Aggarwal v. Mylan Pharmaceuticals Inc. et al

Filing 29

TRANSFER ORDER re: pldg. ( 2 in MDL No. 2785), ( 1 in MDL No. 2785) Transferring 4 action(s) to Judge Daniel D. Crabtree in the D. Kansas.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 8/3/2017. Associated Cases: MDL No. 2785, ILN/1:17-cv-02189, KS/2:16-cv-02711, NJ/2:17-cv-02401, NJ/3:17-cv-02763, WAW/3:17-cv-05244 (CMD)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: EPIPEN (EPINEPHRINE INJECTION, USP)
MARKETING, SALES PRACTICES AND
ANTITRUST LITIGATION

MDL No. 2785

TRANSFER ORDER

Before the Panel:* Plaintiffs in the Nordstrum action listed on Schedule A and pending in
the District of New Jersey move under 28 U.S.C. § 1407 to centralize pretrial proceedings in this
litigation in the District of New Jersey. This litigation consists of five actions pending in the
Northern District of Illinois, the District of Kansas, the District of New Jersey, and the Western
District of Washington, as listed on Schedule A. All of these actions involve allegations of
anticompetitive conduct or unfair methods of competition by one or more Mylan entities1 with
respect to the EpiPen, a spring-loaded injector marketed by Mylan that delivers a pre-measured and
pre-loaded amount of epinephrine for the emergency treatment of anaphylaxis. In addition to the
actions on the motion, the parties have notified the Panel of actions pending in the Southern District
of Alabama and in the District of New Jersey that involve related issues.2
Plaintiffs in two of the actions on the motion, as well as the plaintiff in one of the potential
tag-along actions, support centralization in the District of New Jersey. Plaintiffs in one of these
actions, Western District of Washington Rainey, alternatively suggest that the Panel need only
transfer the Northern District of Illinois Aggarwal action to the District of Kansas, and that the
remaining actions—which include allegations that defendants engaged in an anticompetitive rebate
scheme with respect to pharmacy benefit managers—can proceed separately in the District of New
Jersey (following a proposed Section 1404 transfer of Rainey to that district). Plaintiff in a third

*

Judges Marjorie O. Rendell and Ellen Segal Huvelle took no part in the decision of this
matter. Additionally, one or more Panel members who could be members of the putative classes in
this litigation have renounced their participation in these classes and have participated in this
decision.
1

The Mylan defendants include: Mylan N.V.; Mylan Pharmaceuticals Inc.; Mylan Specialty
L.P.; Mylan Inc.; and Heather Bresch. In addition to Mylan, two of the actions also name King
Pharmaceuticals, Inc., Meridian Medical Technologies, Inc., and/or Pfizer, Inc. (collectively, the
Pfizer defendants).
2

These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.

-2action on the motion, Aggarwal, also supports centralization, but suggests the Northern District of
Illinois as the transferee district.
Plaintiffs in the In re EpiPen Auto-Injector Litigation pending in the District of Kansas
oppose centralization. They argue primarily that alternatives to centralization, such as informal
coordination among the parties and Section 1404 transfer of the non-Kansas actions to the District
of Kansas, are preferable to Section 1407 centralization. If the Panel centralizes this litigation
notwithstanding their opposition, the Kansas plaintiffs alternatively suggest the District of Kansas
as the transferee district. Plaintiff in the District of New Jersey Sanofi-Aventis U.S. LLC (Sanofi)
action takes no position on centralization generally, but opposes inclusion of Sanofi in any MDL.
Sanofi argues that its direct competitor action is distinct from the other four actions on the motion,
which are putative purchaser class actions. Alternatively, Sanofi suggests the District of New Jersey
as the transferee district.
Both the Mylan and the Pfizer defendants initially opposed centralization for much the same
reasons proffered by the Kansas plaintiffs. Following denial of a Section 1404 transfer motion in
the Sanofi action, defendants changed their position and now support centralization of this litigation
in the District of Kansas. Mylan, though, continues to oppose centralization in the event that the
Panel does not include the Sanofi action in the MDL. Mylan alternatively supports centralization
in the Northern District of Illinois.
On the basis of the papers filed and hearing session held, we find that the actions listed on
Schedule A involve common questions of fact, and that centralization in the District of Kansas will
serve the convenience of the parties and witnesses and promote the just and efficient conduct of this
litigation. These actions share factual questions arising from Mylan’s alleged dominance in the
market for epinephrine auto-injectors and recent increases of the price for the EpiPen. Plaintiffs
allege anticompetitive conduct including, among other things: engaging in a “hard switch” and
selling EpiPens only in packs of two; entering into discount agreements with schools that were
conditioned on the schools not purchasing competing products; securing multiple overlapping
patents on minor changes to the EpiPen and engaging in “sham” patent litigation to forestall generic
competition; and paying excessive rebates to commercial insurance companies, pharmaceutical
benefits managers, and state-based Medicaid agencies conditioned on those companies and agencies
not reimbursing the use of competing products. Plaintiffs assert claims for violation of federal and
state antitrust laws, as well as state consumer protection laws. Four of the actions involve
overlapping putative classes of EpiPen purchasers. Centralization thus will eliminate duplicative
discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and
conserve the resources of the parties, their counsel, and the judiciary.
Sanofi, which opposes inclusion in this MDL, is correct that there are differences among the
actions. Sanofi, for instance, asserts claims for violation of the Sherman Act as a competitor of
Mylan in the epinephrine auto-injector market (Sanofi sold a product called the Auvi-Q), whereas
the other actions are brought on behalf of putative classes of purchasers of the EpiPen. Unique legal
theories and factual allegations in a particular action, though, are not significant where all the actions

