IN RE NAMENDA INDIRECT PURCHASER ANTITRUST LITIGATION

Filing 514

ORDER PRELIMINARILY APPROVING END-PAYOR PLAINTIFF'S SETTLEMENT WITH TEVA PHARMACEUTICALS USA, INC., TEVA PHARMACEUTICAL INDUSTRIES LTD., BARR PHARMACEUTICALS, INC. (n/k/a Barr Pharmaceuticals, LLC), AND COBALT LABORATORIES, INC (n/k/a Cobalt Laboratories, LLC): The EPP Class has thousands of members geographically dispersed throughout the United States and its territories. Pursuant to Rule 23(a)(1), the Court determines that the EPP Class is so numerous that joinder of all members is impracticable. 3. Pursuant to Fed. R. Civ. P. 23(c)(1)(B), the Court determines that, in connection with and solely for purposes of settlement, the following issues relating to claims (expressed in summary fashion) and/or defenses posed by Defendants present common, class-wide questions, as further set forth. 11. All litigation activity against the Teva Defendants is hereby stayed, other than as provided for in the Settlement Agreement, and all hearings, deadlines, and other proceedings related to EPP's claims against those Defendants, other than those incident to the settlement process, are hereby taken off calendar. The stay shall remain in effect until further order of this Court. 12. In the event that the Teva Settlement fails to become effective in accordance with its terms, or if an Order granting final approval to the Settlement and dismissing EPP's claims against those Defendants with prejudice is not entered or is reversed, vacated, or materially modified on appeal, this Order shall be null and void. 13. In the event that either the Teva Settlement is terminated, not approved by the Court, or the respective Settlement does not become final pursuant to the terms of the respective Settlement, litigation against those Defendants shall resume in a reasonable manner as approved by the Court. 14. Nothing herein shall be deemed an admission by the Teva Defendants of any wrongdoing or any unlawful conduct, and nothing herein shall be deemed to constitute a waiver by the Teva Defendants of any right to contest, should the litigation resume against the Teva Defendants. 15. The Court retains exclusive jurisdiction to consider all further matters arising out of or connected with the Settlement Agreement. (Signed by Judge Colleen McMahon on 10/13/2020) (mml)

Case 1:15-cv-06549-CM-RWL Document 514 Filed 10/13/20 Page 1 of 7
Case 1:15-cv-06549-CM-RWL Document 468-1 Filed 08/28/20 Page 1 of 7
USDCSDNY

DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

IN RE NAMENDA INDIRECT PURCHASER
ANTITRUST LITIGATION
SBF Action

)
)
)
)
)
)
)

DOC#:
DATE FILED:

1

le 1J l'Jo).,o

No.: 1:15-cv-06549-CM-RWL

--------------------)

/"(f'RJPCSLJJ ORDER PRELIMINARILY APPROVING END-PAYOR
PLAINTIFF'S SETTLEMENT WITH TEVA PHARMACEUTICALS USA, INC.,
TEVA PHARMACEUTICAL INDUSTRIES LTD., BARR PHARMACEUTICALS, INC.
(n/k/a Barr Pharmaceuticals, LLC), AND COBALT LABORATORIES, INC
(n/k/a Cobalt Laboratories, LLC)

WHEREAS, on July 31, 2020, End-Payor Plaintiff, Sergeants Benevolent Association
Health & Welfare Fund ("Plaintiff'), on behalf of itself and the proposed End-Payor Class for
purposes of a Settlement Class (the "EPP Class") and Defendants Teva Pharmaceuticals USA,
Inc.,

Teva

Pharmaceutical

Industries

Ltd.,

Barr

Pharmaceuticals,

Inc.

(n/k/a

Barr

Pharmaceuticals, LLC), and Cobalt Laboratories, Inc. (n/k/a Cobalt Laboratories, LLC)
(together "Teva Defendants"), entered into a settlement agreement (the "Teva Settlement"),
which sets forth the terms and conditions of the parties' proposed settlement and the release
and dismissal with prejudice of EPP Class· claims against the Teva Defendants;
WHEREAS, on A ugust 28, 2020, Plaintiff filed a Motion for Preliminary Approval of
Proposed Class Action Settlements with the Teva Defendants ("EPPs' Motion"), requesting the
entry of an Order: (i) preliminarily approving the respective Settlements; (ii) certifying the EPP
Class for purposes of the respective Settlements pursuant to Fed. R. Civ. P. 23; (iii) approving
A.B . Data, Ltd. as the notice / claims administrator; (iv) appointing Bank Leumi Escrow agent;
(v) designating the named Plaintiff as Class Representative for the EPP Class; and (vi)

