Case 2:17-md-02785-DDC-TJJ Document 2623 Filed 07/11/22 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`MDL No: 2785
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`Case No. 17-md-2785-DDC-TJJ
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`IN RE: EpiPen (Epinephrine
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` Injection, USP) Marketing,
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` Sales Practices and Antitrust
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` Litigation
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`(This Document Applies to Consumer
`Class Cases)
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`________________________________________
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`FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE
`FOR THE MYLAN DEFENDANTS
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`This matter came before the court on July 6, 2022, as scheduled by the “Order
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`(I) Preliminarily Approving Settlement Under Fed. R. Civ. P. 23(e)(1), (II) Appointing the
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`Settlement Administrator, (III) Approving Form and Manner of Notice to Class Members,
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`(IV) Scheduling a Final Fairness Hearing to Consider Final Approval of the Settlement, and (V)
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`Granting Related Relief” (“Order”) dated March 11, 2022 (Doc. 2594), and on the Class
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`Plaintiffs’ Motion for Final Approval of Settlement, Approval of Plan of Allocation, and Award
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`of Attorneys’ Fees, Expenses, and Service Awards (Doc. 2612) set forth in the Stipulation of
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`Class Action Settlement (“Settlement Agreement”) dated February 27, 2022 (Doc. 2590-2). The
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`court finds that due and adequate notice was given to the Class as required in the Order. And,
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`after considering all papers filed and proceedings had herein and good cause appearing therefore,
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`IT IS HEREBY ORDERED, ADJUDGED, AND DECREED by the court that:
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`1.
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`This Final Judgment and Order of Dismissal with Prejudice for the Mylan
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`Defendants (“Judgment”) incorporates by reference: (a) the Settlement Agreement; (b) the
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`Notice of Proposed Settlement of Class Action (Doc. 2590-4) and Summary Notice (Doc. 2590-
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`6) (collectively, the “Notice”); and (c) the Declaration of the Settlement Administrator (Doc.
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`2590-8) filed with this court on February 28, 2022. All terms used in this Order shall have the
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`same meanings as set forth in the Settlement Agreement, unless otherwise set forth in this Order.
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`2.
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`This court has jurisdiction over the subject matter of the Action1 and Other
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`Actions2 and over all Settling Parties to the Action and Other Actions, including all Class
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`Members.
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`3.
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`The Notice given to the Class was the best notice practicable under the
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`circumstances and of the matters set forth therein, including the proposed Settlement set forth in
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`the Settlement Agreement, to all Persons entitled to such notice, and said Notice fully satisfied
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`the requirements of the Federal Rules of Civil Procedure (including Rules 23(c)–(e)), the United
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`States Constitution (including the Due Process Clause), the Rules of this court, and other
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`applicable law.
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`4.
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`Under Rule 23 of the Federal Rules of Civil Procedure, the court now affirms its
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`determinations in the Order, fully and finally approves the Settlement set forth in the Settlement
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`Agreement in all respects, and finds that:
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`(a)
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`the Settlement Agreement and the Settlement contained therein, are, in all
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`respects, fair, reasonable, and adequate, and in the best interest of the Class;
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`(b)
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`there was no collusion in connection with the Settlement;
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`1 The Settlement Agreement defines the “Action” as this pending MDL—i.e., Case No. 17-md-2785-
`DDC-TJJ (MDL No. 2785). See Doc. 2590-2 at 7 (Settlement Agreement ¶ IV.1.1.1.).
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`2 The Settlement Agreement defines the “Other Actions” as the following four cases, collectively: (1)
`Ipson v. Viatris Inc., No. 2:21-cv-02556-DDC-TJJ (D. Kan); (2) Gill v. Viatris Inc., No. 2:21-cv-02534-
`DDC-TJJ (D. Kan.); (3) Dvorak v. Viatris Inc., No. 2:21-cv-02561-DDC-TJJ (D. Kan.); and (4) Sumner v.
`Viatris Inc., No. 2:21-cv-02555-DDC-TJJ (D. Kan.). See Doc. 2590-2 at 12 (Settlement Agreement ¶
`IV.1.1.25.).
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`(c)
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`the Settlement was the product of informed, arm’s-length negotiations
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`among competent, able counsel; and
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`(d)
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`the record is sufficiently developed and complete to have enabled the
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`Plaintiff Class Representatives and the Mylan Defendants to have adequately evaluated and
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`considered their positions.
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`5.
