Humana, Inc. v. Mallinckrodt ARD LLC et al
ORDER DENYING TRANSFER re: pldg. (15 in CAC/2:19-cv-06926, 18 in CAN/3:21-cv-00165, 17 in DE/1:21-cv-00647, 12 in GAN/1:20-cv-00552, 17 in ILN/3:17-cv-50107, 22 in ILN/3:20-cv-50056, 48 in MDL No. 2999, 13 in NJ/1:20-cv-00188, 16 in PAE/2:12-cv-00175, 17 in PAE/2:19-cv-03047, 25 in TNW/2:21-cv-02024), ( 2 in MDL No. 2999), ( 1 in MDL No. 2999) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Karen K. Caldwell, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 6/7/2021. Associated Cases: MDL No. 2999, CAC/2:19-cv-06926, CAN/3:21-cv-00165, DE/1:21-cv-00647, GAN/1:20-cv-00552, ILN/3:17-cv-50107, ILN/3:20-cv-50056, NJ/1:20-cv-00188, PAE/2:12-cv-00175, PAE/2:19-cv-03047, TNW/2:21-cv-02024 (LH)
UNITED STATES JUDICIAL PANEL
IN RE: ACTHAR GEL ANTITRUST
MDL No. 2999
ORDER DENYING TRANSFER
Before the Panel: Plaintiffs in five actions listed on Schedule A move under 28 U.S.C.
§ 1407 to centralize this litigation in the Northern District of Illinois or, alternatively, the District
of New Jersey. This litigation consists of ten actions in eight districts, as listed on Schedule A. 1
The Panel was notified just before its hearing session that an additional action now is pending in
the Northern District of Illinois.
Plaintiff in the Northern District of California action supports the motion. The Express
Scripts defendants 2 suggest Section 1407 centralization in the District of Delaware. The Central
District of California plaintiff opposes centralization. Common defendants Mallinckrodt ARD
LLC (f/k/a Mallinckrodt ARD Inc.) and Mallinckrodt plc (collectively, Mallinckrodt) oppose
Section 1407 centralization in favor of allowing transferor courts to rule on pending motions to
transfer most of the pending actions to the District of Delaware under 28 U.S.C. §§ 1412 or 1404.
Mallinckrodt alternatively suggests Section 1407 centralization in the District of Delaware. The
United States—intervenor in the Eastern District Pennsylvania Strunck qui tam action—opposes
including Strunck in centralized proceedings. In reply, moving plaintiffs agree that Strunck should
remain in the Eastern District of Pennsylvania.
On the basis of the papers filed and the hearing session held, 3 we are not persuaded that
centralization is necessary for the convenience of the parties and witnesses or to further the just
The District of Delaware action originally was filed in the Eastern District of Pennsylvania, but
was transferred to Delaware under 28 U.S.C. § 1412.
Express Scripts, Inc.; Evernorth Health Inc. f/k/a Express Scripts Holding Co.; CuraScript, Inc.
d/b/a CuraScript SP Specialty Pharmacy; Priority Healthcare Corp.; Priority Healthcare
Distribution, Inc. d/b/a CuraScript SD Specialty Distribution; Accredo Health Group, Inc.; and
United BioSource LLC f/k/a United BioSource Corp.
In light of the concerns about the spread of the COVID-19 virus (coronavirus), the Panel heard
oral argument by videoconference at its hearing session of May 27, 2021. See Suppl. Notice of
Hearing Session, MDL No. 2999 (J.P.M.L. May 10, 2021), ECF No. 62.
-2and efficient conduct of this litigation at this time. These actions share factual questions arising
from allegations that Mallinckrodt unlawfully raised Acthar’s price and marketed and sold the
drug at inflated prices. The actions variously allege a complex and multi-faceted scheme by
defendants, including (a) contracting with the Express Scripts defendants to be the exclusive
distributor of Acthar, (b) buying and shelving a competing drug, (c) bribing doctors to prescribe
Acthar and aggressively promoting it for off label uses, and (d) improperly funneling copays
through a charitable organization. Some complaints allege just one or two components of this
scheme, while others include all of them. And some actions name the Express Scripts defendants,
while others do not. But almost all parties agree that there is factual and legal overlap among all
actions and that coordination or consolidation of some kind is appropriate.
