District Court Rejects Direct Purchaser Class for Failure to Satisfy Numerosity Requirement

On August 28, 2017, in King Drug Company of Florence, Inc., et al. v. Cephalon, Inc., et al., the Eastern District of Pennsylvania denied class certification for direct purchasers asserting Hatch-Waxman reverse-payment antitrust claims because the 24-25 putative class members did not satisfy the numerosity requirement. Separately, for the same reasons, the court rejected a settlement agreement between the direct purchasers and another defendant.¹ The decisions followed a Third Circuit opinion vacating the district court's initial grant of class certification in In Re Modafinil Antitrust Litigation, 837 F.3d 238 (3d Cir. 2016). On remand, Judge Goldberg identified judicial economy and that the prospective class members had the ability and motivation to litigate through joinder as principal factors for finding that joinder would be practicable and that certification of a direct purchaser class, for either litigation or settlement purposes, was therefore inappropriate.