King Drug Company of Florence, Inc. v. Cephalon, Inc., et al.

On August 28, 2017, the District Court in this case denied Plaintiffs’ motion to certify a class of direct purchasers of Cephalon’s branded drug Provigil. Direct purchaser Plaintiffs alleged that Cephalon delayed market entry of generic versions of Provigil through illegal “reverse payment” settlement agreements with generic manufacturers. Consistent with the expert analysis developed by Compass Lexecon which concluded that (a) only about 20 entities met the class definition, (b) the three national wholesalers accounted for over 95% of the value of Plaintiffs’ damages claims, and (c) other class members also had substantial claims under Plaintiffs’ damages methodology, the District Court determined that the numerosity requirement was not satisfied and certification of the class was not appropriate. The decision followed an earlier opinion and remand by the Third Circuit that identified these and other relevant factors that need to be considered when evaluating numerosity.

Compass Lexecon Senior Consultant Professor Janusz A. Ordover was the expert for the Defendants. The Compass Lexecon team worked closely with counsel representing Defendants including J. Douglas Baldridge, Danielle R. Foley and Lisa Jose Fales of Venable LLP, representing Ranbaxy, James C. Burling, Peter A. Spaeth and Mark A. Ford of Wilmer Cutler Pickering Hale and Dorr LLP, representing Cephalon, Karen N. Walker and Greg Skidmore of Kirkland & Ellis LLP, representing Barr/Teva, C. Fairley Spillman of Akin Gump Strauss Hauer & Feld LLP, representing Mylan, and Joe Wolfson of Stevens & Lee, P.C., representing Teva. The Compass Lexecon team supporting Professor Ordover was led by Bret Dickey in our Oakland office, and included Todd Bettisworth, Kun Huang, Tully Lillis and Cecilia Cheng.