News

District Court Certifies Nationwide Classes Against AstraZeneca and Bristol Myers Squibb in AWP Litigation

WW announces that today Judge Patti B. Saris, who has been presiding over the AWP litigation for seven years, entered an order granting certification of Plaintiffs' claims against AstraZeneca ("AZ") and Bristol Myers Squibb ("BMS") under the consumer protection laws of thirty-six states. The claims certified include the claims of third-party payors (TPPs) who paid for certain of AZ's and BMS's physician-administered drugs inside and outside of the Medicare Part B context and the claims of consumers who paid for those drugs outside of the Medicare Part B context.

In certifying a nationwide class, the Court "grouped" similar consumer protection statutes together based on extensive analyses and proposed jury instructions submitted by Plaintiffs. In so doing, the Court relied on its experience in overseeing the litigation and therefore rejected AZ's and BMS's arguments that certifying such classes would make the resulting trial unmanageable. While the Court recognized that other courts have acknowledged the difficulty of certifying groups of consumer protection claims, the Court held that "[m]uch of the time, courts have declined to certify multi-state class actions because plaintiffs' class counsel failed to do their homework." Id. at 23. Here, however, she found that Plaintiffs had shouldered that burden. Therefore, the Court concluded that "having closely studied the statutes and weeded out the ones with substantially different standards, and achieved an understanding of the factual disputes involved here, I conclude that a class action is superior to individual actions, and that certifying a multi-state class action is superior to my other option of certifying more than thirty separate class actions." Id. at 59.

In November 2006, Judge Saris presided over a nine-week bench trial against four defendants, including AZ and BMS, under Massachusetts law only. The Court found that AZ and BMS had engaged in unfair and deceptive conduct by publishing fraudulently-inflated AWPs and marketing certain of their physician-administered drugs based on those inflated AWPs. That order is now on appeal before the United States Court of Appeals for the First Circuit. Oral argument on those appeals is currently scheduled for November 4, 2008. Judge Saris' order entered today clears the way for Plaintiffs to try their remaining claims against AZ and BMS. The Court ordered that Plaintiffs' claims against AZ and BMS should be tried separately.

For a copy of the Court's memorandum opinion, click here.