Stephen L. LaFrance Pharmacy, Inc. v King Pharmaceuticals, Inc., et. al.

Filing 44

(DISREGARD--DOCKETED IN ERROR) Modified on 3/31/2015 (DJH, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
IN RE: SKELAXIN (METAXALONE)
ANTITRUST LITIGATION

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THIS DOCUMENT RELATES TO
End Payor Actions

1:12-md-2343
Lead case No. 2:12-cv-4
Skelaxin Antitrust Litigation
Collier/Carter

MEMORANDUM AND ORDER
This order addresses several outstanding motions to seal documents filed in this case.
The undersigned will not reiterate the legal standard required to place documents under seal
because I have already done so numerous times in this action, most recently in my order dated
March 25, 2015 [Doc. 852]. Those standards are incorporated herein.

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Doc. 551 - End-Payor Plaintiffs’ (EPPs) Motion To File Under Seal Their Reply in Support of
End-Payor Plaintiffs’ Motion for Reconsideration.
The EPPs seek to file a reply brief under seal because it contains information designated
as confidential by King Pharmaceuticals, LLC (King) or by Mutual Pharmaceutical Company,
Inc. (Mutual). The purpose of filing such a motion is to give King and Mutual an opportunity to
file a response setting forth good cause to file the reply brief under seal if either so desires.
Neither King nor Mutual have filed such a brief and, therefore, the motion to seal is DENIED.
Doc. 552 shall be unsealed and remain in the public record.
Doc. 672 - End-Payor Plaintiffs’ Motion To File Under Seal.

The EPPs move to file certain documents under seal [Docs. 673 and 674] because they
contain information deemed confidential by King. King has not responded to show good cause
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This order does not address any motion filed in the Walgreen case, No. 1:12-cv-203, and the
Rite Aid case, No. 1:13-cv-5. Those two cases are currently stayed for all purposes.

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for filing said documents under seal. Therefore, the motion to seal [Doc. 672] is DENIED and
Docs. 673 and 674 shall be unsealed and remain in the public record.
Doc. 692 – EPPs’ Motion to File Under Seal.
The EPPs have moved to temporarily seal the following because they contain information
designated as confidential by King:
End-Payor Plaintiffs’ Memorandum in Support of Their Motion to Compel King to Produce
Documents Improperly Withheld From Discovery and for an in Camera Review or, in the
Alternative, to Compel King to Supplement its Privilege Logs
Declaration of Amber M. Nesbitt in Support of End-Payor Plaintiffs’ Motion to Compel King to
Produce Documents Improperly Withheld From Discovery and for an in Camera Review or, in the
Alternative, to Compel King to Supplement its Privilege Logs

King has not filed a response showing good cause to file these documents under seal. Therefore,
the motion to seal [Doc. 692] is DENIED. Docs. 693 and 694 shall be unsealed and shall remain
in the public record.
Doc. 698 – The EPPs’ MOTION for Leave to File Under Seal the EPPs’ Sur-Reply In
Opposition to King's Emergency Motion For Protective Order Re: Third Party Subpoenas.
The EPPs move for leave to file their sur-reply under seal because it contains information
designated as confidential by King. King has not filed a response showing good cause to file
these documents under seal. Therefore, the motion to seal [Doc. 698] is DENIED. Doc. 699
shall be unsealed and shall remain in the public record.
Doc. 758 – EPPs’ Motion to File Under Seal.
The EPPs move to seal the Declaration of Kenneth A. Wexler in Support of End-Payor
Plaintiffs’ Unopposed Motion for Class Certification for Purposes of Settlement, Appointment of
Class Lead Counsel, Preliminary Approval of Proposed Settlement, Approval of Proposed Form
of Notice, and the Establishment of a Final Settlement Schedule and Date for a Fairness Hearing.
[Docs. 759 and 760].

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According to the EPPs, maintaining the Confidential Agreement under seal is crucial to
implementing the Settlement between the End-Payor Plaintiffs and Mutual:
… Mutual reserved the right to withdraw from the Settlement if the opt-outs
exceed the percentage specified in the Confidential Supplemental Agreement.
Settlement Agreement ¶ 16.A, attached as Ex. 1 to the Declaration of Kenneth A.
Wexler in Support of the Unopposed Motion. Potential opt-outs may exploit this
type of provision by demanding undue compensation for not scuttling the
settlement. At worst, this could result in the failure of the Settlement to become
effective. At best, it could result in Settlement proceeds being unfairly channeled
away from the proposed Settlement Class members to parties and attorneys who
do not deserve them.
(EPPs’ Motion to Seal, Page ID # 24672).
As to the remaining information, the EPPs aver,
The proposed Sealed Exhibit B contains a sample of Skelaxin
and metaxalone purchase data from one of the named plaintiffs, United Food and
Commercial Workers Unions and Employers Midwest Health Benefits Fund
(“UFCW”). This data reflects proprietary information relating to the contract
between UFCW and its pharmacy benefit manager reflecting prices paid for the
drugs and is the type of information previously sealed by this Court. See, e.g.,
(Dkt. Nos. 288, 289 (motion for protective order re: plaintiffs’ purchase data), 414
(order granting motion)).
(Id. at Page ID ## 24672-73.) For good cause shown, this motion to seal [Doc. 758] is
GRANTED. Docs. 759 and 760 shall remain under seal.
SO ORDERED.
ENTER.

/s William B. Mitchell Carter___________
WILLIAM B. MITCHELL CARTER
UNITED STATES MAGISTRATE JUDGE

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