Corporate & Securities Law

District Court Grants Class Certification in In Re Wellbutrin SR Direct Purchaser Litigation

By Matthew S. Wild

On May 2, 2008, the Eastern District of Pennsylvania granted class certification in In re Wellbutrin SR Direct Purchaser Antitrust Litig., No. 04-5525, 2008 WL 1946858 (E.D. Penn. May 2, 2008).  Plaintiffs claim that GlaxoSmithKline unlawfully extended its monopoly over Wellbutrin SR through fraud on the patent office and sham litigation against potential generic entrants.  Defendant argued that a conflict exists among class members because national wholesalers benefit from the lack of generic competition — generic manufacturers often bypass wholesalers.  The court rejected this argument because as generic Wellbutrin SR has been available since 2004, no theoretical conflict could still exist.  Plaintiffs met the other requirements for class certification.  Notably, plaintiffs offered a “colorable method” to prove common impact.  Plaintiffs’ expert plans to examine the impact of generic entry on brand name pharmaceuticals through an analysis of public data collected on the dispensation and purchases of prescription drugs.  In this case, class certification was straightforward.  It can become more difficult when, for example, prices are negotiated on an individual basis.  See, e.g., Blades v. Monsanto Co., 400 F.3d 562, 569 (8th Cir. 2005) (denying class certification because, inter alia, “the market for seeds is highly individualized, requiring particularized evidence to determine the competitive price that would have prevailed”).

Full post as published by Antitrust Commentary on May 20, 2008 (boomark / email).