On Friday, August 9, 2024, U.S. Magistrate Judge Stewart D. Aaron issued a report and recommendation to certify two classes of plaintiffs—direct purchasers and end-payors—in the high-profile antitrust case against Actos drugmaker Takeda Pharmaceuticals.
Judge Aaron’s report and recommendation supported the certification of both classes, stating that the plaintiffs raised common questions of antitrust injury capable of classwide resolution. The judge found that the legal and factual issues shared by the class members predominated over individual concerns, making class certification appropriate.
For the end-payor plaintiffs, which include employee healthcare benefit plans, the judge highlighted Takeda’s alleged misrepresentations to the U.S. Food and Drug Administration (FDA) relating to certain patents allegedly covering Actos. According to the end-payor plaintiffs, Takeda’s misrepresentations delayed the introduction of lower cost generic versions of Actos, causing the plaintiffs and class members to pay inflated prices. The judge noted that the end-payor plaintiffs had presented compelling evidence that nearly all class members were injured by the delay in availability of generic Actos in the form of higher prices.
Judge Aaron also approved the end-payors’ damages model, which calculates damages based on the difference between the actual prices paid by class members and the prices they would have paid if generic Actos had been available sooner. This model, the judge found, could be applied consistently across the class. Judge Aaron’s report also made recommendations for leadership appointments, including recommending WBE for Co-Lead Class Counsel for the end-payors.
“The EPPs’ counsel, … have been litigating this action as Interim Co-Lead Counsel for years and their significant work to date, demonstrated knowledge of the law and the resources they already have expended all counsel in favor of appointment. In addition, each firm has extensive experience in other antitrust class actions. Accordingly, it is respectfully recommended that the Court appoint Hilliard & Shadowen LLP, Miller Shah LLP, Wexler Boley & Elgersma LLP and Motley Rice LLP as Co-Lead Class Counsel in the EP Action, pursuant to Rule 23(g).”
The end-payor class includes consumers and entities, such as healthcare benefit plans, that bear the full cost of prescription drug purchases. In addition to the end-payor class, Judge Aaron recommended certifying a class of purchasers that bought brand and generic Actos directly from manufacturers.
The parties have 14 days to file any objections to Judge Aaron’s report before it is reviewed by U.S. District Judge Ronnie Abrams. WBE will continue to vigorously represent the interests of the class members as the case progresses. For further information on this case, click here.