The opinion of the court was delivered by: FAITH HOCHBERG, District Judge
This matter is before the Court upon a settlement agreement
between the manufacturers of the anti-depressant drug Remeron,
Organon USA Inc. and Akzo Nobel N.V. (Defendants or Organon), and
the end-payor purchasers of Remeron along with all Attorney
Generals of the United States of America and territories. The
settling parties seek (1) final approval of their class action
settlement agreement and plan of distribution, (2) final
certification of an end-payor settlement class pursuant to
Fed.R.Civ.P. 23, and (3) award of attorneys' fees to Plaintiffs'
Counsel, reimbursement of litigation expenses, and incentive awards to named Plaintiffs. The Court preliminarily
approved the settlement on January 25, 2005 after a preliminary
fairness hearing on December 1, 2004. The final Fairness Hearing
was conducted on June 28, 2005.
In 2002, end-payor purchasers of Remeron filed class action
complaints against Defendants. Complaints were filed by United
Food and Commercial Workers Local 56 Health & Welfare Fund, Board
of Trustees of United Food and Commercial Workers Local 56 Health
& Welfare Fund, Vista Healthplan, Inc., Gayle Taylor, Dianne
Mason and Robert Kapella (End-Payor Plaintiffs or Plaintiffs).
These complaints were followed by a Consolidated Class Action
Complaint on September 11, 2002, and thereafter by an Amended
Consolidated Class Action Complaint (Complaint) in In re Remeron
End-Payor Antitrust Litigation, Master Docket No. 02-CV-2007
(D.N.J.), filed January 5, 2004.
The Complaint alleges violations of the Sherman Act,
15 U.S.C. § 2, and violations of state antitrust and/or unfair competition
statutes. It alleges that Defendants (a) obtained United States
Patent No. 5,977,099 ('099 patent) through fraud on the United
States Patent and Trademark Office (PTO), (b) improperly listed
the '099 patent in the United States Food and Drug
Administration's (FDA's) "Approved Therapeutic Equivalence
Evaluations" (Orange Book) to preserve their monopoly, (c)
improperly delayed the listing of that patent in the Orange Book
to prolong their monopoly, and (d) thereafter improperly
commenced lawsuits asserting sham claims of patent infringement
under the Hatch-Waxman Act, 21 U.S.C. § 355, and the United
States patent laws against generic drug companies (Generic Manufacturers), which sought permission to
market generic versions of Organon's antidepressant drug,
The Complaint alleges that Defendants took these several
actions in order to forestall the market entry of FDA-approved
generic versions of Remeron (i.e., generic mirtazapine). As a
result, end-payor purchasers composed of Third-Party Payors
(such as health benefit funds, HMOs, health insurers and
hospitals), governmental entities, and individual consumers
were allegedly required to purchase brand-name Remeron at
monopoly prices instead of being able to purchase generic
mirtazapine at a fraction of the price. Absent Defendants'
illegal activities, it is alleged that patients would have been
able to purchase lower-priced generic mirtazapine earlier,
resulting in a savings of millions of dollars.
2. Extensive Discovery and Litigation Prior to Settlement
This litigation was complex and hotly contested from the
outset, beginning with Defendants' initial unsuccessful efforts
to obtain a stay from the Magistrate Judge. On December 18, 2002,
this Court granted summary judgment in favor of certain Generic
Manufacturers with respect to Organon's patent claims against
them. Following that decision, class action complaints and
individual complaints were filed by various direct purchasers of
Remeron (Direct Purchasers), who are not a part of this
litigation or settlement.