Case 1:15-cv-06549-CM-RWL Document 514 Filed 08/28/20 Page 2 of 7
Case 1:15-cv-06549-CM-RWL Document 468-1 Filed 10/13/20 Page 2 of 7

designating Marvin A. Miller and Lori A. Fanning of Miller Law LLC and Peter Safirstein and
Elizabeth Metcalf of Safirstein Metcalf LLP, as Co-Lead Class Counsel; (vii) approving Bank
Leumi USA as Escrow Agent; (viii) deferring notice to the Class; and (ix) staying all
proceedings between the Teva Defendants and Plaintiff other than as provided for in the
respective Settlement Agreement. A copy of the Teva Settlement Agreement is attached as
Exhibit 1 to the Joint Declaration of Marvin A. Miller and Peter Safirstein in support of EPP's
Motion;
WHEREAS, the Teva Defendants do not oppose Plaintiffs request;
WHEREAS, the Court is familiar with and has reviewed the record in this case and has
reviewed the T eva Settlement Agreement, and finds good cause for entering the following
Order.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
Certification of the Proposed EPP Class for Purposes of the Teva Defendants'
Settlement

The Court makes the following determinations as required by Rule 2S solely m
connection with the proposed Settlement:
1.

Pursuant to F ed. R. Civ. P. 23(c)(l)(B), the Teva Settlement Class is defined as:

All persons or entities in the United States and its territories who
indirectly purchased, paid and/or provided reimbursement for
some or all of the purchase price for branded N amenda IR 5 or
10 mg tablets, their AB-rated generic equivalents, and/or Namenda XR
capsules, for consumption by themselves, their families, or their
members, employees, insureds, participants, or beneficiaries,
other than for resale, at any time during the period from April
14, 2010 and continuing until the anticompetitive effects of
[Settling Defendants'] unlawful conduct ceases (the "Class
Period").

2

Case 1:15-cv-06549-CM-RWL Document 514 Filed 08/28/20 Page 3 of 7
Case 1:15-cv-06549-CM-RWL Document 468-1 Filed 10/13/20 Page 3 of 7

The following persons or entities are excluded from the proposed Teva Settlement
Class:

(a) Defendants and their respective subsidiaries and affiliates; (b) fully insured health
care plans (i.e., health care plans that purchased insurance from a third-party payer
covering 100% of a plans reimbursement obligation to its members); (c) all persons
or entities that purchased branded Namenda IR 5 or 10 mg tablets, their AB-rated
generic equivalents, and/or Namenda XR capsules for purposes of resale or directly
from a Defendant; (d) insured individuals covered by plans imposing a flat dollar copay that was the same dollar amount for generic as for brand drug purchases; (e)
pharmacy benefit managers without capitation contracts; (f) all judges presiding in
this case and all counsel of record; and (g) all federal or state governmental entities,
excluding cities, towns or municipalities with self-funded prescription drug plans.
2.

The EPP Class has thousands of members geographically dispersed throughout

the United States and its territories. Pursuant to Rule 23 (a)(l ), the Court determines that the
EPP Class is so numerous that joinder of all members is impracticable.
3.

Pursuant to Fed. R. Civ. P. 23 (c)(l)(B), the Court determines that, in connection

with and solely for purposes of settlement, the following issues relating to claims (expressed in
summary fashion ) and / or defenses posed by Defendants present common, class-wide questions:
a.

Whether the conduct challenged by the EPP as anticompetitive in EPP's

Second Amended Consolidated Class Action Complaint (ECF No. 265) ("CAC") constitutes an
unlawful restraint of trade and monopolization and violates state antitrust, consumer
protection, and unjust enrichment law;
b.

Whether

the challenged conduct substantially affected

interstate

commerce and caused antitrust injury-in-fact to the EPP Class, in the nature of overcharges
paid indirectly by the EPP Class for brand or generic N amenda; and
c.

The amount of overcharge damages, if any, owed to the EPP Class in the

aggregate.

3

Case 1:15-cv-06549-CM-RWL Document 514
Case 1:15-cv-06549-CM -RWL Document 468-1 Filed 10/13/20 Page 4 of 7
08/28/20 Page

The Court finds and determines that the foregoing class-wide issues relating to claims
and / or defenses are questions of law or fact common to the EPP Class that satisfy Rule
2S(a)(2).
4.

The Sergeant Benevolent Association Health & Welfare Fund 1s hereby

appointed as representative of the Class, for the following reasons:
a.

The Plaintiff alleges on behalf of the E P P Class the same manner of

injury from the same course of conduct that they complain of, and the Plaintiff asserts on its
own behalf the same legal theory that it asserts for the EPP Class. The Court, therefore, finds
and determines that the Plaintiffs claims are typical of the claims of the proposed EPP Class
within the meaning of Rule 2S(a)(S); and
b.

Pursuant to Rule 2S(a)(4), the Court finds and determines, that Plaintiffs

interests in connection with settlement do not conflict with the interests of absent members of
the EPP Class. All of the members of EPP Class share a common interest in proving the
Defendants' alleged anti-competitive conduct, and all members of the EP P Class share a
common interest in recovering the overcharge damages sought in the CAC.

