Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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

United States District Court, D. Kansas

June 4, 2019

IN RE EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation This Order Applies to Consumer Class Cases

          MEMORANDUM AND ORDER

          DANIEL D. CRABTREE UNITED STATES DISTRICT JUDGE

         This matter comes before the court on four motions to seal documents submitted in support of defendants' memoranda opposing class certification: (1) Mylan Defendants' Motion for Leave to Preliminarily File Documents Under Seal and for Approval of Sealing Process (Doc. 1503); (2) Pfizer Defendants' Motion for Leave to File Documents Preliminarily Under Seal and for Approval of Sealing Process (Doc. 1507); (3) Pfizer Defendants' Renewed Motion to File Under Seal Certain Exhibits in Support of its Opposition to Class Certification (Doc. 1526); and (4) Mylan Defendants' Renewed Motion for Leave to File Documents Under Seal (Doc. 1527). The court approves the process advanced in Documents 1503 and 1507 for presenting seal and redaction requests. And, the court grants the Pfizer defendants' renewed motion and grants in part and denies in part the Mylan defendants' renewed motion.

         I. Legal Standard Governing Seal Requests

         As the court previously has discussed, the Supreme Court recognizes a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978) (citations omitted). This right stems from “the citizen's desire to keep a watchful eye on the workings of public agencies, ” id. at 598, and it helps “preserv[e] the integrity of the law enforcement and judicial process, ” United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). As a result, “there is a ‘strong presumption in favor of public access.'” United States v. Pickard, 733 F.3d 1297, 1302 (10th Cir. 2013) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007)). That “strong presumption” is heightened when the information subject to a seal or redaction request (1) provides the basis for a court's adjudication of the merits of the litigation; or (2) is disclosed in another form or during a public proceeding. Id. at 1302, 1305; see also Mann, 477 F.3d at 1149 (concluding individual's privacy interest diminished where information previously disclosed in public court proceeding).

         “The right of public access to judicial records, however, is ‘not absolute' as ‘[e]very court has supervisory power over its own records and files.'” United States v. Walker, 761 Fed.Appx. 822, 835 (10th Cir. 2019) (quoting Nixon, 435 U.S. at 598). The party seeking to deny access must shoulder the burden to establish that a sufficiently significant interest “heavily outweighs the public interest in access.” Mann, 477 F.3d at 1149 (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)). And, “any denial of public access to the record must be ‘narrowly tailored to serve the interest' being protected by sealing or restricting access to the records.” Walker, 761 Fed.Appx. at 835 (emphasis in original) (quoting Press-Enter. Co. v. Superior Court of Cal., 478 U.S. 1, 12-13 (1986)).

         “Once a court orders documents before it sealed, the court continues to have authority to enforce its order sealing those documents, as well as authority to loosen or eliminate any restrictions on the sealed documents.” Pickard, 733 F.3d at 1300. And, even after a court orders documents sealed, the party advocating for sealing continues to bear the burden of justifying the decision to seal. Id. at 1302. Thus, to the extent the court grants the Pfizer defendants' and Mylan defendants' renewed motions, the grant is subject to continued reexamination, particularly if any information sealed or redacted by this Order proves important to the court's resolution of plaintiffs' class certification motion or if the information is exposed to the public during the class certification hearing.

         II. Application of Standard to Motions

         The court has reviewed each request to seal or redact an exhibit, and announces its conclusions as follows.

         A. The Pfizer Defendants' Renewed Motion (Doc. 1526)

         In their renewed motion, the Pfizer defendants seek to seal three documents: (1) Document 1526-3; (2) Document 1526-6; and (3) Document 1526-8. The court sealed the first two of these documents when plaintiffs submitted them in support of their motion for class certification. See Doc. 1477 at 2 (sealing Exhibit 36, Document 1430-2). For the same reasons stated in Document 1477, the court grants the Pfizer defendants' request to seal Documents 1526-3 and 1526-6. Document 1526-8, meanwhile, is an internal sales forecast prepared by TEVA Pharmaceuticals. And, although the forecast is several years old, it contains information from which competitors might determine TEVA's methods for forecasting sales. At this juncture in the proceedings, the court grants the request to seal Document 1526-8 and grants the Pfizer Defendants' Renewed Motion to File Under Seal Certain Exhibits in Support of its Opposition to Class Certification (Doc. 1526).

         B. The Mylan Defendants' Renewed Motion (Doc. 1527)

         The Mylan defendants' renewed motion seeks to seal or redact approximately 60 documents. The seal and redaction requests fall into three categories: (1) requests by the Mylan defendants and by third parties; (2) requests by plaintiffs; and (3) requests by Sanofi. The court considers each set of requests in turn.

         1. Requests by Mylan Defendants and Third Parties

         Mylan and the third parties seek to seal 18 documents. The court grants the requests for Exhibits 18, 19, 20, 26, 39, 43, 48, 52, 54, 55, 56, 57, and 62. These exhibits contain a combination of internal work product and confidential and proprietary information of a sensitive nature. Several of the exhibits also reveal the competitive strategies employed by the party requesting each seal. Disclosure of these documents to the public, including the requesting parties' competitors, may disadvantage the requesting parties' business interests unfairly. The court thus concludes the requesting parties have advanced a private interest that overcomes the strong presumption favoring public access.