The Court then entered a case management Order on June 18,
2003, coordinating discovery in the End-Payor class actions, the
Direct Purchaser cases, and the antitrust counterclaims filed by
the Generic Manufacturers. Additional coordination and case
management Orders were issued on July 16, 2003; August 11, 2003;
and December 11, 2003, and several Orders regarding discovery
were issued September 26, 2003; December 23, 2003; January 15, 2004; January
16, 2004; February 3, 2004; February 10, 2004; and February 13,
On December 3, 2003, the Court granted Defendants' motion to
dismiss several antitrust counterclaims by Generic Manufacturers
including the (a) allegation that the '099 patent had been
improperly listed by Defendants in the FDA's Orange Book for
anticompetitive reasons, and (b) allegation that the Defendants'
patent litigation against the Generic Manufacturers was baseless
and brought for anticompetitive purposes to prolong Defendants'
Overall, discovery was extensive. Approximately 800,000 pages
of documents and data were produced by Defendants and third
parties. Documents produced included hundreds of thousands of
pages relating to Defendants' various anti-generic strategies for
Remeron; Defendants' internal patent planning and life cycle
management strategy; Defendants' regulatory and Orange Book
listing strategies; Defendants' clinical development files, which
contained additional documentation regarding other regulatory
exclusivity strategies for Remeron; Defendants' patent files,
including file wrapper and patent prosecution history
documentation; and numerous scientific and medical articles and
other publications which impacted upon the issues of
non-infringement and invalidity of the '099 patent. End-Payor
Plaintiffs' briefs revealed extensive research into the various
legal and regulatory issues in this case, including an analysis
of various FDA regulations and the case law interpreting those
End-Payor Plaintiffs' counsel pressed Defendants on the
adequacy of their document production at a hearing on December
19, 2003, through a Notice of Deposition of Corporate Defendants
Pursuant to Fed.R.Civ.P. 30(b)(6), and through a letter brief
on February 2, 2004. They took depositions of numerous current or
former employees of the Defendants. These included many high-level executives and employees, who were deposed on
complicated and highly technical issues relating to Defendants'
various legal, regulatory, marketing and other anti-generic
strategies for Remeron. Plaintiffs also consulted heavily with
counsel for the Direct Purchasers, counsel for the Generic
Manufacturers, and the State Attorneys General. In all, over 50
depositions were taken.
The End-Payor Plaintiffs also provided extensive discovery,
including Rule 26 Initial Disclosures on October 15, 2002,
answers to interrogatories on September 8, 2003, supplemental
voluminous document production, and deposition testimony by the
two institutional End-Payor Plaintiff Class Representatives
(Vista Healthplan, Inc. and United Food & Commercial Workers
Local 56 Health & Welfare Fund). End-Payor Plaintiffs also
engaged and met extensively with economic and other experts to
develop support for theories of liability and to measure the
monetary harm suffered by End-Payors of Remeron.
Defendants moved to dismiss or stay the End-Payor Plaintiffs'
Consolidated Amended Complaint on November 14, 2002. End-Payor
Plaintiffs filed a comprehensive Memorandum in Opposition to
Defendants' Motion to Dismiss or Stay on January 17, 2003, and a
Notice of Supplemental Authority in opposition on February 6,
2003, as well as a letter brief regarding subsequent authority on
April 25, 2003, and a letter brief on further supplemental
authority on June 3, 2003. Defendants filed their Reply
Memorandum in Support of Motion to Dismiss or Stay on February
21, 2003, and filed a response to End-Payor Plaintiffs' April 25
letter brief on May 8, 2003, and a response to End-Payor
Plaintiffs' June 3 letter brief on June 5, 2003.
Defendants opposed End-Payor Plaintiffs' motion for leave to
file the End-Payor Plaintiffs' Consolidated Amended Complaint.
End-Payor Plaintiffs filed an extensive Memorandum of Law in
Support of Plaintiffs' Motion for Leave to Amend on November 18,
2003. After briefing and oral argument, the Court granted End-Payor Plaintiffs' motion for
leave to amend on December 31, 2003. Following oral argument,
Defendants' initial motion to dismiss was denied as moot in light
of End-Payor Plaintiffs' Amended Consolidated Complaint, by Order
dated January 15, 2004.
Defendants thereafter moved to dismiss End-Payor Plaintiffs'
Amended Consolidated Class Action Complaint on January 20, 2004.
