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Amicus Brief Filed in Pharmaceutical Antitrust Case

August 26, 2015

Last week, Public Justice filed an amicus brief in In re Prograf Antitrust Litigation, co-authored by TMLG’s Blythe Chandler, a case involving anti-trust claims against Astellas Pharma US, Inc. Plaintiffs allege that Astellas, the manufacturer of the brand name drug Prograf – an immunosuppressant that helps reduce the risk of organ rejection in transplant patients – filed a fraudulent citizen petition with the federal Food and Drug Administration (FDA) to delay the availability of a generic version of the drug. Such a delay forces patients and health plans to continue paying the higher price for brand-name Prograf.

The district court certified the case as a class action under Federal Rule of Civil Procedure 23(c)(4), but only on the question of whether Astellas violated antitrust laws. Because antitrust claims are expensive and difficult to prove and it is unlikely individuals would have the resources to pursue them on their own, class certification is key to the case.

On appeal, Astellas – supported by the Chamber of Commerce, argued that discrete issues cannot be certified for class treatment. The Chamber, which has a long and troubling history of trying to keep cases out of court, makes a host apocalyptic arguments about the “deluge” of “vexatious litigation” that could occur if issue classes are permitted. In particular, they argue that certification of issue classes will be “automatic” and that defendants will be forced to settle frivolous classes. Public Justice counters those arguments ignore the important gatekeeping role of trial courts. Public Justice’s brief provides numerous examples of trial court order carefully analyzing whether class certification is appropriate under Rule 23(c)(4).

The case raises important questions about class certification in federal court. The court’s answers to those questions could impact consumers’ and workers’ ability to band together to hold big corporations accountable for wrongdoing.

Read more about the case here.

The brief in this case was co-written by Leah Nicholls, Public Justice staff attorney, and Blythe Chandler, associate at Terrell Marshall Law Group PLLC.