INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 30 BENEFITS FUND v. LANNETT COMPANY, INC. et al

Filing 47

TRANSFER ORDER re: pldg. ( 1 in MDL No. 2724) Transferring 1 action(s) to Judge Cynthia Rufe in the E.D. Pennsylvania.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 8/5/2016. Associated Cases: MDL No. 2724, PAE/2:16-cv-00990, PAE/2:16-cv-01371, PAE/2:16-cv-01388, PAE/2:16-cv-01534, PAE/2:16-cv-01954, PAE/2:16-cv-02031, PAE/2:16-cv-02077, PAE/2:16-cv-02169, PAE/2:16-cv-02191, RI/1:16-cv-00214 (SM)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: GENERIC DRUG PRICING
ANTITRUST LITIGATION

MDL No. 2724

TRANSFER ORDER

Before the Panel:* Plaintiffs in nine actions pending in the Eastern District of Pennsylvania
move under 28 U.S.C. § 1407 to centralize pretrial proceedings in this litigation in the Eastern
District of Pennsylvania. This litigation consists of the nine actions pending in the Eastern District
of Pennsylvania and one action pending in the District of Rhode Island, as listed on Schedule A. The
Panel also has been notified of seven related actions pending in the Eastern District of Pennsylvania.1

All parties support centralization, but there is some disagreement as to the transferee district.
*

Judge 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

These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.
In addition, the Panel took notice of an eighth action pending in the Eastern District of
Pennsylvania, Plumbers’ Local Union No. 690 Health Plan v. Actavis Inc., et al., C.A. No. 2:1600665, which had been related to one of the actions on the motion. Plumbers’ Local, though,
involves allegations that more than sixty generic pharmaceutical manufacturers conspired to inflate
the applicable wholesale price for digoxin, doxycycline, and numerous other generic pharmaceutical
products in order to obtain higher reimbursement rates from insurers and government agencies. We
directed the parties to address whether Plumbers’ Local should be included in any centralized
proceedings. All parties that addressed Plumbers’ Local, including the plaintiff and seventeen
defendants in that action, opposed its inclusion in this MDL. Subsequently, the plaintiff in the action
to which Plumber’ Local had been related filed a “Notice of Inadvertent Listing of Related Case”
with the district court. We therefore need not take any action with respect to Plumbers’ Local. To
the extent that Plumbers’ Local shares common allegations and claims relating to digoxin and
doxycycline, informal coordination between the assigned judges and cooperation by the parties
should be sufficient to eliminate any possibility of duplicative discovery.

-2Plaintiffs in three potential tag-along actions support centralization in the Eastern District of
Pennsylvania.2 Common defendants Allergan plc, Impax Laboratories, Inc., The Lannett Company,
Inc., Mylan Inc., Mylan Pharmaceuticals, Inc., Par Pharmaceuticals, Inc., and West-Ward
Pharmaceutical Corp. also support centralization in the Eastern District of Pennsylvania. The
plaintiff in the action pending in the District of Rhode Island suggests instead that the Panel
centralize this litigation in the District of Rhode Island or, alternatively, in the District of Connecticut
or the Southern District of New York.
A dispute also exists with regard to the name of this MDL (and, thus, as to the scope of the
litigation). Defendants ask the Panel to rename this MDL, “In re Digoxin and Doxycycline
Litigation.” Moving plaintiffs (and one of the potential tag-along plaintiffs) oppose this request,
arguing that they anticipate that this litigation will expand to include other generic pharmaceutical
products.
On the basis of the papers filed and hearing session held, we find that these actions involve
common questions of fact, and that centralization in the Eastern District of Pennsylvania 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 allegations that defendants, all of which
are manufacturers of generic pharmaceuticals, conspired to fix the prices of two such products:
digoxin, which is used to treat irregular heartbeats and mild to moderate heart failure, and
doxycycline, an antibiotic used to treat both humans and animals for a variety of illnesses. Plaintiffs
allege that, between 2012 and 2014, the average market price for digoxin and doxycycline increased
by 884% and 8,281%, respectively. Plaintiffs uniformly allege that defendants effectuated this
conspiracy through direct company-to-company contacts and through joint activities undertaken
through trade associations. Plaintiffs in all the actions assert similar claims for price fixing in
violation of the Sherman Act and various state antitrust laws, as well as unjust enrichment, on behalf
of overlapping putative nationwide classes of indirect purchasers of these drugs.3 Centralization 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.
With respect to the parties’ dispute over the name of this litigation, defendants are correct
that the actions assert only claims and anticompetitive conduct as to digoxin and doxycycline. Any
potential expansion of this litigation to include other pharmaceutical products is hypothetical at this