End-Payor Plaintiffs moved to certify a nationwide class of End
Payors, including consumers as well as public (non-federal) and
private institutional End Payors, on October 27, 2003. End-Payor
Plaintiffs filed a comprehensive Memorandum of Law in Support of
Plaintiffs' Motion for Class Certification, together with a
detailed and extensive Declaration from Harvard University health
economist Professor Richard G. Frank in support of class
certification. The Court had not issued a ruling on these two
motions at the time of the proposed settlement.
As the End-Payor Plaintiffs were developing their case, the
working group of State Attorneys General were conducting their
own economic and factual investigation relating to the claims,
underlying events, and conduct alleged by the End-Payor
Plaintiffs and others. Beginning in March 2003, the Office of the
Attorney General of Texas issued Civil Investigative Demands
(CIDs) for documents and answers to written interrogatories to
the Defendants and to third parties, including the Generic
Manufacturers. A multi-state working group of State Attorneys
General that was formed during the summer of 2003 conducted a
targeted review of the 200 CD-ROMs of document images produced in
response to the CIDs. The working group also reviewed transcripts
of depositions and hearings from the patent litigation and the
End-Payor and Direct Purchaser litigation. The State Attorneys
General also researched and analyzed may legal and regulatory
issues involving patents, the FDA and the Hatch-Waxman process.
In addition, the State Attorneys General gathered data relating
to purchases of Remeron from their state agencies, including
their state Medicaid programs, as well as sales and pricing data from the Defendants and the Generic
Manufacturers, and retained economists to analyze the data and
create damages estimates. The State Attorneys General undertook
extensive legal research and analysis and consulted with economic
and intellectual property law experts regarding the theories of
liability at issue in this case.
B. Mediation and Settlement
In December 2003, the parties began to explore the possibility
of settlement with the working group of State Attorneys General.
The settlement negotiations included a multi-day global
settlement mediation before Judge Politan in January 2004. This
was followed by a series of settlement discussions between
Defendants' and End-Payor Plaintiffs' counsel in coordination
with the working group of State Attorneys General. These
discussions laid the groundwork, but settlement was not achieved
until the end of a two-day settlement conference before this
Court. The broad outlines of this agreement were discussed with
the Court in chambers on February 18, 2004.
For the next half year, the End-Payor Plaintiffs and the States
together engaged in further negotiations with Defendants to craft
and finalize the detailed written settlement agreement. Other
negotiations included crafting and finalizing the escrow
agreement, the proposed preliminary approval order, the proposed
final judgment, and the class notice of the proposed settlement.
The working group of State Attorneys General, in conjunction with
the Federal Trade Commission, engaged in many further
negotiations with Defendants to draft and finalize the Stipulated
Injunction. State Attorneys General who were not involved in the
working group were later invited to join the settlement.
C. Preliminary Approval of the Settlement and Execution of the
On October 20, 2004, End-Payor Plaintiffs and the Plaintiff
States filed their Memorandum in Support of End-Payor Plaintiffs'
and States' Motion for Preliminary Approval of Proposed
Settlement. Contemporaneous with the filing of that Memorandum, a Complaint
including all of the 50 States, the District of Columbia, and all
U.S. territories was filed with the Court, along with the fully
executed settlement agreement.*fn1
On November 17, 2004, the Court issued an Order requesting
End-Payor Plaintiffs and Plaintiff States submit a brief
addressing in further detail their proposed Notice Plan. On
November 24, 2004, End-Payor Plaintiffs and Plaintiff States
submitted a Supplemental Memorandum in Further Support of
Plaintiffs' Motion for Preliminary Approval that addressed the
issues raised. On December 1, 2004, the Court held a hearing on
the proposed preliminary approval of the settlement. At that
hearing, the Court requested that the parties develop a proposed
Plan of Distribution and include details regarding that plan in
the notices, which the parties did. On January 14, 2005, the
End-Payor Plaintiffs and Plaintiff States submitted a Second
Supplemental Memorandum in Further Support of Plaintiffs' Motion
for Preliminary Approval, setting forth the proposed Plan of
Distribution and revised notices. On January 24, 2005, the Court
followed up with an e-mail to the parties seeking additional
information regarding certain language in the proposed order and
the notice. End-Payor Plaintiffs and Plaintiff States responded
to the Court's questions by return e-mail and revised the
long-form and summary notices in response to the Court's
On January 25, 2005, the Court entered an Order Conditionally
Certifying Settlement Class, Preliminarily Approving Proposed
Settlement, and Preliminarily Approving Representation of
Attorneys General. In compliance with the settlement agreement
and the Court's January 25, 2005 Order, Defendants paid $35
million into escrow on February 1, 2005. Then the Notice Plan was carried out. The claims administrator,
Complete Claim Solutions (CCS), mailed 13,431 notice packages to
Third-Party Payor (TPP) class members. As of May 25, 2005, with
the cooperation of the pharmacies, CCS had caused to be mailed
854,046 notice packets to potential consumer class members. The
media consultant retained by CCS published the summary notice in
national publications, such as Reader's Digest, Parade, USA
Today and USA Weekend. To provide adequate coverage for class
members residing in one of the United States Territories, the
media consultant published summary notice in El Nuevo Dia, the
Pacific Daily News and the Virgin Islands Daily News. The media
consultant also published the summary notice in an industry
periodical, National Underwriter, to reach TPP class members.
