Brannon et al v. Express Scripts Holding Company et al

Filing 25

ORDER DENYING TRANSFER re: pldg. (12 in KS/2:17-cv-02497, 21 in MDL No. 2802, 16 in MN/0:17-cv-01884), ( 1 in MDL No. 2802) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 12/5/2017. Associated Cases: MDL No. 2802, KS/2:17-cv-02497, MN/0:17-cv-01884 (DP)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: EPIPEN (EPINEPHRINE INJECTION, USP)
EMPLOYEE RETIREMENT INCOME SECURITY
ACT (ERISA) LITIGATION

MDL No. 2802

ORDER DENYING TRANSFER

Before the Panel:* Plaintiffs in the Klein action listed on Schedule A move under 28 U.S.C.
§ 1407 to centralize pretrial proceedings in this litigation in the District of Minnesota. This litigation
consists of two actions—the Brannon action pending in the District of Kansas and the Klein action
pending in the District of Minnesota—as listed on Schedule A.1 All responding parties oppose
centralization. These include: (1) all defendants in the Brannon and Klein actions;2 (2) the Brannon
plaintiffs; and (3) MDL No. 2785 defendants Mylan Inc., Mylan N.V., Mylan Pharmaceuticals Inc.,
and Mylan Specialty L.P. (collectively, Mylan).3 The Brannon plaintiffs alternatively suggest the
District of Kansas as the transferee forum for this litigation.

*

Judges Lewis A. Kaplan 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 Panel has been notified of a potentially related action pending in the District of
Minnesota. Plaintiff in this action is represented by the same counsel as plaintiffs in the Klein action.
2

Although these defendants filed a consolidated opposition to the motion for centralization,
some of the defendants indicated different alternative positions with respect to the transferee forum
in their Notices of Presentation of Oral Argument. The CVS Defendants (CVS Health Corporation,
Caremark, LLC, Caremark Rx, LLC, and CaremarkPCS Health, LLC) alternatively support the
District of Kansas as the transferee district should the Panel centralize this litigation. Defendant
Prime Therapeutics, LLC, in contrast, alternatively suggests centralization in the District of
Minnesota. The other defendants (Express Scripts Holding Company, Express Scripts, Inc., Medco
Health Solutions, Inc., UnitedHealth Group, Inc., and OptumRx, Inc.) do not suggest a transferee
forum in the alternative.
3

MDL No. 2785 involves allegations of anticompetitive conduct or unfair methods of
competition by Mylan 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. See In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust
Litig., MDL No. 2785, __ F. Supp. 3d __, 2017 WL 3297989 (J.P.M.L. Aug. 3, 2017).

-2On the basis of the papers filed and the hearing session held, we conclude that centralization
is not necessary for the convenience of the parties and witnesses or to further the just and efficient
conduct of the litigation. These actions share common factual questions relating to allegations that
defendants, all of which are pharmacy benefit managers (PBMs), breached their fiduciary duty and
conducted prohibited transactions under the Employee Retirement Income Security Act (ERISA)
when they negotiated enhanced rebates from Mylan in exchange for favorable placement of its
EpiPen products on their formularies. The parties are in general agreement that Brannon and Klein
should proceed in a coordinated or consolidated fashion. The opposing defendants, however, argue
that alternatives such as transfer pursuant to 28 U.S.C. § 1404(a) or informal coordination of
discovery are preferable to centralization under Section 1407. We agree.4
Our past decisions make clear that “centralization under Section 1407 should be the last
solution after considered review of all other options.” In re Best Buy Co., Inc., Cal. Song-Beverly
Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). Plaintiffs in Klein, in addition
to filing the present motion for centralization, have filed a motion in Klein seeking to enjoin
prosecution of the Brannon action pursuant to the first-to-file doctrine. Defendants in Brannon have
moved to transfer that action to the District of Minnesota pursuant to the first-to-file doctrine or
Section 1404(a). Either motion would eliminate the multidistrict character of this litigation. The
transfer motion (if deemed appropriate by the transferor court) would allow for a consolidated trial
of both actions. See In re Gerber Probiotic Prods. Mktg. & Sales Practices Litig., 899 F. Supp. 2d
1378, 1380 (J.P.M.L. 2012) (noting that “transfer under Section 1404(a)—where appropriate—can
result in a more streamlined action, without the procedural necessity of remand to the transferor court
that is required under Section 1407” and “allows for the possibility of consolidation of actions for
trial, which potentially avoids the increased costs associated with multiple trials after the Panel
remands actions to the various transferor courts once pretrial proceedings are concluded”). As there
exists a “reasonable prospect” that these pending motions will moot the multidistrict character of this
litigation, centralization is not warranted. In re Truvia Natural Sweetener Mktg. & Sales Practices
Litig., 996 F. Supp. 2d 1377, 1378 (J.P.M.L. 2014) (denying centralization where pending transfer
motions could eliminate the multidistrict character of the litigation).
Additionally, this litigation involves only two actions. If the multidistrict character of this
litigation cannot be eliminated through the motions now pending in Brannon and Klein, voluntary
cooperation and coordination among the parties and the involved courts should be feasible with
respect to common discovery and pretrial proceedings. See, e.g., In re Eli Lilly & Co. (Cephalexin
Monohydrate) Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex

4

The Brannon plaintiffs argue that centralization should be denied because Klein is more
properly transferred as a potential tag-along action to MDL No. 2785, which is proceeding in the
District of Kansas. We do not agree and, for the reasons stated in an order issued concurrently with
this one, we vacate the order that conditionally transferred Klein to MDL No. 2785. See Order
Vacating Conditional Transfer Order, In re EpiPen (Epinephrine Injection, USP) Mktg., Sales
Practices & Antitrust Litig., MDL No. 2785 (J.P.M.L. Dec. 5, 2017).

-3Litigation, Fourth, § 20.14 (2004). At oral argument, both plaintiffs and defendants agreed that they
will cooperate with one another to coordinate any potentially duplicative discovery.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Marjorie O. Rendell
R. David Proctor

Charles R. Breyer
Catherine D. Perry

IN RE: EPIPEN (EPINEPHRINE INJECTION, USP)
EMPLOYEE RETIREMENT INCOME SECURITY
ACT (ERISA) LITIGATION

MDL No. 2802

SCHEDULE A

District of Kansas
BRANNON, ET AL. v. EXPRESS SCRIPTS HOLDING COMPANY, ET AL.,
C.A. No. 2:17-02497
District of Minnesota
KLEIN, ET AL. v. PRIME THERAPEUTICS, LLC, ET AL., C.A. No. 0:17-01884