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In re Loestrin 24 FE Antitrust Litigation

United States District Court, D. Rhode Island

August 14, 2019

IN RE LOESTRIN 24 FE ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: Direct Purchaser Actions

          ORDER APPROVING THE FORM AND MANNER OF NOTICE AND APPOINTING NOTICE ADMINISTRATOR

          William E. Smith Chief Judge

         On July 2, 2019, this Court allowed Direct Purchaser Class Plaintiff's Motion for Class Certification under Fed.R.Civ.P. 23(b)(3) (Dkt. No. 1050) (the “Class Certification Order”).

         Pursuant to the Class Certification Order, this Court certified under Fed.R.Civ.P. 23(b)(3) the below-listed class (the “Class”):

All persons or entities in the United States and its territories who purchased brand or generic Loestrin 24 directly from Warner or Amneal at any time during the period from September 1, 2009, through and until June 3, 2015, and all persons or entities in the United States and its territories who purchased brand Minastrin 24 directly from Warner at any time during the period from September 1, 2009, through and until March 14, 2017 (the “Class Period”). Excluded from the Class are defendants, and their officers, directors, management, employees, subsidiaries, or affiliates, and all federal governmental entities. Also excluded from the class are educational institutions such as universities and colleges.

         In the Class Certification Order, this Court found as follows:

         1. that the Direct Purchaser Class Plaintiff satisfied the requirements of Fed.R.Civ.P. 23(a)(1), (a)(2), and (a)(3) by showing that the class is so numerous that joinder of all members is impracticable, there are questions of law or fact common to the class, and the claims or defenses of the representative parties are typical of the claims or defenses of the class;

         2. the Direct Purchaser Class Plaintiff satisfied the adequacy of representation requirements of Fed.R.Civ.P. 23(a)(4) by showing that the class representative-Ahold USA, Inc.-does not have any conflicts with other class members and by showing that class counsel is qualified and will vigorously prosecute this case;

         3. the Direct Purchaser Class Plaintiff satisfied the predominance requirement of Rule 23(b)(3); and

         4. Direct Purchaser Plaintiffs have now requested that the Court approve their proposed form and manner of notice to the certified class informing them of the pendency of this class action and appoint RG/2 Claims Administration as the notice administrator tasked with effectuating notice to each class member.

         For the reasons set forth in the Class Certification Order, the Court hereby ORDERS that:

         1. RG/2 Claims Administration is hereby appointed notice administrator for this action.

         2. The form of notice to be sent to members of the Class will be substantially in the form of the revised proposed notice (the “Notice”) attached as Exhibit A to the Direct Purchaser Class Plaintiffs' Notice of Filing Revised Proposed Notice to Class Members, ECF No. 1178-1, and attached to this Order as Exhibit A.

         3. Within 14 days of the entry of this Order, the notice administrator shall cause the Notice to be sent by U.S. First Class mail to the members of the class listed in Exhibit 1 to the Declaration of Kristen A. Johnson filed with the Motion for Entry of an Order Approving the Form and Manner of Notice and Appointing Notice Administrator, ECF No. 1059-1.

         4. Members of the Class may request exclusion from the Class postmarked no later than 35 days from the mailing of the Notice to the Class in accordance with the procedures set forth in the Notice. The notice administrator, RG/2 Claims Administration, and Lead Class Counsel shall monitor and record any and all opt-out requests that are received.

         5. Within 60 days of entry of this Order, the notice administrator shall file a declaration with the Court confirming that the Notice has been sent by U.S. First Class Mail to all Class members as required herein and identifying the Class members, if any, who requested to be excluded from the Class and who meet the requirements for a valid request for exclusion as set forth in the Notice.

         IT IS SO ORDERED.

         EXHIBIT A

         NOTICE OF PENDENCY OF CLASS ACTION

         If you purchased brand Loestrin 24 Fe directly from Warner Chilcott, or its successor entities Actavis or Allergan, or generic Loestrin 24 Fe (Lomedia 24 Fe) directly from Amneal Pharmaceuticals LLC, between September 1, 2009 and June 5, 2015; or if you purchased brand Minastrin 24 directly from Warner Chilcott, or its successor entities Actavis or Allergan, between September 1, 2009 and March 14, 2017, a class action lawsuit could affect your rights.

         This Notice is being provided by Order of the U.S. District Court. It is not a solicitation from a lawyer. You are not being sued.

