In re Bystolic Antitrust Litigation

Background

The court held a hearing on November 6, 2020, concerning competing applications to appoint interim lead counsel in the direct-purchaser actions. The parties agreed that those actions should be consolidated. The court directed the Clerk of Court to consolidate the cases under No. 20-cv-5735 and stated that the direct-purchaser actions would be coordinated with the end-payor actions under the operative case-management plan.

Legal standard

Under Federal Rule of Civil Procedure 23(g), courts evaluating interim class counsel generally consider the same factors used to assess whether class counsel is adequate: the work counsel has done identifying or investigating possible claims, counsel’s experience with class actions and similar complex litigation, counsel’s knowledge of the applicable law, and the resources counsel will commit to the case. The court may also consider other matters relevant to counsel’s ability to represent the class fairly and adequately. When multiple applicants are adequate, the court must appoint the applicant best able to represent the class.

Court’s analysis

The court found that all applicants had substantial knowledge of the law and experience representing similar classes in complex antitrust and pharmaceutical cases. It therefore did not favor either group on experience or legal-knowledge grounds.

The court found that the first factor—the work done identifying and investigating the claims—clearly favored Bruce E. Gerstein and his firm, Garwin Gerstein & Fisher LLP, and David F. Sorensen and his firm, Berger Montague PC. Those applicants were the first to identify and investigate the claims and reported spending more than a year and more than 1,300 hours doing so. The court stated that the putative class would benefit from that investment, even if the reported number of hours were overstated.

The court found that the resources factor slightly favored Dianne M. Nast and Michael L. Roberts because they represented that they had all relevant resources within their firms. The court nevertheless concluded that this concern was not disqualifying at the preliminary stage. It also credited Garwin Gerstein & Fisher LLP and Berger Montague PC for the quality of their pleadings, vigorous representation, cooperation with end-payor counsel on case-management materials, commitment to diversity, and efforts to develop younger lawyers.

Disposition

The court GRANTED the application to appoint Bruce E. Gerstein and Garwin Gerstein & Fisher LLP, and David F. Sorensen and Berger Montague PC, as interim co-lead class counsel for the putative direct-purchaser class. The court DENIED Garwin and Berger’s request to appoint an executive committee. The court also DENIED the application to appoint Dianne M. Nast and Michael L. Roberts as interim lead class counsel. Judge Lewis J. Liman explained that two co-lead counsel were sufficient at this stage and would help avoid unnecessary costs and duplicated work. The court noted that, if a class were later certified, there would be another opportunity to select class counsel.