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`The court thus authorizes and directs implementation and performance of all the
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`terms and provisions of the Settlement Agreement, as well as the terms and provisions of this
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`Judgment. Except for any individual claims of those persons or entities who have validly and
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`timely requested exclusion from the Class, as set forth in Exhibit F to Class Plaintiffs’ Final
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`Status Report Re Implementation of Class Notice (Doc. 2323-1 at 28–59) and in the Pfizer
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`Settlement Final Judgment (Doc. 2507 at 8), the court hereby dismisses the Action and Other
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`Actions against the Mylan Defendants and all Plaintiffs’ Released Claims against the Mylan
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`Defendants’ Released Parties with prejudice. The Settling Parties are to bear their own costs,
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`except for and to the extent provided in the Settlement Agreement and any separate order(s)
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`entered by the court deciding Class Counsel’s Motion for Award of Attorneys’ Fees and
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`Expenses.
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`6.
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`The Releases set forth in Section 4 of the Settlement Agreement, together with the
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`definitions contained in the Settlement Agreement relating to it, are expressly incorporated by
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`reference into this Order. The court thus orders that:
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`(a)
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`Upon the Effective Date, and as provided in the Settlement Agreement,
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`Plaintiff Class Representatives shall, and each of the Class Members shall be deemed to have,
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`and by operation of this Judgment shall have, fully, finally, and forever released, relinquished,
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`and discharged any and all Plaintiffs’ Released Claims against the Mylan Defendants’ Released
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`Parties, whether or not such Class Member shares in the Settlement Fund. Claims to enforce the
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`terms of the Settlement Agreement are not released.
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`(b)
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`Plaintiff Class Representatives and all Class Members, and anyone
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`claiming through or on behalf of any of them, are hereby forever barred and enjoined from
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`commencing, instituting, prosecuting, or continuing to prosecute any action or other proceeding
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`in any court of law or equity, arbitration tribunal, or administrative forum, asserting any of the
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`Plaintiffs’ Released Claims against any of the Mylan Defendants’ Released Parties.
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`(c)
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`Upon the Effective Date, and as provided in the Settlement Agreement,
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`each of the Pfizer Defendants’ Released Persons shall be deemed to have, and by operation of this
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`Judgment shall have, fully, finally, and forever released, relinquished, and discharged Plaintiffs’
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`Released Persons, including Class Counsel, from all Defendants’ Released Claims, except for
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`claims relating to the enforcement of the Settlement.
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`7.
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`Upon the Effective Date, any and all persons or entities shall be permanently
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`barred, enjoined, and restrained, to the fullest extent permitted by law, from bringing,
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`commencing, prosecuting, or asserting any and all claims, actions, or causes of action for
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`contribution or indemnity or otherwise against the Mylan Defendants or any of the Mylan
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`Defendants’ Released Parties seeking as damages or otherwise the recovery of all or any part of
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`any liability, judgment, or settlement which they pay or obligated or agree to pay to the Class or
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`any Class Member, arising out of, based upon, relating to, concerning, or in connection with any
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`facts, statements, or omissions that were or could have been alleged in the Action or Other
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`Actions. Notwithstanding the foregoing, nothing herein shall bar any action by any of the
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`Settling Parties to enforce the terms of the Settlement Agreement.
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`8.
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`Four individuals—Mamiesha Banks, Amanda McCrary, Carol Fuller, and Arthur
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`Vergara—have written to co-lead counsel asking to opt out of the Settlement. Doc. 2619 at 5, 8–
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`20 (Pritzker Decl. ¶ 6, Exs. A–D). Each of these individuals previously filed a timely request
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`seeking exclusion from the Action, which the Settlement Administrator confirmed in the Final
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`Status Report filed February 26, 2021. Doc. 2323-1. Because these four individuals were
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`already excluded from the class when they timely filed their requests, they are no longer class
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`members. Thus, the court need not take any action with respect to these four individuals.
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`9.
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`Eleven individuals and one employer—Barbara Nuckols, Kathy Valleau, Marcia
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`Engen, Charmaine Jones, Melisa Nguyen, Amy Dollin, Anthony Aiden, M. Denny, Justine
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`Chiang (Doc. 2615), Najeeha Khan (Doc. 2614), Brian and Katrina Catron,3 and Central Painting
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`& Sandblasting—have made belated requests to be excluded from the Settlement. Doc. 2619 at
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`5–6, 21–58 (Pritzker Decl. ¶¶ 7–8, Exs. E–P). Plaintiffs do not oppose or object to these
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`requests, while the Mylan Defendants submit that 11 of these 12 requests (all but Kathy Valleau,
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`whose spouse reports that Ms. Valleau passed away in 2018) do not meet the “excusable neglect”
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`legal standard the court applied during the Pfizer Settlement proceedings: “(1) whether the
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`movant’s neglect [in seeking a timely opt-out] was excusable, and (2) whether either party would
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`be substantially prejudiced by the court’s action.” See Burns v. Copley Pharms., Inc., No. 96-
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`8054, 1997 WL 767763, at *3 (10th Cir. Dec. 11, 1997) (citing Supermarkets Gen. Corp. v.
