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In re Nexium Antitrust Litigation

The plaintiffs in this antitrust class action case allege that defendant AstraZeneca, the maker of a drug called Nexium, entered into “pay-for-delay” contracts with its competitors (also defendants), in violation of various states’ antitrust laws. Under these contracts, AstraZeneca allegedly paid its competitors substantial amounts of money for the competitors’ agreement to delay marketing of generic versions of the drug. The district court certified a damages class against defendants under Federal Rule of Civil Procedure 23(b)(3) that includes individual consumers, third-party payers, union plan sponsors, and insurance companies that purchased or provided reimbursements for Nexium.

On appeal from the class certification order, defendants contended that the class includes some uninjured members who lack standing, leaving the district court without jurisdiction over the action and rendering improper the district court’s finding that common questions of law or fact will predominate over individualized inquiries, as required by Rule 23(b)(3).

Public Citizen filed an amicus brief in support of the plaintiffs-appellees. We argued that, even assuming the presence of some uninjured members in a proposed class, a district court may still properly certify the class pursuant to Rule 23(b)(3) and exercise jurisdiction over it.

In a decision issued on January 21, 2015, the court held that class certification is permissible even if the class includes a de minimis number of uninjured parties. It further held that the district court did not abuse its discretion by certifying the class and determining that, at the certification stage, it had not been shown that future proceedings would not be manageable consistent with defendants’ Seventh Amendment and due process rights.