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Vista Healthplan, Inc. v. Warner Holdings Company III

November 15, 2007

VISTA HEALTHPLAN, INC. AND UNITED FOOD AND COMMERCIAL WORKERS CENTRAL PENNSYLVANIA HEALTH AND WELFARE FUND, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
WARNER HOLDINGS COMPANY III, LTD., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

This matter comes before the Court on Plaintiffs' Motion for Final Approval of Settlement and Request for Attorneys' Fees, Costs and Incentive Awards in this putative class action. The parties previously moved for conditional certification of the class and preliminary approval of the settlement, which the Court granted by Order dated June 27, 2007. Plaintiffs filed their Motion for Final Approval on October 23, 2007. On November 6, 2007, the Court held a fairness hearing related to the settlement, as required by Federal Rule of Civil Procedure 23(e). The arguments and representations made on the record during that fairness hearing are hereby expressly incorporated and made a part of this Memorandum Opinion.

Upon a searching review of Plaintiffs' Motions for preliminary and final approval of the settlement and certification of the class, the arguments and representations made and the exhibits submitted at the fairness hearing, the relevant statutes and caselaw, and the entire record herein, the Court shall grant Plaintiffs' [101] Motion for Final Approval of Settlement and [103] Request for Attorneys' Fees, Costs and Incentive Awards.

I. BACKGROUND

A. Factual and Procedural Background

Plaintiffs, Vista Healthplan, Inc. ("Vista") and United Food and Commercial Workers Central Pennsylvania and Regional Health and Welfare Fund ("United Food"), brought this putative class action pursuant to Federal Rule of Civil Procedure 23 on behalf of themselves and a class of Third Party Payors who purchased, reimbursed, and/or paid for Ovcon 35 during the period April 22, 2004 through June 27, 2007 (the date on which the Court entered its Order preliminarily approving the settlement in this action).*fn1 Plaintiffs named as Defendants to this action Warner Chilcott Holdings Company III, Ltd., Warner Chilcott Corporation, Warner Chilcott (US) Inc., Warner Chilcott Company, Inc. (together "Warner Chilcott") and Barr Pharmaceuticals, Inc. ("Barr"). Plaintiffs filed their Second Amended Class Action Complaint ("SAC") on April 14, 2006, alleging that Defendants participated in an unlawful conspiracy to prevent a generic version of Warner Chilcott's Ovcon 35 from reaching the market. SAC ¶¶ 1-2. In particular, Plaintiffs allege that Defendants agreed that Warner Chilcott would pay Barr $20 million in exchange for Barr's agreement not to market its generic version of Ovcon 35 for five years. Id. ¶¶ 2-7. Plaintiffs further allege that Defendants' agreement denied Plaintiffs and other Class Members the benefits of competition and of cheaper generic versions of Ovcon 35, such that members of the Class paid supracompetitive prices for Ovcon 35 and suffered antitrust injury. Id. ¶ 8. Plaintiffs assert that Defendants' conduct violated Section 1 of the Sherman Act, 15 U.S.C. § 1, the antitrust and/or consumer protection statutes of certain states, and the unjust enrichment laws of the fifty states. Id. ¶¶ 77-93.

The Court entered a scheduling order regarding fact and expert discovery between the parties to this action. Pursuant to that scheduling order, since Plaintiffs commenced this action in December 2005, Plaintiffs and Class Counsel have engaged in extensive investigation relating to the claims and underlying events alleged in Plaintiffs' Second Amended Class Action Complaint. In particular, Class Counsel (1) reviewed and analyzed over 800,000 documents produced in this action; (2) researched and analyzed issues relating to class certification, liability, causation, and damages; (3) briefed substantive motions on class certification and liability; (4) deposed 27 employees of Defendants; (5) defended four Plaintiff depositions; and (6) retained and consulted with economists and other experts with respect to causation and damages. Pls.' Mem. of Law in Support of Mot. for Final Approval of Settlement and Request for Attorneys' Fees, Costs and Incentive Awards (hereinafter "Final Mem.") at 5-6; Mot. for Final Approval, Ex. B (10/23/07 Aff. of Kevin B. Love in Support of Mot. for Final Approval) (hereinafter "Love Aff.") ¶ 6. After a year of conducting discovery, the parties began serious discussions regarding possible resolutions of their dispute. Final Mem. at 6; Love Decl. ¶ 7. The Court initially referred this action to Magistrate Judge Alan Kay on November 27, 2006. See Order, Docket No. [78], Nov. 27, 2006. Several months later, after numerous meetings in person and via telephone, the parties agreed to settle this action. Final Mem. at 6; Love Decl. ¶ 7. The parties then finalized the terms of the proposed settlement over the course of a month, and the Settlement Agreement was executed on May 15, 2007. Final Mem. at 6; Love Decl. ¶ 7.

On June 27, 2007, the Court entered an order conditionally approving certification of the Class, preliminarily approving the settlement and providing the form and manner of notice to the Class. In particular, the Court's June 27, 2007 Order defined the Class as:

All Third Party Payors in the United States who purchased, reimbursed, and/or paid for Ovcon 35 at any time from April 22, 2004 through the date of the Order preliminarily approving the proposed settlement of this Action. Excluded from the Class are Defendants, their subsidiaries, affiliates, officers, and directors, and government entities. "Third Party Payors" shall mean any non-governmental entity that is: (i) a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy, or plan provides prescription drug coverage to natural persons; and (ii) is also at risk, pursuant to such contract, policy, or plan to provide prescription drug benefits, or to pay or reimburse all or part of the cost of prescription drugs dispensed to natural persons covered by such contract, policy, or plan.