2

Plaintiffs in another two potential tag-along actions did not respond to the motion, but filed
notices of presentation or waiver of oral argument in which they indicate support for centralization
in the Eastern District of Pennsylvania.
3

Plaintiffs in two of the potential tag-along actions bring Sherman Act claims on behalf of
putative nationwide classes of direct purchasers of digoxin and/or doxycycline. We have observed
previously that, where direct and indirect purchaser actions present common factual questions of fact,
centralization of both types of actions in one litigation may be appropriate. See In re Skelaxin
(Metaxalone) Antitrust Litig., 856 F. Supp. 2d 1350, 1341-52 (J.P.M.L. 2012).

-3point. Therefore, we will rename this litigation, “In re: Generic Digoxin and Doxycycline Antitrust
Litigation.” If plaintiffs file an amended complaint in the transferee court that expands the litigation
beyond the named products, the transferee judge may recommend to the Panel that the litigation be
renamed.4
The Eastern District of Pennsylvania is the appropriate transferee district for this litigation.
Nine of the ten actions on the motion (as well as all the potential tag-along actions) are pending in
this district. Likewise, a majority of the defendants are either headquartered or have significant
business operations in or near the Eastern District of Pennsylvania. Also, the parties assert that a
federal criminal investigation into defendants’ generic drug pricing practices is underway in the
Eastern District of Pennsylvania. Thus, a significant proportion of potential witnesses and
documentary evidence will be located within or near the district. All responding parties, save one
plaintiff, support centralization in the Eastern District of Pennsylvania, which offers a convenient
and accessible forum for this litigation. Centralization in this district also allows us to assign this
litigation to the Honorable Cynthia M. Rufe, an experienced jurist who will steer this litigation on
a prudent course.
IT IS THEREFORE ORDERED that the action listed on Schedule A and pending outside
the Eastern District of Pennsylvania is transferred to the Eastern District of Pennsylvania and, with
the consent of that court, assigned to the Honorable Cynthia M. Rufe for coordinated or consolidated
pretrial proceedings.
IT IS FURTHER ORDERED that MDL No. 2724 is renamed, In re: Generic Digoxin and
Doxycycline Antitrust Litigation.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
Catherine D. Perry

4

Charles R. Breyer
R. David Proctor

Similarly, should an action involving broader claims be filed outside the transferee district,
the Panel will consider whether transfer as a tag-along action is appropriate at that time.

IN RE: GENERIC DRUG PRICING
ANTITRUST LITIGATION

MDL No. 2724

SCHEDULE A
Eastern District of Pennsylvania
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 30 BENEFITS
FUND v. LANNETT COMPANY, INC., ET AL., C.A. No. 2:16-00990
NECA-IBEW WELFARE TRUST FUND v. ALLERGAN PLC, ET AL.,
C.A. No. 2:16-01371
TULSA FIREFIGHTERS HEALTH AND WELFARE TRUST v. ALLERGAN PLC,
ET AL., C.A. No. 2:16-01388
PIPE TRADES SERVICES MN v. LANNETT COMPANY, INC., ET AL.,
C.A. No. 2:16-01534
CARPINELLI v. LANNETT COMPANY, INC., ET AL., C.A. No. 2:16-01954
FRATERNAL ORDER OF POLICE, MIAMI LODGE 20, INSURANCE TRUST
FUND v. LANNETT COMPANY, INC., ET AL., C.A. No. 2:16-02031
DIAMOND v. LANNETT COMPANY, INC., ET AL., C.A. No. 2:16-02077
UFCW LOCAL 1500 WELFARE FUND v. ALLERGAN PLC, ET AL.,
C.A. No. 2:16-02169
MINNESOTA LABORERS HEALTH AND WELFARE FUND v. LANNETT
COMPANY, INC., ET AL., C.A. No. 2:16-02191
District of Rhode Island
CITY OF PROVIDENCE v. ALLERGAN PLC, ET AL., C.A. No. 1:16-00214