Counsel for

Plaintiff are well-qualified to represent the EPP Class in this case, given their experience in
prior cases and the vigor with which they have prosecuted this action thus far.
5.

Pursuant to Rule 23(b)(3), the Court determines that, in connection with and

solely for purposes of settlement, common questions of law and fact predominate over
questions affecting only individual members of the EPP Class. The class-wide claims alleged
by the EPP Class, the defenses asserted by D efendants, the issues in this action that are subject
to generalized proof, which are thus applicable to the E P P Class as a whole, predominate over
those issues that are subject only to individualized proof.

4

Case 1:15-cv-06549-CM-RWL Document 514
Case 1:15-cv-06549-CM-RWL Document 468-1 Filed 10/13/20 Page 5 of 7
08/28/20

6.

Also pursuant to Rule 23(6)(3), the Court determines that, in connection with

and solely for purposes of settlement, a class action is superior to other available methods for
the fair and efficient adjudication of this action. The Court also believes that there are no
disabling manageability problems presented.
7.

Pursuant to Fed. R. Civ. P . 2S(c)(l)(B) and 23(g), the Court, having considered

the factors provided in Rule 2S(g)( 1)(A), hereby appoints the following counsel as Co-Lead
Counsel for the End-Payor Settlement Classes ("Plaintiffs' Co-Lead Class Counsel") consistent
with the Court's Order dated June 4, 2019 (ECF No. 267), and the duties and responsibilities
described in that Order:
Marvin A. Miller
Lori A. Fanning
MILLER LAW LLC
11 5 South LaSalle Street, Suite 291 O
Chicago, IL 60603
Tel: [phone]
Email: [e-mail]
Email: [e-mail]
Peter Safirstein
Elizabeth Metcalf
SAFIRSTEIN METCALF LLP
350 5th Ave, 59 th Floor
New York, NY 10118
Tel: [phone]
Email: psafirstein@safirsteinmetcalf. com
Email: [e-mail]

Co-Lead Counsel for the EPP Class

JURISDICTION
8.

T his Court has jurisdiction to enter this Order. The Court has jurisdiction over

the subject matter of this action and over all parties to the action, including all members of the
EPP Class.

5

Case 1:15-cv-06549-CM-RWL Document 514 Filed 08/28/20 Page
Case 1:15-cv-06549-CM -RWL Document 468-1 Filed 10/13/20 Page 6 of 7

APPROVAL OF SETTLEMENTS
9.

The terms of the Teva Settlement dated July 31, 2020, are hereby preliminarily

approved. This Order incorporates the Teva Settlement, and terms used in this Order that are
defined in the Settlement have the same meanings.

The Settlement was entered into after

arm's-length negotiations by experienced counsel on behalf of the EPP Class. The Court
preliminarily finds that the Teva Settlement is fair, reasonable and adequate, and in the best
interests of the EPP Class, pursuant to Rule 23 of the Federal Rules of Civil Procedure, and
warrants preliminary approval.
10.

Bank Leumi USA is hereby approved as Escrow Agent pursuant to the Teva

Settlement.
11.

All litigation activity against the Teva Defendants is hereby stayed, other than as

provided for in the Settlement Agreement, and all hearings, deadlines, and other proceedings
related to EPP's claims against those D efendants, other than those incident t o the settlement
process, are hereby taken off calendar. The stay shall remain in effect until further order of this
Court.
12.

In the event that the Teva Settlement fails to become effective in accordance

with its terms, or if an Order granting final approval to the Settlement and dismissing E PP's
claims against those D efendants with prejudice is not entered or is reversed, vacated, or
materially modified on appeal, this Order shall be null and void.
13.

In the event that either the Teva Settlement is terminated, not approved by the

Court, or the respective Settlement does not become final p ursuant to the terms of the
respective Settlement, litigation against t hose Defendants shall resume in a reasonable manner
as approved by the Court.

6

Case 1:15-cv-06549-CM-RWL Document 514 Filed 08/28/20 Page 7 of 7
Case 1:15-cv-06549-CM-RWL Document 468-1 Filed 10/13/20 Page 7 of 7

14.

Nothing herein shall be deemed an admission by the Teva D efendants of any

wrongdoing or any unlawful conduct, and nothing herein shall be deemed to constitute a
waiver by the Teva Defendants of any right to contest, should the litigation resume against the
Teva Defendants.
15.

T he Court retains exclusive jurisdiction to consider all further matters arising

out of or connected with the Settlement Agreement.

DEFERRAL OF NOTICE PLAN
16.

Notice to members of the Class shall be deferred as provided m the Teva

Settlement.
17.

A.B. Data, Ltd. is appointed as Notice/ Claims Administrator.

, 2020

Colleen McMahon
Chief Judge
U.S. District Court for the Southern District of
New York

7