Additionally, CCS contacted 22,643 physicians, and numerous
mental health, senior and women's organizations soliciting their
assistance in notifying their members of the settlement. CCS
distributed Public Service Announcements (PSAs) to 1,000 radio
stations. As of May 25, 2005, 60 radio stations reported airing
the PSAs a total of 11,179 times. CCS designed and developed a
website for potential class members to obtain information and for
consumer class members to file a claim online; and CCS set up and
operates a toll-free 800 telephone number to answer class
members' questions. As of May 25, 2005, over 40,000 visits have
been made to the website and nearly 30,000 calls have been made
to the toll-free telephone number.
A copy of the settlement agreement and its exhibits were filed
with the Court on October 20, 2004 with the motion by End-Payor
Plaintiffs and States for preliminary settlement approval.
1. Monetary Payments And Distributions
The settlement provides for settlement payments by Defendants
in a total amount of up to Thirty-Six Million Dollars
($36,000,000.00) (Settlement Consideration) consisting of: (1)
Thirty-Three Million Dollars ($33,000,000.00) that Defendants paid into an
escrow account on February 1, 2005, plus any interest, dividends
and other distributions and payments earned on that sum while in
escrow (Settlement Fund); (2) Two Million Dollars ($2,000,000.00)
that Defendants paid on February 1, 2005 into a separate escrow
account to pay for costs and expenses of settlement class notice
and future costs of settlement administration, plus any interest,
dividends and other distributions and payments earned on that sum
while in escrow (Notice Fund); and (3) up to One Million Dollars
($1,000,000.00) that the Defendants will pay to the States
following the effective date of the settlement agreement for
their reasonable attorneys' fees and expenses incurred in their
investigations of Defendants relating to this matter and in
connection with the approval and administration of this
On February 1, 2005, Defendants deposited into escrow the sum
of Thirty-Three Million Dollars ($33,000,000.00). This Settlement
Fund may be used for purposes of distribution to the members of
the settlement class and the Plaintiff States, payment of further
notice or administrative costs in excess of the amount of the
Notice Fund up to $500,000.00, and payment of End-Payor
Plaintiffs' attorneys' fees and costs, and incentive awards for
the class representatives.
Under the Plan of Distribution, the net settlement amount (the
settlement fund less notice and claims administration costs,
attorneys' fees, expenses, and incentive awards) will be
allocated as follows: 32.8% to consumers, 16.5% to state
governmental purchasers, and 50.7% to TPPs. End-Payor Plaintiffs'
Co-Lead Counsel have applied to the Court for an attorneys' fees
award from the Settlement Fund equal to $7.8 million (23.6% of
the Settlement Fund) plus 23.6% of interest that has accrued on
the Settlement Fund, as well as reimbursement of almost
$500,000.00 in expenses (including expert fees and costs). Attorneys' fees and expenses
will be distributed by End-Payor Plaintiffs' Co-Lead Counsel
among the ten law firms that initiated and litigated these End
Payor cases. In addition, End-Payor Plaintiffs seek an award of
incentive awards to the Class Representatives in the amount of
Seventy-Five Thousand Dollars ($75,000.00).