Despite this overlap, the uncertainty about the timing and outcome of related bankruptcy
proceedings makes Section 1407 centralization premature at this time. Common defendants are
the debtors in Chapter 11 bankruptcy proceedings in the District of Delaware, ongoing since
October 2020, and the claims against all defendants are stayed in their entirety. Furthermore, there
are motions for transfer under 28 U.S.C. §§ 1412 or 1404 pending in eight of the actions listed on
Schedule A. Therefore, it is unclear where these claims will be pending or whether Section 1407
centralization will be necessary once the stay is lifted. See In re Gerber Probiotic Prods. Mktg. &
Sales Practices Litig., 899 F. Supp. 2d 1378 (J.P.M.L. 2012) (finding that allowing rulings on
Section 1404 motions “may allow the Panel to better assess where a multidistrict litigation should
Movants’ counsel represent that they have been retained by additional claimants to file suit
against defendants based on misconduct that has continued after Mallinckrodt filed for bankruptcy,
and that these claims would be unrelated to the bankruptcy. Indeed, the Panel has been notified of
one such action, which defendants argued at oral argument violates the bankruptcy stay.
Regardless of whether this action is subject to a stay, we are presented with just one action filed
on the eve of the Panel’s hearing session. And the Panel has been “disinclined to take into account
the mere possibility of future filings in [its] centralization calculus.” In re Lipitor (Atorvastatin
Calcium) Mktg., Sales Practices & Prods. Liab. Litig., 959 F. Supp. 2d 1375, 1376 (J.P.M.L.
Parties seeking centralization have the burden of demonstrating that centralization will
serve the convenience of the parties and witnesses and promote the just and efficient conduct of
the litigation. Since at this point in the litigation we do not have sufficient information to make
those determinations, centralization is premature. Should centralization appear to be necessary
once the bankruptcy stay is lifted, “the parties may file another Section 1407 motion, and the Panel
will revisit the question of centralization at that time.” In re Gerber, 899 F. Supp. 2d at 1381.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is
-3PANEL ON MULTIDISTRICT LITIGATION
Karen K. Caldwell
Catherine D. Perry
Matthew F. Kennelly
Roger T. Benitez
Nathaniel M. Gorton
David C. Norton
Dale A. Kimball
IN RE: ACTHAR GEL ANTITRUST
MDL No. 2999
Central District of California
HUMANA, INC. v. MALLINCKRODT ARD LLC, ET AL., C.A. No. 2:19−06926
Northern District of California
HEALTH CARE SERVICE CORP. v. MALLINCKRODT ARD LLC, ET AL.,
C.A. No. 3:21−00165
District of Delaware
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 542 v.
MALLINCKRODT ARD, INC. ET AL., C.A. No. 1:21−00647
Northern District of Georgia
CITY OF MARIETTA v. MALLINCKRODT ARD LLC, C.A. No. 1:20−00552
Northern District of Illinois
CITY OF ROCKFORD v. MALLINCKRODT ARD, INC., ET AL.,
C.A. No. 3:17−50107
MSP RECOVERY CLAIMS, SERIES LLC, ET AL. v. MALLINCKRODT ARD INC.,
ET AL., C.A. No. 3:20−50056
District of New Jersey
UNITED ASSOCIATION OF PLUMBERS & PIPEFITTERS LOCAL 322 OF
SOUTHERN NEW JERSEY v. MALLINCKRODT ARD, LLC, ET AL.,
C.A. No. 1:20−00188
Eastern District of Pennsylvania
STRUNCK, ET AL. v. QUESTCOR PHARMACEUTICALS, INC.,
C.A. No. 2:12−00175
STEAMFITTERS LOCAL UNION NO. 420 v. MALLINCKRODT ARD, LLC, ET AL.,
C.A. No. 2:19−03047
- A2 -
Western District of Tennessee
ACUMENT GLOBAL TECHNOLOGIES v. MALLINKRODT ARD, INC., ET AL.,
C.A. No. 2:21−02024
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