         Ahold USA, Inc. (“Plaintiff”) has sued Warner Chilcott Company, LLC, Warner Chilcott (US) LLC, Warner Chilcott Sales (US), LLC (collectively “Warner”), and Watson Laboratories, Inc., Watson Pharmaceuticals, Inc., and Actavis, Inc. (collectively, “Watson”) (together, “Defendants”).[1] Plaintiff alleges that Defendants violated federal antitrust laws by unlawfully impairing the introduction of generic versions of the prescription drug Loestrin 24 Fe (“Loestrin 24”) into the United States market.

         Plaintiff alleges that Warner first obtained an illegal monopoly on Loestrin 24 through a patent procured by fraud on the U.S. Patent and Trademark Office. Plaintiffs allege that Warner then wrongfully listed the fraudulent patent in the FDA's “Orange Book.” After generic manufacturer Watson and other potential generic competitors notified Warner that they planned to launch generic versions of Loestrin 24, Warner sued them, asserting the invalid, improperly obtained, and unenforceable patent. Plaintiffs allege that Warner and Watson later settled the baseless patent infringement lawsuit by entering into an illegal reverse payment agreement whereby Warner paid Watson to delay the launch of its generic Loestrin 24 product for more than four years. Plaintiffs allege that, just prior to the launch of Watson's delayed generic version of Loestrin 24 (named Lomedia 24 Fe and sold by Amneal Pharmaceuticals LLC pursuant to an agreement with Watson), Warner implemented an illegal “product hop” by withdrawing Loestrin 24 from the United States market and launching in its place Minastrin 24 Fe (“Minastrin 24”), a chewable version of Loestrin 24 that was otherwise indistinguishable and offered no additional benefit over Loestrin 24. The lawsuit claims the fraudulent procurement of the Loestrin 24 patent, the listing of that patent in the FDA's Orange Book, the assertion of that patent against generic competitors in litigation, the reverse payment agreement between Warner and Watson, and the illegal product hop by Warner injured Plaintiffs and members of a class of direct purchasers of brand and generic Loestrin 24 and branded Minastrin 24 by causing them to pay higher prices for branded and generic Loestrin 24 and branded Minastrin 24. Warner and Watson deny these claims and deny that they did anything wrong.

         On July 2, 2019, Chief Judge William E. Smith of the United States District Court for the District of Rhode Island allowed this antitrust lawsuit to proceed as a class action, and certified the following class:

All persons or entities in the United States and its territories who purchased brand or generic Loestrin 24 directly from Warner or Amneal at any time during the period from September 1, 2009, through and until June 3, 2015, and all persons or entities in the United States and its territories who purchased brand Minastrin 24 directly from Warner at any time during the period from September 1, 2009, through and until March 14, 2017 (the “Class Period”). Excluded from the Class are defendants, and their officers, directors, management, employees, subsidiaries, or affiliates, and, all federal governmental entities. Also excluded from the class are educational institutions such as universities and colleges.
YOUR LEGAL RIGHTS AND OPTIONS

DO NOTHING

By doing nothing, and if you are a member of the class, then you will remain in the class and may be entitled to share in any recovery that may come from a trial or settlement with Warner and/or Watson. All of the Court's orders will apply to you and legally bind you.

EXCLUDE YOURSELF FROM THE CLASS

This is the only option that allows you to file or be part of another lawsuit against Defendants relating to the claims in this case. If you exclude yourself from the class, you will not be bound by any of the Court's orders in this case as to the claims against Warner or Watson, nor will you be entitled to participate in and benefit from a recovery in this case, if any.

GET MORE INFORMATION

If you would like more information about the lawsuit, you can review this notice and send questions to the lawyers identified in Question 11 below.

         THESE RIGHTS AND OPTIONS - AND THE DEADLINES TO EXERCISE THEM -ARE EXPLAINED IN THIS NOTICE.

         BASIC INFORMATION ...................................................................................... PAGE 4

         1. Why did I receive this notice?

         2. What is the lawsuit about?

         3. Why is this lawsuit a class action?

         THE CLAIMS IN THE LAWSUIT ...................................................................... PAGE 5

         4. Has the Court decided who is right?

         5. What are Plaintiffs asking for?

         6. Is there any money available now?

         WHO IS IN THE CLASS ..................................................................................... PAGE 6

         7. Am I part of this class?

         YOUR RIGHTS AND OPTIONS ...


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