Defendants deposited into escrow a separate amount of Two
Million Dollars ($2,000,000.00) used exclusively for the payment
of notice and administrative fees and costs reasonably incurred
for the purpose of providing notice of settlement to members of
the settlement class, processing claims and administering the
settlement, paying any taxes and tax expenses with respect to the
escrow accounts, and paying reasonable fees and costs to the
c. Payment to State Attorneys General
After the effective date of the settlement agreement,
Defendants will reimburse the Plaintiff States for their
reasonable attorneys' fees and expenses incurred in connection
with their investigations of Defendants relating to this matter,
as well as their future reasonable attorneys' fees and expenses
to be incurred in connection with settlement approval and
administration. The aggregate amount of all such fees and
expenses of all Plaintiff States that shall be reimbursable shall
not exceed One Million Dollars ($1,000,000.00).
Any amount in the Settlement Fund that remains after payment of
all claims, Court-approved fees, costs, expenses, and incentive
awards, and any supplemental distribution to settlement class
members and Court-approved supplemental fees and costs, will be
distributed to charitable organizations or state agencies that
provide health or legal services to settlement class members, as recommended by End-Payor Plaintiffs' Co-Lead Counsel and/or State
Liaison Counsel and approved by the Court.
Defendants have agreed to an injunction prohibiting certain
future conduct (Injunction), which will become effective when the
settlement agreement becomes effective. The Injunction, which was
negotiated by the Plaintiff States in conjunction with the
Federal Trade Commission states, inter alia, that Defendants
(a) "shall not seek, maintain, certify to, or take any other
action in furtherance of, the listing or continued listing of any
Patent in the Orange Book where the listing of such Patent in the
Orange Book violates Applicable Law" and (b) "shall not" provide
to the FDA "Listing Information that [is] false or misleading."
Members of the settlement class (who have not made valid and
timely elections to exclude themselves from the settlement class)
release and discharge forever the Defendants from all claims
which could have been asserted from the facts and circumstances
giving rise to this case, from the beginning of time through
January 25, 2005 (the date this Court preliminarily approved the
A. Class Certification for Purposes of Settlement
In its Order preliminarily approving the settlement agreement,
the Court conditionally certified the Settlement Class, defined
in the settlement agreement as:
All End Payors (including any assignees of such End
Payors) who purchased and/or paid all or part of the
purchase price of Mirtazapine Products in the United
States during the period beginning June 15, 2001
through January 25, 2005 (the date of the Preliminary
Approval Order). Excluded from the Settlement Class are (i)
Defendants and any of their subsidiaries and
affiliates, (ii) all federal governmental entities,
agencies and instrumentalities, and (iii) all
wholesalers and retailers and all persons or entities
that purchased Mirtazapine Products primarily for
purposes of resale.
The Court also preliminarily approved the following as Class
United Food and Commercial Workers Local 56 Health &
Welfare Fund, and Board of Trustees of United Food
and Commercial Workers Local 56 Health & Welfare
Fund, a health benefit fund operated for the benefit
of present and retired members of the union local and
Vista Healthplan, Inc., a health maintenance
organization that provides comprehensive healthcare
benefits to its members; and
Gayle Taylor, Dianne Mason, and Robert Kapella, all
of whom are consumers who purchased Remeron during
the Class Period.
Under Rule 23 of the Federal Rules of Civil Procedure, the
Court must engage in a two-step analysis in order to determine
whether it should certify a class action for settlement purposes.
First, the Court must determine whether the End-Payor Plaintiffs
and Plaintiff States have satisfied the prerequisites for
maintaining a class action as set forth in Fed.R.Civ.P. 23(a).
If the End-Payor Plaintiffs and Plaintiff States can satisfy
these prerequisites, the Court must then determine whether the
alternative requirements of Rule 23(b)(2) or 23(b)(3) are met.
See Fed.R.Civ.P. 23(a) advisory committee's note.
