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In Re: Budeprion Xl Marketing & Sales Litigation

September 20, 2012

IN RE: BUDEPRION XL MARKETING & SALES LITIGATION


The opinion of the court was delivered by: Schiller, J.

THIS DOCUMENT APPLIES TO: ALL ACTIONS 09-md-2107

MEMORANDUM

This Court recently certified a settlement class and approved a settlement involving the generic version of the antidepressant Wellbutrin. The Court also approved Class counsel's request for attorneys' fees. Prior to the Court's approving the settlement, the Attorney General of Texas voiced some concerns to the Court about the settlement and now seeks to intervene for the purpose of appealing this Court's decision to approve the settlement. For the reasons that follow, the motion to intervene is denied.

I. BACKGROUND

This litigation developed from numerous complaints filed in both federal and state courts throughout this country. It began in this District, on June 22, 2009, with the filing of Rosenfeld v. Teva Pharmaceuticals, Inc., Civ. A. No. 09-2811. Similar cases were filed in, or removed to, federal courts in the Central District of California, the Middle District of Florida, the Eastern District of Louisiana, the Eastern District of North Carolina, the Northern District of Texas, the Southern District of Ohio, the Southern District of Alabama, the Northern District of Oklahoma, and the Western District of Washington. In all of these cases, Plaintiffs sought to represent themselves and a class of individuals who had taken Defendants Teva Pharmaceuticals USA and Impax Laboratories' generic version of Wellbutrin and whose conditions had worsened after switching to the drug. Both Plaintiffs and Defendants agreed that the cases should go to the United States Judicial Panel on Multidistrict Litigation ("MDL Panel") and be consolidated for pretrial purposes, although the parties disputed to which district the cases should be transferred. On December 2, 2009, the MDL Panel issued its decision and, pursuant to 28 U.S.C. § 1407, transferred the cases to this District.

Although this litigation began as a number of distinct cases brought throughout the country seeking to apply various state laws, Plaintiffs employed a different strategy once the MDL Panel transferred the litigation here. On March 1, 2010, Class representatives Micki Sackler and Andrew Richards filed an Administrative Class Action Complaint. As stated in the Administrative Class Action Complaint, "This lawsuit seeks to apply California's statutory business standards to a California drug manufacturer (Impax) and its distribution partner (Teva) for uniform national conduct emanating from California. Defendants engage in nationwide market activity, providing the same label with every Impax Product that omits material information. A national solution makes sense." (Admin. Class Action Compl. ¶¶ 99-100.)

The Administrative Class Action Complaint stated that the Class consisted of:

All persons or entities in the United States who purchased, paid-for (in whole or in part), Bupropion Hydrochloride XL (150 mg) and/or Budeprion XL (300 mg) manufactured by Impax.

Excluded from the Classes are Defendants, any parent, subsidiary or affiliate of Defendants, and their officers, directors, and employees, who are or have been employed by Defendants, and any judicial officer who may preside over this action. (Id. ¶ 19.) Plaintiffs sued under California's Unfair Competition Law based on the omissions and misrepresentations surrounding Defendants' products. Plaintiffs allege that Defendants engaged in a pattern of unfair business practices that has harmed consumers, physicians, pharmacies, and insurance companies. They further allege that Defendants' actions have harmed competitors in that they allowed Defendants to unfairly seize market share. Plaintiffs also brought a claim under the California Consumer Legal Remedies Act for Defendants' failure to disclose the differences between their products and Wellbutrin XL, including the decreased efficacy and increased risks associated with Defendants' products. Defendants filed a motion to dismiss on March 26, 2010, arguing federal law preempted Plaintiffs' claims, and following the denial of Defendants' motion, Defendants answered the Administrative Class Action Complaint and discovery commenced in earnest. Plaintiffs moved for class certification on January 31, 2011. On June 23, 2011, the Supreme Court decided Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), which revived the preemption argument on which Defendants relied in their motion to dismiss. In September 2011, the parties filed cross-motions for summary judgment based on the preemption issue. On November 8, 2011, the parties participated in an 11-hour mediation session with the Hon. Diane M. Welsh (Ret.). With her continued help, the parties agreed to settle their dispute.

On February 1, 2012, following a hearing, the Court conditionally certified the Class and granted preliminary approval to the settlement agreement. (Order Preliminarily Approving Class Action Settlement, In re Budeprion XL Mktg. & Sales Practices Litig., MDL No. 09-2107 (E.D. Pa. Feb. 1, 2012), ECF No. 183.) In accordance with the Court's directive, the parties sent out notice of the settlement to the Class. As outlined in this Court's Order preliminarily approving the settlement, objectors were required to file with the Court, no later than May 11, 2012, "a notice of the objector's intention to appear, submit[] documentary proof that the objector is a member of the Class, state[] the basis for such objections, and serve[] copies of the foregoing and any other papers in support of such objections upon counsel for the parties identified in the Notice so that such papers are actually received by counsel for the parties by the date specified in the Notice." (Id.).

On May 9, 2012, the Court received a fax from the Office of the Attorney General of Texas, entitled: "Objection to Final Approval of Settlement in Budeprion XL Marketing and Sales Practices Litigation, MDL 2107 (lead case Cause No. 2:09-CV-2811); On behalf of approximately 182,376 affected Texas residents." (Texas Attorney General Letter, In re Budeprion XL Mktg. & Sales Practices Litig., MDL No. 09-2107 (E.D. Pa. May 25, 2012), ECF No. 193.) The objection seeks to "alert the Court to several concerns about the adequacy of representation received by the class, and the due process rights of absent class members." (Id.) The Attorney General of Texas requested that the Court withhold approval until either Class members received money or a modification of their release to ensure that the monetary claims by Class members were not extinguished by the settlement. In an abundance of caution, the Court directed that the fax from the Attorney General of Texas be placed on the docket. On May 11, 2012, Jaquelyn Anderson, a Texas resident represented by an attorney, filed an objection to the settlement. The Court conducted a fairness hearing on May 25, 2012, in which the Court heard from Jeffrey Weinstein, who represents Anderson. Nobody from the Attorney General of Texas's office was present at the fairness hearing.

On July 2, 2012, the Court issued an opinion granting class certification and final approval of the settlement. On July 25, 2012, Anderson appealed the decision and on August 7, 2012, the Attorney General of Texas filed the motion to intervene currently pending and a motion for extension of time to file a notice of appeal. The motion for an extension of time was filed a day before the Attorney General of Texas claimed the time period to appeal expired, and as a result he filed a notice of appeal the day after he filed the motion for an extension of time. (State of Texas's Notice of Appeal, In re Budeprion XL Mktg. & Sales Practices Litig., MDL No. 09-2107 (E.D. Pa. Aug. 8, 2012), ECF No. 207.)

II. DISCUSSION

Texas argues that it is entitled to intervene as of right and failing that, that this Court should grant its ...


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