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`Grinnell Corp., 490 F.2d 1183, 1186 (2d Cir.1974)); see also In re Four Seasons Sec. Laws
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`Litig., 493 F.2d 1288, 1290–91 (10th Cir. 1974) (holding that trial court didn’t err by permitting
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`3 Brian and Katrina Catron made one joint submission to co-lead counsel requesting exclusion from the
`Settlement. See Doc. 2619 at 57–58 (Pritzker Decl. Ex. P). The court treats the request as one request
`here.
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`a late opt-out where the “facts support[ed] a finding” of excusable neglect and “there was no
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`prejudice” sustained from the late opt-out).
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`Of the 12 belated opt-out requests, only one provides the court with enough information
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`to determine that: (1) the belated request is the result of excusable neglect, and (2) permitting the
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`late opt-out won’t prejudice any party. Cf. Burns, 1997 WL 767763, at *3 (reversing a district
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`court’s “summary ruling” that provided “no findings indicating how the district court reached its
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`conclusions” to permit a late opt-out). Kathy Valleau’s husband submitted a letter explaining
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`that Ms. Valleau passed away in 2018, and that he believes he already had requested an opt out
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`for his wife from the Pfizer settlement. Doc. 2619 at 27 (Pritzker Decl. Ex. F). Based on this
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`submission, the court concludes that Kathy Valleau’s husband has established excusable neglect
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`for Ms. Valleau’s failure to opt out in a timely fashion. And, the court finds, no prejudice will
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`result from permitting Ms. Valleau’s late opt-out. So, the court excludes Ms. Valleau from the
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`class. As a consequence, she doesn’t have standing to object to the Settlement. See Harper v.
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`C.R. Eng., Inc., 746 F. App’x 712, 718 (10th Cir. 2018) (“Opted-out class members lack standing
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`to object to a settlement.”).
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`The remaining 11 belated opt-out requests (Barbara Nuckols, Marcia Engen, Charmaine
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`Jones, Melisa Nguyen, Amy Dollin, Anthony Aiden, M. Denny, Justine Chiang, Najeeha Khan,
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`Brian and Katrina Catron, and Central Painting & Sandblasting) don’t provide the court with
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`enough information to conclude that permitting them to opt out belatedly is warranted. So, the
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`court denies their requests to opt out.
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`Also, to the extent Justine Chiang, Najeeha Khan, M. Denny, and the Catrons assert an
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`“objection” to the Settlement, the court overrules their objections. See Doc. 2615 at 1 (stating
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`that Ms. Chiang “object[s] to the Settlement, the Plan of Allocation, or the fees and expenses”
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`and that she does “not wish to participate in the . . . Settlement”); Doc. 2614 at 1 (stating that Ms.
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`Khan “object[s] to the Settlement and ask[s] to be uninvolved in the proceedings”); Doc. 2619 at
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`50 (Pritzker Decl. Ex. M) (stating that M. Denny “object[s] and do[es] not want to be party to
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`this lawsuit, settlement, plan of allocation, or the fee and expense application”); id. at 58
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`(Pritzker Decl. Ex. P) (stating that the Catrons “object to being part of the settlement and do not
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`wish to participate”). Fed. R. Civ. P. 23(e)(5)(A) permits class members to object to a proposed
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`class action settlement, but the Rule also requires the objection to “state with specificity the
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`grounds for the objection.” These four submissions provide no reason or grounds for their
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`purported “objections.” And, as a result, the court denies the objections because they don’t
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`comply with Fed. R. Civ. P. 23(e)(5)(A).
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`10.
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`Two individuals—Jesse Danielson (Doc. 2607) and Monica Shelton—appear to
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`“object” to the Settlement but provide information to establish that each is not a Class Member.
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`See Doc. 2619 at 7, 59–62 (Pritzker Decl. ¶ 9, Exs. Q–R); see also id. at 60 (Pritzker Decl. Ex.
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`Q) (Jesse Danielson submission explaining his “insurance has covered 100% of [his EpiPens],”
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`which “excludes [him] from the share [sic] in the distribution of settlement funds”); id. at 62
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`(Pritzker Decl. Ex. R) (Monica Shelton submission explaining she was “on MedCost and
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`Medicaid while . . . getting these EpiPens” and she “never had to pay out of pocket for them”).
