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In re Epipen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation

United States District Court, D. Kansas

January 23, 2019

IN RE EpiPen Epinephrine Injection, USP Marketing, Sales Practices and Antitrust Litigation (This Document Applies to the Sanofi)

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         This 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.

         I. Factual Background

         On 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 A).[1] 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 . . . .”).

         Individual 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.

         The 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.

         On 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 practice.

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).

         On 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).

         The parties completed coordinated fact discovery by the October 31, 2018, deadline.[2] 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).

         With 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 efficiencies.

         Mylan 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.

         The court considers the parties' competing arguments and applies the ...


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