"Confronted with a request for settlement-only class
certification, a district court need not inquire whether the
case, if tried, would present intractable management problems,
see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that
there be no trial." Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 619 (1997).
1. The Requirements of Rule 23(a)
Rule 23(a) provides that class members may maintain a class
action as representatives of a class if they show the court that: (a) the class members are so numerous that joinder of
all members is impracticable;
(b) the action addresses questions of law or fact
common to the class;
(c) the claims or defenses of the class
representatives are typical of the claims or defenses
of the class; and
(d) the class representative parties will fairly and
adequately protect the interests of the class.
Courts will ordinarily discharge the prerequisite of numerosity
if the class is so large that "joinder of all members is
impracticable." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019
(9th Cir. 1998). "The plaintiff need not precisely enumerate the
potential size of the proposed class, nor is the plaintiff
required to demonstrate that joinder would be impossible."
Cannon v. Cherry Hill Toyota, Inc., 184 F.R.D. 540, 543 (D.N.J.
1999); accord Wachtel v. Guardian Life Ins. Co.,
223 F.R.D. 196, 211 (D.N.J. 2004). Moreover, "[i]t is proper for the court
to accept common sense assumptions in order to support a finding
of numerosity." Cumberland Farms, Inc. v. Browning-Ferris
Indus., 120 F.R.D. 642, 646 (E.D. Pa. 1988) (citation omitted);
accord In re Nasdaq Market-Makers Antitrust Litig.,
169 F.R.D. 493, 509 (S.D.N.Y. 1996).
Here, the plaintiff class consists of End Payors, including
consumers, who paid all or part of the price of Remeron in the
United States during the class period. "There can be no serious
question that joinder of all these parties, geographically
dispersed throughout the United States, would be impracticable."
In re Corrugated Container Antitrust Litig., 80 F.R.D. 244, 247
(S.D. Tex. 1978). Hundreds of thousands of class members have
received notice and tens of thousands have filed proofs of claim
across. The class thus easily fulfills the numerosity
requirement. "[N]umbers in excess of forty, particularly those exceeding one hundred or one thousand
have sustained the [numerosity] requirement." Weiss v. York
Hosp., 745 F.2d 786, 808 n. 35 (3d Cir. 1984).
The threshold commonality inquiry is whether there are any
questions of fact or law that are common to the class.
Fed.R.Civ.P. 23(a)(2). "[C]ommonality does not require an identity of
claims or facts among class members." Newton v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183 (3d Cir. 2001).
Rather, "[t]he commonality requirement will be satisfied if the
named plaintiffs share at least one question of fact or law with
the grievances of the prospective class." "Even where individual
facts and circumstances do become important to the resolution,
class treatment is not precluded." Baby Neal v. Casey,
43 F.3d 48, 57 (3d Cir. 1994) Id. at 57. "The threshold of commonality
is not high." In re School Asbestos Litig., 789 F.2d 996, 1010
(3d Cir. 1986).
In this case, many common questions exist. They include, inter
alia, (1) what is the relevant product market?; (2) did
Defendants have market power in that market?; and (3) did
Defendants unlawfully monopolize that market? Antitrust actions
often present common questions of law and fact, and are,
therefore, frequently certified as class actions. See, e.g.,
Transamerican Ref. Corp. v. Dravo Corp., 130 F.R.D. 70, 73 (S.D.
Tex. 1990) (antitrust price-fixing claims and common law fraud);
Cusick v. NV Nederlandsche Combinatie Voor Chemische Industrie,
317 F. Supp. 1022, 1024 (E.D. Pa. 1970) (consumer class action
charging monopolization). The commonality requirement is
The Third Circuit has "set a low threshold for satisfying" the
typicality requirement holding that "[i]f the claims of the named
plaintiffs and class members involve the same conduct by the
defendant, typicality is established." Newton v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 259 F.3d 154, 1838-4 (3d Cir. 2001);
accord Baby Neal v. Casey, 43 F.3d 48, 58 (3d Cir. 1994)
(stating "cases challenging the same unlawful conduct which
affects both the named plaintiffs and the putative class usually
satisfy the typicality requirement").