-3arise from a common factual core. See In re U.S. Office of Personnel Mgmt. Data Sec. Breach Litig.,
138 F. Supp. 3d 1379, 1380 (J.P.M.L. 2015). Despite the unique claims presented by Sanofi, there
is significant factual overlap with the other actions. For example, other actions allege
anticompetitive conduct by defendants with respect to the Auvi-Q, and multiple complaints allege
that Mylan engaged in an anticompetitive rebate scheme. Given this factual overlap, the litigation
taken as a whole is unlikely to benefit from excluding Sanofi from the MDL. To the extent Sanofi
presents unique factual and legal issues, the transferee judge has the discretion to address those
issues through the use of appropriate pretrial devices, such as separate tracks for discovery and
motion practice. Additionally, the transferee judge may recommend Section 1407 remand of Sanofi
in advance of other actions if he deems it appropriate. See In re McCormick & Co., Inc., Pepper
Prods. Mktg. & Sales Practices Litig., 148 F. Supp. 3d 1364, 1366 (J.P.M.L. 2015).
Turning to the opponents of centralization, we are not convinced that alternatives to
centralization are workable in this instance. Opponents argue that the Kansas action is the result of
intense negotiation between plaintiffs in eight actions pending in five districts, seven of whom
agreed to voluntarily dismiss their complaints against Mylan in order to participate in a consolidated
action in the District of Kansas, and that similar coordination or cooperation is possible with respect
to the four non-Kansas actions on this motion. The Kansas plaintiffs’ willingness to work
cooperatively to eliminate duplicative actions is commendable. Even so, there remain five actions
pending in four districts spread across the country. Coordination of these actions across four
districts, especially given the likely complexity of the factual questions presented in these actions
and the apparent lack of agreement among counsel in these actions, appears problematic.
Opponents also contend that centralization is unnecessary because Mylan has filed motions
to transfer the four actions pending outside the District of Kansas to that district.3 On a number of
occasions this Panel has denied centralization where a “reasonable prospect” exists that Section 1404
or first-to-file motions will eliminate the multidistrict character of a litigation. In re Gerber
Probiotic Prods. Mktg. & Sales Practices Litig., 899 F. Supp. 2d 1378, 1379-80 (J.P.M.L. 2012).
The mere pendency of such motions, though, is not necessarily sufficient to defeat centralization:
“we look to other circumstances to determine whether there is a reasonable prospect that the Section
1404 motions will resolve the difficulties posed by duplicative multidistrict litigation—for example,
the amenability of counsel to Section 1404 transfer, orders addressing transfer in the underlying
actions, and the likelihood of potential tag-along actions.”
In re Natrol, Inc.,
Glucosamine/Chondroitin Mktg. & Sales Practices Litig., 26 F. Supp. 3d 1392, 1393 (J.P.M.L.
2014). Here, one of the transfer motions (in the Sanofi action) already has been denied. The transfer
motions in the other actions are (or are likely to be) opposed, and the outcome of these motions is
unknown.4 Despite the advantages of transfer under Section 1404 or the first-to-file doctrine as a

3

The Kansas plaintiffs also have sought to transfer or stay several of the non-Kansas actions
in a motion filed in the Kansas action. That motion remains pending.
4

The transfer motions in the Nordstrum action and the potential tag-along action in the
(continued...)

-4general matter, centralization appears the best option for coordinating this litigation in these
circumstances.
The District of Kansas is the appropriate transferee district for this litigation. This district
presents a geographically central forum for this nationwide litigation. Both defendants and some
plaintiffs support centralization in the District of Kansas, which is relatively convenient and
accessible to the parties. Also, the first-filed action is pending in this district. As discussed, that
action is a de facto consolidation of the claims of plaintiffs in eight actions. Thus, establishing this
MDL in the District of Kansas recognizes the prior cooperation among these plaintiffs in organizing
the litigation. Further, centralization in the District of Kansas enables us to assign this litigation to
the Honorable Daniel D. Crabtree, an able jurist who we are confident will steer this litigation on
an efficient and prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the District of Kansas are transferred to the District of Kansas and, with the consent of that court,
assigned to the Honorable Daniel D. Crabtree for coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Charles R. Breyer
R. David Proctor

4

Lewis A. Kaplan
Catherine D. Perry

(...continued)
District of New Jersey recently were denied without prejudice on the basis of the pending Section
1407 motion for centralization.

IN RE: EPIPEN (EPINEPHRINE INJECTION, USP)
MARKETING, SALES PRACTICES AND
ANTITRUST LITIGATION

MDL No. 2785

SCHEDULE A

Northern District of Illinois
AGGARWAL v. MYLAN PHARMACEUTICALS INC., ET AL., C.A. No. 1:17-02189
District of Kansas
IN RE: EPIPEN AUTO-INJECTOR LITIGATION, C.A. No. 2:16-02711
District of New Jersey
NORDSTRUM, ET AL. v. MYLAN INC., ET AL., C.A. No. 2:17-02401
SANOFI-AVENTIS U.S. LLC v. MYLAN INC., ET AL., C.A. No. 3:17-02763
Western District of Washington
RAINEY, ET AL. v. MYLAN SPECIALTY L.P., C.A. No. 3:17-05244