A self-funded health benefit plan for employees of a government entity that satisfies the definition of "Third Party Payors" shall not be considered a government entity.

Order, Docket No. [100] at ¶ 3.

B. The Terms of the Settlement Agreement

Pursuant to the Settlement Agreement, Warner Chilcott and Barr will each donate branded combined hormonal contraceptive products with a retail value of $1,500,000 (for a total of $3,000,000) throughout the United States to (1) primary care physicians not currently receiving samples of the donated products who prescribe combined hormonal contraceptives, (2) university health centers or clinics, or (3) charitable organizations providing reproductive healthcare services to women. Warner Chilcott and Barr will pay all costs associated with their respective donations, and are required to provide certification to Class Counsel of their respective compliance with the Settlement Agreement's product donation requirements on the one-, two-, and three-year anniversaries of the Settlement Agreement's Effective Date. In addition, Warner Chilcott and Barr each agreed to pay $550,000, for a total value of $1,100,000, into a Fees Fund to be used to pay reasonable attorneys' fees and costs. Finally, Warner Chilcott and Barr each paid $50,000, for a total of $100,000, into a Costs Fund, which was used to pay the expenses associated with providing notice to the Class, settlement administration, and any Court-approved incentive payments. See Pls.' Mot. for Prelim. Approval of Settlement, Ex. A (Settlement Agreement), Section II; Final Mem. at 6-7.

C. Form and Manner of Notice to the Class

The Court's June 27, 2007 Order approved Plaintiffs' proposed form and manner of giving notice to the Class and found mailing of notices to all potential members of the Class, as well as publication of notice in National Underwriter: Life & Health/Financial Services Edition to be the "best means of providing notice practicable under the circumstances . . . in full compliance with the notice requirements of Rule 23 of the Federal Rules of Civil Procedure and due process." Order, Docket No. [100] at ¶¶ 6-9. The Order accompanying this Memorandum Opinion and the Affidavit of Charlene Young Regarding Mailing of Notice of Pendency of Class Action, Proposed Settlement and Fairness Hearing, filed in support of Plaintiffs' Motion for Final Approval describe in detail the manner in which notice was actually provided to members of the Class. See Final Mem. at 7-8, Ex. C (9/20/07 Young Decl.) (hereinafter "Young Aff."). In particular, the Settlement Administrator--Complete Claim Solutions--caused notices to be printed and, on July 13, 2007, mailed notices to 41,561 potential Class Members, using a database created and regularly used in notifying Third Party Payor class members in settlements of large pharmaceutical antitrust class actions. Young Aff. ¶¶ 4-6. In addition, the Settlement Administrator published notice in the July 23, 2007 issue of National Underwriter: Life & Health/Financial Services Edition. Id. ¶ 7.

The notice program apprised Class Members as to the content of the settlement and their rights under the settlement, including the right to opt-out or object. Final Mem. at 8; Young Aff., Exs. 1 and 2.The deadline for objecting to or opting-out of the settlement was August 27, 2007. Final Mem. at 8. The Settlement Administrator received fifty (50) discrete requests to opt-out of the settlement, and a list of those opting-out from the settlement is attached as Exhibit A to the accompanying Order. Young Aff. ¶ 14. In addition, Class Counsel received one objection to the settlement. Love Aff. ¶ 19, Ex. 3 (8/7/07 Letter from M. McTigue).*fn2 The nature of the objection is discussed in greater detail below.

D. Joint Motion for Final Approval and Fairness Hearing

On October 23, 2007, Plaintiffs filed their Motion for Final Approval of Settlement and Request for Attorneys' Fees, Costs and Incentive Awards. As required by Federal Rule of Civil Procedure 23(e), the Court held a fairness hearing on the record on November 6, 2007. Counsel for all parties appeared at the hearing. No objectors appeared at the hearing, despite being advised of their opportunity to do so via the notice campaign.

II. LEGAL STANDARD

A class may be certified for settlement purposes only, and such "settlement-only" classes have become increasingly prominent. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 618 (1997). Settlement-only class certification nevertheless obligates a Court to consider whether the proposed class meets the requirements of Federal Rule of Civil Procedure 23, although the Court need not determine whether the case, if tried, would present management problems. Id. at 620; Thomas v. Albright, 139 F.3d 227, 234 (D.C. Cir. 1998). As proponents of class certification, Plaintiffs have the burden ofestablishing that each of the elements of Rule 23(a) are met and that the class is maintainable pursuant to one of Rule 23(b)'s subdivisions. Amchem, 521 U.S. at 614; Fed. R. Civ. P. 23; Richards v. Delta Air Lines, Inc., 453 F.3d 525, 529 (D.C. Cir. 2006). The four prerequisites to a class action lawsuit under Rule 23(a) are: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims and defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. See Fed. R. Civ. P. 23(a). These four requirements are referred to as numerosity, commonality, typicality, and adequacy of representation. In addition, Plaintiffs must demonstrate that the class is maintainable under Rule 23(b). In the instant case, Plaintiffs seek ...


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