Key Issue
Whether a putative class of indirect purchasers can be certified
in a pharmaceutical antitrust litigation under the predominance
requirement of Rule 23(b)(3) and the First Circuit's 2018
holding in In re Asacol Antitrust Litigation, 907 F.3d 42
(1st Cir. 2018), which held that at putative class containing many
members who suered no injury could not be certified.
Background
The defendants in this case are two pharmaceutical companies,
Shire and Actavis, that manufacture a medication to treat ADHD.
Shire manufactures and holds patents for a brand name version of
the medication, called "Intuniv." Plaintiffs alleged that
in 2009, Actavis filed for approval to manufacture a generic
version of Intuniv, and in the process Actavis constructively
infringed on Shire's patents. Shire then sued, and the two
companies reached a settlement agreement in which Actavis agreed to
delay its launch of the generic drug.43