         The court also grants in part the requests to seal Exhibit 27. Most of the information presented in Exhibit 27 reveals potentially commercially sensitive information about Express Scripts's strategy and motivations during negotiations. But, three passages-263-64, 271:1- 272:6, and 287:1-288:2-speak in general terms or provide background information about pharmacy benefit management that would apply to any company operating in Express Scripts's industry. Accordingly, while the court denies the request to seal the entirety of Exhibit 27, it grants the request to the extent that Mylan may submit a version of Exhibit 27 that redacts all but the cover page of the deposition, the three aforementioned passages, and the reporter's certificate.

         Next, the court grants in part the request to seal Exhibit 44, which is a bid sheet distributed by CVS to pharmaceutical manufacturers, such as Sanofi-Aventis. This bid sheet, by its very nature, is not kept within the confines of CVS. Instead, CVS provided the bid sheet to pharmaceutical companies with whom CVS sought to do business. And, it is not apparent from the record that anything prevented a pharmaceutical company from sharing information on CVS's bid sheet when negotiating with other pharmacy corporations. The court thus denies the request to seal Exhibit 44. But, the court will allow redaction of the “WAC Administrate Fee” percentage found on page four of the exhibit since this information represents a term of contracting with CVS.

         The court further grants in part the request to seal Exhibit 72. Here, the passage at 271:1-15 contains potentially confidential and proprietary information about Magellan's practices and services. Magellan thus has sustained its burden as to this portion of the exhibit. But, 271:16-272:22 contains only general information about how health insurance companies seek the lowest price for prescription drugs. And, the information relayed in this passage already can be found in the public domain. Accordingly, while Mylan may redact lines 271:1-15, the remainder of Exhibit 72 must be made accessible to the public.

         The court denies the request to seal Exhibit 49. Exhibit 49 contains what amounts to speculation between a Mylan employee and a CVS employee about drug pricing. And, the very fact that the information was shared between separate corporations undermines the assertion that the information is highly sensitive. The speculative nature of the e-mail conversation also defeats any argument that the e-mail chain reveals negotiation strategy. This is particularly true about the top two e-mails in the chain; neither one reveals anything of substance about Mylan or CVS.

         The court also denies the Mylan defendants' request to seal Exhibit 101. In support of the request, the Mylan defendants assert that they received the information in this exhibit from third parties with the understanding that the information would remain sealed. Mylan also argues that the document is marked “Highly Confidential.” Doc. 1527-1 at 11. But, understandings and agreements between parties, including Mylan's promises to third parties, are insufficient to sustain the request to seal where the court has an independent duty to protect the public interest in inspecting judicial documents.

         Also, Mylan and the third parties ask to redact information from nine additional Exhibits. The court grants the redaction requests as it applies to the highlighted portions of Exhibits 23, 24, and 71. These passages contain contractual and competitively sensitive information about the business practices of third parties. The proponents of the redaction requests could be placed at an unfair business disadvantage in future ventures if the highlighted passages were exposed to the public, including their competitors. Accordingly, the proponents of these requests have sustained their burdens and overcome the strong presumption favoring public access.

         The court grants in part and denies in part the requests to redact highlighted passages in Exhibit 7. Exhibit 7 contains excerpts of the deposition of plaintiffs' expert Meredith B. Rosenthal, Ph.D. The exhibit largely contains Ms. Rosenthal's opinions and general information about the sources upon which she relied when forming her opinions. But, some of the opinions reference sensitive information provided by Mylan. For that reason, and in an effort to narrowly tailor the redactions, the court grants the request to redact (1) 133:13-25; (2) 179:1-7; and (3) 258:1-10. The request to redact the remaining highlighted passages-50:1-9, 51:14-25, 138:3- 20, 171:6-15, and 261:14-20-is denied because these passages either discuss Mylan's sensitive information at a high level of generality or reveal, at most, that Mylan performed a sales forecast without explicitly stating the specifics of that sales forecast. That Mylan engaged in sales forecasting is hardly surprising, and disclosing that it did so is unlikely to harm Mylan.

         The court also grants in part the request to redact Exhibit 21. Exhibit 21 contains excerpts of the deposition of Prime Therapeutics's Federal Rule of Civil Procedure 30(b)(6) witness. The court grants the request to redact 72:23-25 and 130:1-25 because both passages reveal specifics about negotiations in which Prime Therapeutics engaged. The court, however, denies the request to redact 72:10-22 as this testimony provides general details about the negotiation process that do not appear unique to Prime Therapeutics. The court also denies the request to redact 20:1-6 as the record does not establish that information identifying which one of Prime Therapeutics's employees negotiated with particular pharmaceutical companies is secret information.

         The court also grants, in part, the request to redact Exhibit 25. Exhibit 25 contains excerpts of the deposition of Humana's Rule 30(b)(6) witness. The court grants the request to redact 18:1-13, 19:13-19, 217:8-24, and 284:10-285:25 as these passages reveal information unique to Humana or discuss Humana's negotiations at a high level of specificity. The court denies all other proposed redactions because they discuss general practices or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.