The opinion of the court was delivered by: Honorable Emmet G. Sullivan, United States District Judge.
ORDER CERTIFYING SETTLEMENT CLASS AND PRELIMINARILY APPROVING PROPOSED SETTLEMENTS
Upon review and consideration of the: (i) Stipulation of Settlement dated May 27, 2003, executed on behalf of Plaintiff Vista Healthplan, Inc., individually, and as representative of the Settlement Class (as defined below), and Bristol-Myers Squibb Company; and (ii) Stipulation of Settlement Dated May 27, 2003, executed on behalf of Plaintiff Vista Healthplan, Inc., individually, and as representative of the Settlement Class, and American BioScience, Inc. (collectively, the "Settlement Agreements"), and having held a hearing on June 3, 2003, it is hereby ORDERED as follows:
Preliminary Approval of Settlements and Conditional Certification of the Settlement Class
1. The Court finds that it has jurisdiction over this Action.
2. The terms of the Settlement Agreements are preliminarily approved, subject to further consideration at the Fairness Hearing provided for below. The Court finds that the settlements reached in the Settlement Agreements are sufficiently within the range of reasonableness so that notice of the proposes settlements should be given as provided below in paragraphs 6 through 9.
3. The Court conditionally certifies the following Settlement Class ("Class"): All "Third-Party Payors" (defined immediately below) in the United States which, at any time from January 1, 1999 through December 31, 2002, paid, in whole or in part, for Taxol and/or generic paclitaxel in the United States. Excluded from the Class are Defendants, their subsidiaries, affiliates, officers and directors, and government entities.
"Third-Party Payor" shall mean any entity that (i) is a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy or plan provides coverage for the administration of Taxol or generic paclitaxel to natural persons, and (ii) is also at risk, pursuant to such contract, policy or plan, to pay or reimburse all or part of the costs of providing such coverage.
A self-funded health benefit plan for employees of a government entity that satisfies the definition of "Third-Party Payor" shall not be considered a "government entity."
4. The Court conditionally finds that Vista Healthplan, Inc. is an adequate class representative for the Class. If the Settlement Agreements are terminated or are not consummated for any reasons whatsoever, the certification of the Class shall be void, and the defendants shall have reserved all of their rights to oppose any and all class certification motions and to contest the adequacy of Vista Healthplan, Inc. as a representative of any putative class.
5. The Court appoints, consistent with prior orders, Hanzman & Criden, P.A., as lead counsel for the Class ("Lead Counsel").
Notice to Potential Class Members
6. Before or on June 20, 2003 (or 17 calendar days after entry of this Order), Lead Counsel shall direct the Claims Administrator (defined below) to mail by first class mail, postage prepaid, copies of the Notice of Proposed Settlement and Settlement Hearing ("Notice"), substantially in the form attached as Exhibit 3 to Plaintiff's Motion for Preliminary Approval, to all potential members of the Class, to the extent that they can be identified by reasonable diligence.
7. Lead Counsel shall also direct the Claims Administrator to have published a Summary Notice of Proposed Settlement and Settlement Hearing ("Summary Notice"), substantially in the form attached as Exhibit 4 to Plaintiff's Motion for Preliminary Approval: (i) one day a week for two consecutive weeks in National Underwriter: Life & Health/Financial Services Edition; and (ii) one day a week for two consecutive weeks in the New York Times. Summary Notice shall be first published as soon as practicable after entry of this Order, and in all events, before June 30, 2003.
8. Prior to the Fairness Hearing, Lead Counsel shall file with the Court a sworn statement attesting to compliance with the ...