City of Providence, Rhode Island v. AbbVie Inc.

Background

The opinion addresses leadership applications in related lawsuits concerning alleged agreements between Forest and generic-drug companies to delay generic versions of Bystolic, a prescription medicine used to treat high blood pressure. The complaints alleged that the agreements included payments and other arrangements in exchange for the generic companies’ agreements not to compete until shortly before expiration of the patent at issue.

The lawsuits were divided into two groups. Direct purchasers asserted federal antitrust claims for damages on behalf of people and entities that bought Bystolic directly from a drug manufacturer. End-payors—including consumers, health insurers, and welfare plans—asserted state antitrust, consumer-protection, and unjust-enrichment claims for damages, as well as federal antitrust claims seeking injunctive relief.

Several law firms sought appointment as interim lead or co-lead counsel for the proposed end-payor class. A joint application by Gerstein & Fisher LLP and Berger Montague PC sought appointment for the proposed direct-purchaser class.

Legal standard

Federal Rule of Civil Procedure 23(g)(3) allows a court to appoint interim class counsel before deciding whether to certify a class. The appointment can clarify responsibility for early work such as motions, discovery, class-certification proceedings, and settlement discussions.

The court applied the factors used to evaluate class counsel under Rule 23(g)(1)(A): the work counsel performed investigating the claims, counsel’s experience with class actions and similar litigation, knowledge of the applicable law, and the resources counsel would commit. The court also could consider other matters relevant to counsel’s ability to fairly and adequately represent the class. When more than one applicant is adequate, the court must select the applicant best able to represent the plaintiffs’ interests.

End-payor counsel

The court found that all applicants had significant experience with pharmaceutical class actions and antitrust litigation and appeared able to commit the necessary resources. It concluded that the question was close but that the Cohen Milstein Group—Sharon K. Robertson of Cohen Milstein Sellers & Toll LLC and Robin van der Muelen of Labaton Sucharow LLC—was best able to represent the proposed end-payor class.

The court found that the early-work factor did not decisively favor either the Cohen Milstein Group or the Motley Rice Group. The Motley Rice Group filed the first end-payor action and described work including preparing organizational documents and negotiating disclosure of relevant documents. The Cohen Milstein Group filed the second and third end-payor actions, addressed state-law demand and notice requirements, helped organize the end-payor plaintiffs, worked on early case-management documents, coordinated with other plaintiffs and defendants, and consulted experts.

The experience and legal-knowledge factors favored the Cohen Milstein Group. The court credited the group’s experience in pharmaceutical antitrust cases, including alleged pay-for-delay schemes, its experience with class-certification issues, and the firms’ history of working together as co-lead counsel. The court also said the group’s established New York presence slightly favored it, although that factor was not decisive. The court considered the applicants’ commitments to diversity, but found that factor did not determine the outcome because both leading groups offered women in leadership positions and demonstrated a commitment to diversity.

Direct-purchaser counsel

The court denied the application by Gerstein & Fisher LLP and Berger Montague PC to serve as interim counsel for the proposed direct-purchaser class. Those firms were the only firms that had filed a putative class action for the same named plaintiff, so the court found no competing lawsuits requiring interim counsel. The firms also did not show that appointing them would provide an efficiency or other benefit beyond their representation of the only named plaintiff.

Order and effect

The court granted the motion to appoint Sharon K. Robertson and Robin van der Muelen as interim co-lead counsel for the proposed end-payor class. It assigned them responsibility for the overall conduct of that litigation and authority over work including pleadings, motions, discovery, expert witnesses, settlement discussions, document review, coordination among plaintiffs’ counsel, and fee applications. They could not delegate responsibility or assign legal work to other firms without prior court approval.

The court denied the other motions for appointment as interim counsel for the proposed end-payor class and denied the motion for interim counsel for the proposed direct-purchaser class. It ordered the end-payor actions consolidated under No. 20-cv-5538, required joint case-management submissions, and set related scheduling and conference requirements. The opinion did not decide whether either proposed class would ultimately be certified or resolve the underlying antitrust claims.