeal by either
party. If money or benefits are obtained from Sanofi. you will be
notified about how to ask for a share if you did not exclude yourself
from the class.
(emphasis added). The Court finds this sentence clearer and more concise than Defendant’s
proposed language. It provides the potential class members with information regarding the appeals
process in a simple and understandable manner and expressly notes that either party has the right
to appeal.
Similarly, on page four of Defendant’s proposed long form notice, it states:
The Court has not decided which side is correct. The lawyers for
the Class will have to prove their claims at trial, and if they prevail,
Sanofi will have the opportunity to appeal the trial court’s decision;
no determination will be final until after the appeals process is
complete.
Def. Long Form at 4. The Court finds that the following more aptly describes the appeals process:
“The lawyers for the Class will have to prove their claims at trial. Any determination at trial
is subject to appeal by either party.” Again, not only is this language clearer and more concise,
it correctly notes that either side may appeal an adverse finding.

15

The last section addressing the appeals process is “Section 13: How and when will the
Court decide who is right?” Def. Long Form at 8. Here, Sanofi adds in the following sentence at
the end of the Section: “Any determination by the trial court is subject to appeal: no determination
will be final until after the appeals process is complete.” Id. The Court amends the long form
notice to state the following: “As noted, either parb’ has the right to appeal any decision made
at the trial court level.”
Accordingly, subject to the addition of these three statements concerning the appeals
process, the Court approves Plaintiffs’ proposed Class Notice.
C. End date and compelling class member information
Plaintiffs Motion additionally requests a modification of the Class Period to provide for a
definitive end date of December 31, 2015. P1. Br. at 1-2. Plaintiffs argue that their proposed end
date “best balances the rights of absent [c]lass members to recover for Sanofi’s unlawful conduct
with the administrative feasibility of the notice campaign, helping to ensure that [cjlass members
receive the best notice practicable under the circumstances as well as promote judicial efficiency
and economy as the case proceeds.” Id. at 21. In conjunction with this request, Plaintiffs ask “that
the Court compel Sanofi to update its production of transactional data to allow Plaintiffs to provide
direct notice to as many [cjlass members as possible.” Id. at 2. Plaintiffs argue that this data would
“help[j afford those who joined the [c]lass between November 2013 and December 2015 direct
notice of the Court’s certification order.” Id. at 12.
Defendant agrees that the class should be given a definitive end date, however it argues
that the end date should be December 31, 2013, when fact discovery closed. DeE Opp’n at 28.
Defendant further argues that there was a shift in the market after December 31, 2013, and
Plaintiffs cannot show that injury occurred after this date. Id. at 29. Therefore, Defendant asks

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this Court to deny Plaintiffs’ motion to limit the class period to December 2015, and their related
motion to compel. Id. at 30.
The Court agrees that a definitive end date should be set. Defendant offers the end of
discovery as an end date, while acknowledging that sometimes a class is given an end date as of
the date of class certification. Id. at 28. Plaintiffs offer an end date based on administrative
P1. Br. at 21. The Court disagrees with both parties and finds that the end date

convenience.

should be December 31, 2014 for the reasons that follow. C’f Banies v. American Tobacco Co.,
161 F.3d 127, 140 (3d Cir. 1998) (“Under Rule 23(c)(1), District Courts are required to reassess
their class rulings as the case develops.”); In re Resource America Securities Litig., 202 F.R.D.
177, 186 (ED. Pa. 2001) (setting a definitive end date and finding that district courts “retain the
discretion to redefine the length of the class should that become necessary.”).
Plaintiffs provide no authority for the proposition that the Court can set an end date based
solely on concerns of administrative convenience. Plaintiffs’ proposed end date appears entirely
arbitrary. Defendants, on the other hand, fail to support their representations as to the alleged
market shift after December 2013.
Here, GSK bought, among other things, Menveo from Novartis in January, 2015. Since
Plaintiffs damages are based on Novartis being substantially foreclosed from the market, the entire
analysis for Plaintiffs damages would change after the date Menveo was purchased by GSK.
Plaintiffs have not raised any argument that the complained of conduct continued following the
GSK purchase.

This Court finds that the most reasonable end date is December 31, 2014,

immediately before Menveo was sold. Thus, the modified Class definition reads:
[a]ll persons or entities in the United States and its territories that
purchase Menactra directly from defendant Sanofi Pasteur Inc.
(“Sanofi”) or any of its divisions, subsidiaries, predecessors or
affiliates, such as VaxServe, Inc., during the period from March 1,
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2010 through and including December 31, 2014 (“Class Period”),
and excluding all governmental entities, Sanofi, Sanofi’s divisions,
subsidiaries, predecessors, and affiliates Kaiser Permanente and the
Kaiser Foundation (collectively, “Kaiser”), and any purchases by
entities buying Menactra pursuant to a publicly-negotiated price
(i.e., governmental purchasers).
Since the Class end date will be December 31, 2014, the Court will compel Sanofi to
provide transactional data of class members up to and including that date. See Hojfinan-La Roche
Inc. v. Sperling, 493 U.S. 165, 468 (1989) (finding that the district court was correct to permit
discovery of information of the potential class members in facilitating notice).

Therefore,

Plaintiffs’ request to compel transactional data is granted up to December31, 2014.

4. CONCLUSION
For the reasons set forth above and for good cause shown, the Court GRANTS IN PART
AND DENIES IN PART Plaintiffs’ motion. The Court GRANTS Plaintiffs’ request for approval
of the class notice dissemination plan and the proposed short and long forms of class notice
pursuant to Federal Rule of Civil Procedure 23(c)(2)(B), subject to the additional language
concerning the appeals process referenced above. The Court DENIES Plaintiffs’ proposed end
date and sets forth an end date of December 31, 2014. The Court also PARTIALLY GRANTS
Plaintiffs’ request to compel production of updated class member information up to and including
December 31, 2014. An appropriate form of order accompanies this opinion.

Date: October 11,2016

JOHN MICHAEL VAN

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z

UNITED STATES DISTWCT

DGE