United States District Court, D. Kansas
IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation (This Document Applies to the Sanofi)
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
matter comes before the court on plaintiff Sanofi-Aventis
U.S. LLC's (“Sanofi”) Motion for a Suggestion
of Remand Pursuant to Rule 10.1(b) of Rules of Procedure of
the United States Judicial Panel on Multidistrict Litigation
and 28 U.S.C. § 1407(a). Doc. 1248. Defendants Mylan
Inc. and Mylan Specialty L.P. (collectively,
“Mylan”) oppose Sanofi's request for a
suggestion of remand. Doc. 1322. After considering the
parties' competing arguments, the court denies
Sanofi's Motion for a Suggestion of Remand. It does so,
of course, without prejudice to a refiled motion at a later
stage in the MDL proceeding. The court explains how it
reaches this decision, below.
August 3, 2017, the Judicial Panel on Multidistrict
Litigation (“JPML”) transferred four lawsuits to
our court for coordinated and consolidated proceedings.
See In re: EpiPen (Epinephrine Injection, USP) Mktg.,
Sales Practices & Antitrust Litig., 268 F.Supp.3d
1356 (J.P.M.L. 2017); see also Doc. 1-1 (Schedule
The JPML determined that the lawsuits “involve common
questions of fact” and that each action had
“significant factual overlap with the other
actions.” In re: EpiPen (Epinephrine Injection,
USP) Mktg., Sales Practices & Antitrust Litig., 268
F.Supp.3d at 1359. The JPML thus concluded that
“centralization in the District of Kansas will serve
the convenience of the parties and witnesses and promote the
just and efficient conduct of this litigation” by
“eliminat[ing] duplicative discovery; prevent[ing]
inconsistent pretrial rulings, including with respect to
class certification; and conserv[ing] the resources of the
parties, their counsel, and the judiciary.”
Id. And, under 28 U.S.C. § 1407, the JPML
transferred the actions to the District of Kansas “for
coordinated and consolidated pretrial proceedings.”
Id. at 1360; see also 28 U.S.C. § 1407
(“When civil actions involving one or more common
questions of fact are pending in different districts, such
actions may be transferred to any district for coordinated or
consolidated pretrial proceedings . . . by the judicial panel
on multidistrict litigation . . . .”).
consumers or third-party payors filed all but one of the
lawsuits in this MDL. Those consumers or third-party payors
allege they purchased EpiPens for use by themselves, their
families, or their members, employees, insureds,
participants, or beneficiaries. For convenience, the
MDL's participants have called those actions “the
consumer class cases, ” a convention the court uses in
this Order. Among other things, the consumer class cases
assert that defendants-sellers and manufacturers of the
EpiPen-violated federal and state antitrust laws, the federal
RICO Act, and various state consumer protection laws.
Plaintiffs in the consumer class cases also seek
certification of multiple classes.
other case in this MDL differs from the consumer class cases.
It is Sanofi-Aventis U.S. LLC v. Mylan Inc. et al.,
No. 17-2452 (“the Sanofi case”). Sanofi
filed this lawsuit in the District of New Jersey on April 24,
2017. Sanofi is a pharmaceutical company who says it competes
with Mylan. In its case, Sanofi alleges that Mylan engaged in
a variety of anticompetitive conduct designed to prevent
Auvi-Q®-Sanofi's product that competed
with the EpiPen-from gaining access to the epinephrine
autoinjector market, and designed to prevent consumers from
acquiring the Auvi-Q® . Sanofi asserts three
Sherman Antitrust Act Section 2 claims against Mylan. These
claims assert: (1) exclusive dealing; (2) deceptive conduct
to further monopolization; and (3) monopolization. Complaint
at 62-66, Sanofi-Aventis US, LLC v.Mylan, Inc., No.
17-2452, (D. Kan. Apr. 24, 2017), ECF No. 1. Sanofi brings
this action only for itself, and not on behalf of any other
plaintiffs or putative class members. So, Sanofi's
Complaint neither asserts class action allegations nor seeks
certification of a class.
September 14, 2017, the court determined that the differences
between the consumer class cases and the Sanofi case
warranted separate litigation tracks. Doc. 42 at 3. Thus, the
court established two separate tracks for this
MDL-i.e., the consumer class cases and, distinct
from them, the Sanofi case. Id. at 3, 5.
Indeed, the JPML's Transfer Order envisioned that the
court might use this approach:
To the extent Sanofi prese'nts unique factual
and legal issues, the transferee judge has the discretion to
address those issues through the use of appropriate pretrial
devices, such as separate tracks for discovery and motion
See In re: EpiPen (Epinephrine Injection, USP) Mktg.,
Sales Practices & Antitrust Litig., 268 F.Supp.3d at
1359 (citing In re: McCormick & Co., Pepper Prods.
Mktg. & Sales Practices Litig., 148 F.Supp.3d 1364,
1366 (J.P.M.L. 2015)). Also, the JPML recognized, the court
“may recommend Section 1407 remand of Sanofi
in advance of other actions if he deems it
appropriate.” Id. (emphasis added).
October 19, 2017, the court entered Scheduling Order No. 2.
Doc. 61. This Scheduling Order applies to both litigation
tracks, and it established deadlines for coordinated fact
discovery. Also, the Scheduling Order sets deadlines for
non-coordinated proceedings in both the Sanofi case
and the consumer class cases. Among other things, the
Scheduling Order established an October 31, 2018, deadline
for completing coordinated fact discovery and a November 30,
2018, deadline for filing a motion to remand the
Sanofi case. Id. at 2. After Sanofi asked
the court to accelerate the briefing schedule for the
Sanofi remand motion, the court accelerated the
deadline for a remand motion to November 1, 2018.
See Doc. 1019 (Scheduling Order No. 3).
parties completed coordinated fact discovery by the October
31, 2018, deadline. On October 18, 2018, the court entered
Scheduling Order No. 4. It established a schedule governing
expert discovery for the Sanofi case only. Doc.
1146. Also, on November 26, 2018, the court entered
Scheduling Order No. 6. It established deadlines for
dispositive and Daubert motions for the
Sanofi case only. Doc. 1298. Sanofi represents that
the parties currently are engaged in non-coordinated
discovery of experts in the Sanofi case. Doc. 1249
at 10. Meanwhile, the consumer class plaintiffs have filed
their Motion for Class Certification. Doc. 1353.
Defendants' response to that motion is due March 18,
2019, and the class plaintiffs' reply is due April 22,
2019. Doc. 1263 at 1 (Scheduling Order No. 5).
its current motion, Sanofi asserts that the court now should
follow the JPML's proposal and file a suggestion of
remand of the Sanofi case, suggesting that the JPML
should remand its case to its original district-the District
of New Jersey. Sanofi argues that remand is appropriate at
this stage because the parties have completed all coordinated
proceedings. And, Sanofi contends, “each of the
[separate litigation tracks] have gone their separate
ways.” Doc. 1249 at 10. Thus, Sanofi asserts, its
continued participation in the MDL will produce no additional
disagrees. Mylan argues that, consistent with Section 1407,
the JPML transferred the MDL cases to our court “for
coordinated or consolidated pretrial proceedings.” 28
U.S.C. § 1407(a). Mylan contends that the MDL's
coordinated pretrial proceedings are not yet complete. And,
Mylan argues, issues in the Sanofi case still
overlap with issues in the consumer class cases. Thus, Mylan
contends, remanding the Sanofi case is not yet
appropriate because continued consolidation and coordination
of all the MDL cases will maximize efficiencies, prevent
duplication, and avoid inconsistent rulings.
court considers the parties' competing arguments and
applies the ...