11th Amendment Precludes Enforcement Of Antitrust Settlement Against State

Nathan A. Adams IV is a Partner in our Tallahasse office.

In In re: Flonase Antitrust Litigation, 879 F. 3d 61 (3d Cir. 2017), the court determined that the 11th Amendment barred the district court from exercising ancillary jurisdiction over a prescription brand name allergy spray manufacturer's motion to enforce an antitrust settlement agreement. As a precursor to this holding, the court ruled that a motion for approval of a class action settlement qualifies as a suit against a state for 11th Amendment purposes when the agreement enjoins the state from suing in state court. The manufacturer argued that Louisiana did not opt-out of the settlement class of the underlying litigation alleging that it had filed sham citizen petitions with the U.S. Food and Drug Administration (FDA) to delay the introduction of a generic version of Flonase and caused the private indirect purchase to pay more for the drug. Alternatively, the manufacturer argued that Louisiana waived its