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In re Insulin Pricing Litigation

United States District Court, D. New Jersey

September 18, 2017

IN RE INSULIN PRICING LITIGATION
v.
NOVO NORDISK INC., et al., Defendants. FRANK BARNETT, ALTHEA BENTELE, DIANNA GILMORE, MARK GOLDSMITH, RITCH HOARD, and TREMAYNE SIMONS, Plaintiffs, JULIA BOSS, RUTH A. HART, RUTH JOHNSON, LEANN RICE, and TYPE 1 DIABETES DEFENSE FOUNDATION, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CVS HEALTH CORPORATION, et al., Defendants. SCOTT CHRISTENSEN, GAY DEPUTEE, MARY ANN DEVINS, MILDRED FORD, EMMA JENSEN, EDWARD JOHNSON, ANGELA KRITSELIS, SUSAN LANDIS, RUSSELL SCOTT PALMER, WILLIE PHILLIPS, JON UGLAND, ANDREW VAN HOUZEN, Plaintiffs,
v.
NOVO NORDISK INC., et al., Defendants.

          OPINION

          HON. BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE

         Before this Court are letter applications of (1) Steve W. Berman of Hagens Berman Sobol Shapiro LLP (“Hagens Berman”) and James E. Cecchi of Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C. Zelman, LLC (“Carella Byrne”; collectively with Hagens Berman, “HB/CB”) (ECF No. 49-1)[1]; (2) Lynn Lincoln Sarko, Derek W. Loeser, and Gretchen S. Obrist of Keller Rohrback L.L.P. (“Rohrback”) (ECF No. 50); and (3) Ellen Relkin of Weitz and Luxenberg and Todd A. Seaver of Berman DeValerio (collectively “WL/BD”) ((ECF No. 51). The Court has reviewed the letter applications, as well as the submissions of (1) Linda P. Nussbaum of the Nussbaum Law Group, P.C. (ECF No. 52), (2) Natalie Finkelman Bennett of Shepherd, Finkelman, Miller & Shah, LLP (ECF No. 53), and (3) Roberta D. Liebenberg of Fine, Kaplan and Black, R.P.C. (ECF No. 54) in support of the HB/CB application.

         I. Legal Standard

         Federal Rule of Civil Procedure 23(g)(3) provides the “court may designate interim class counsel to act on behalf of the putative class before determining whether to certify the action as a class action.” Further:

Although neither the federal rules nor the Advisory Committee Notes expressly so state, it appears to be generally accepted that the considerations set out in Rule 23(g)(1)(C), which govern the appointment of class counsel once a class is certified, apply equally to the designation of interim class counsel before certification.

Yaeger v. Subaru of America, Inc., No 15-864, 2014 U.S. Dist. LEXIS 182090, at * 1, 2014 WL 7883689 (D.N.J. Oct. 8, 2014) (quoting In re Air Cargo Shipping Servs. Antitrust Litig., 240 F.R.D. 56, 57 (E.D.N.Y.2006)); Waudby v. Verizon Wireless Services, Inc., 248 F.R.D. 173, 175-76 (D.N.J. 2008) (finding that courts choosing interim class counsel can apply the same factors that apply in choosing class counsel at the time of certification of the class, i.e., the standards set forth in Rule 23(g)(1)).

         The factors courts consider for the appointment of interim lead counsel are: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel's knowledge of the applicable law; and (iv) the resources counsel will commit to representing the class. Yaeger, 2014 U.S. Dist. LEXIS 182090, 2014 WL 7883689, at *2 (citing Fed. R. Civ. 23(g)(1)(A); Durso v. Samsung Elecs. Am., Inc., 2013 WL 4084640, at *3 (D.N.J. Aug. 7, 2013)). The Court must decide which candidate is best qualified, and no one factor is dispositive. Fed.R.Civ.P. 23(g)(2)(B). The Court also has the discretion to appoint more than one firm to act as co-lead counsel. See, e.g., In re Air Cargo Shipping, 240 F.R.D. At 58-59 (appointing four law firms as co-lead counsel); Nowak v. Ford Motor Co., 240 F.R.D. 355 (E.D. Mich. 2006) (appointing two law firms as interim co-lead counsel).

         The Manual for Complex Litigation provides additional guidance regarding the propriety of interim class counsel appointment prior to class certification:

If the lawyer who filed the suit is to be the only lawyer seeking appointment as class counsel, appointing interim class counsel may be unnecessary. If, however, there are a number of overlapping, duplicative, or competing suits pending in other courts, and some or all of those suits may be consolidated, a number of lawyers may compete for class counsel appointment. In such cases, designation of interim counsel clarifies responsibility for protecting the interest of the class during precertification activities, such as making and responding to motions, conducting any necessary discovery, moving for class certification, and negotiating settlement.

         Manual for Complex Litigation (4th) § 21.11 at *1 (Federal Judicial Center 2004).

         II. Decision

         A. The Conflict

         The WL/BD applicants argue HB/CB have a conflict of interest that should preclude the firms from serving as interim class counsel. (ECF No. 63 at 1.) WL/BD applicants note Hagens Berman represents a drug wholesaler, FWK Holdings, Inc. (“FWK”) in FWK Holdings, LLC v. Sanofi-Aventis U.S. LLC, Case No. 16-cv-12656 (D. Mass), in which a putative class of wholesale purchasers alleges Sanofi, the defendant manufacturer, overcharged them for the medication “Lantus.” (Id. at 2.) In that action, Hagens Berman alleges Sanofi artificially inflated the price of insulin by filing a sham patent lawsuit against rival manufacturer Eli Lilly and Company, which delayed the release of a competing product. (Id.) In this action, Hagens Berman alleges on behalf of a distinct class of insulin consumers that the price of Lantus was inflated by a different scheme involving “rebate” payments to pharmacy benefit managers. (Id.)

         The WL/BD applicants argue Hagens Berman's concurrent representation of FWK and the plaintiffs in this suit presents a conflict in violation of New Jersey Rule ...


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