The typicality requirement "does not mandate that all putative
class members share identical claims." Newton, 259 F.3d at 84;
see also Hassine v. Jeffes, 846 F.2d 169, 176-77 (3d Cir.
1988). Plainly, "there is nothing in Rule 23(a)(3) which requires
named plaintiffs to be clones of each other or clones of other
class members." In re Lorazepam & Clorazepate Antitrust Litig.,
202 F.R.D. 12, 27 (D.D.C. 2001); accord In re Catfish Antitrust
Litig., 826 F.Supp. 1019, 1036 (N.D. Miss. 1993).
In this case, the Class Representatives' and the class members'
claims are identically predicated upon Defendants' alleged
actions of improper listing and late listing of the '099 Patent
in the Orange Book, fraud on the PTO, and filing of allegedly
baseless patent infringement lawsuits against Generic
Manufacturers. Thus, "[t]here are no differences as to the type
of relief sought or the theories of liability upon which
plaintiffs will proceed." In re Corrugated Container Antitrust
Litig., 80 F.R.D. 244 (S.D. Tex. 1978). The Class
Representatives' claims and those of the class members arise from
the same course of conduct. "[S]ince the various claims alleged
appear to stem from a single course of conduct . . . we cannot
conclude that the district court abused its discretion in holding
that the typicality requirement was met." Grasty v. Amalgamated
Clothing and Textile Workers Union, 828 F.2d 123, 130 (3d Cir.
1987). Accordingly, the Class Representatives' claims are typical
of those of the class members.
d. Adequacy of Representation The final requirement of Rule 23(a) is that "the representative
parties will fairly and adequately protect the interests of the
class." Fed.R.Civ.P. 23(a)(4). The Third Circuit has held that
"adequate representation depends on two factors: (i) the
plaintiff's attorney must be qualified, experienced, and
generally able to conduct the proposed litigation, and (ii) the
plaintiff must not have interests antagonistic to those of the
class." Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 923
(3d Cir. 1992); accord In re Warfarin Sodium Antitrust Litig.,
391 F.3d 516, 532 (3d Cir. 2004); Wetzel v. Liberty Mutual Ins.
Co., 508 F.2d 239, 247 (3d Cir. 1975).
As to the first factor, End-Payor Plaintiffs' counsel have
successfully prosecuted numerous antitrust class actions.
Plaintiffs' Co-Lead Counsel, Arthur M. Kaplan, is a graduate of
the Harvard Law School (J.D., cum laude, 1970) and has been
active in antitrust and other complex litigation. Mr. Kaplan was
Co-Lead Counsel for plaintiffs in the In re Nasdaq Market-Makers
Antitrust Litig., 187 F.R.D. 465 (S.D.N.Y. 1998), in which
plaintiffs achieved settlements totaling $1.027 billion.*fn2
End-Payor Plaintiffs' Co-Lead Counsel Joseph H. Meltzer likewise
is experienced. Mr. Meltzer is a graduate of the Temple
University School of Law (J.D., cum laude) and has focused his
practice exclusively on antitrust and complex class action
litigation. In addition to prominent roles in prosecuting several
major antitrust class actions to successful conclusions,
including In re Sorbates Direct Purchaser Antitrust Litig.,
C98-4886 (N.D. Cal. 2001) (settlements exceeding $92 million),
Mr. Meltzer was appointed Co-Lead Counsel in Ryan-House v.
GlaxoSmithKline plc, C.A. 2:02cv442 (E.D. Va.), a pharmaceutical antitrust class action brought on behalf
of end payors of the prescription medication Augmentin which
recently settled for $29 million. End-Payor Plaintiffs' Acting
Co-Lead Counsel Jeffrey S. Istvan is a 1992 graduate of the
University of Virginia School of Law, where he was a Hardy Cross
Dillard Scholar. Following a federal judicial clerkship, he has
been active in antitrust and consumer class actions. Mr. Istvan
was sole lead counsel in Parsky v. Wachovia Bank, N.A., 2001 WL
535786 (C.C.P. Phila. May 8, 2001), a consumer class action that