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`Because these two individuals haven’t shown they are Class Members—to the contrary, they
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`have shown that they don’t qualify as Class Members—they have no standing to object to the
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`Settlement. See Heller v. Quovadx, Inc., 245 F. App’x 839, 842 (10th Cir. 2007) (explaining that
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`“‘non-class members have no standing to object’” to a proposed settlement (quoting Gould v.
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`Alleco, Inc., 883 F.2d 281, 284 (4th Cir. 1989))). Thus, the court need not take any action on
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`these two individuals’ submissions.
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`11.
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`These conclusions leave one remaining objection4—submitted by Dorothy
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`Conners (Doc. 2605). Ms. Conners’s submission fails to state whether she qualifies as a Class
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`Member. Indeed, it just asserts that she “object[s] to the Settlement completely.” Id. at 4. But
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`her submission doesn’t “state with specificity the grounds for the objection[,]” as Fed. R. Civ. P.
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`23(e)(5)(A) requires. Thus, the court overrules Ms. Conners’s objection (Doc. 2605) because
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`she does not make any showing that she is a Class Member, nor does she provide the basis or
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`specific reasons for her objection, all of which is required by Rule 23 and the Preliminary
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`Approval Order to qualify as a valid objection.
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`12.
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`Any Plan of Allocation and Distribution submitted by Class Counsel or any order
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`entered deciding any attorneys’ fees, expenses, or service awards to the Plaintiff Class
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`Representatives shall in no way disturb or affect this Judgment and must be considered separate
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`from this Judgment.
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`13.
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`Neither the Settlement Agreement nor the Settlement contained in it, nor any act
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`performed or document executed under or in furtherance of the Settlement Agreement or the
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`Settlement: (a) is, or may be deemed to be, or may be used as an admission of, or evidence of,
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`the validity of any Plaintiffs’ Released Claim, or of any wrongdoing or liability of the Mylan
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`Defendants’ Released Parties, or (b) is, or may be deemed to be, or may be used as an admission
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`of, or evidence of, any fault or omission of any of the Mylan Defendants’ Released Parties in any
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`civil, criminal, or administrative proceeding in any court, administrative agency, or other
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`tribunal. The Mylan Defendants’ Released Parties may file the Settlement Agreement and/or this
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`4 One other individual—Lucy Balick—submitted an objection to plaintiffs’ co-lead counsel but did not
`file it with the court. Doc. 2619 at 7, 63–66 (Pritzker Decl. ¶ 10, Ex. S). Ms. Balick advised plaintiffs’
`co-lead counsel that she withdrew her objection, so it is not before the court. See id. at 7 (Pritzker Decl.
`at ¶ 10).
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`Judgment from this action in any other action that may be brought against them in order to
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`support a defense or counterclaim based on principles of res judicata, collateral estoppel, release,
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`good faith settlement, judgment bar, or any theory of claim preclusion or issue preclusion or
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`similar defense. The Mylan Defendants expressly disclaim and deny any wrongdoing or liability
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`whatsoever. The Mylan Defendants contend that the claims and allegations of wrongdoing or
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`liability on their part, individually and collectively, by the Plaintiffs and the Class in the Action
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`and Other Actions are without merit. The Mylan Defendants are settling the Action and Other
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`Actions solely to avoid the burden and expense of further litigation.
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`14. Without affecting the finality of this Judgment in any way, this court retains
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`continuing jurisdiction over: (a) implementation of this Settlement and any award or distribution
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`of the Settlement Fund, including interest earned thereon; (b) disposition of the Settlement Fund;
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`(c) hearing and determining applications for attorneys’ fees, expenses, and service awards to
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`Plaintiff Class Representatives; (d) all parties herein for the purpose of construing, enforcing, and
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`administering the Settlement Agreement; (e) the Class Members for all matters relating to the
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`Action; and (f) other matters related or ancillary to the foregoing. The administration of the
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`Settlement, and the decision of all disputed questions of law and fact with respect to the validity of
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`any claim or right of any person or entity to participate in the distribution of the Net Settlement
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`Fund, shall remain under the authority of this court.
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`15.
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`The court finds that during the course of the Action and Other Actions, the
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`Settling Parties and their respective counsel at all times complied with the applicable rules of
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`procedure, including Federal Rule of Civil Procedure 11.
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`16.
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`In the event that the Settlement does not become effective in accordance with the
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`terms of the Settlement Agreement, or the Effective Date does not occur, then this Judgment will
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`be rendered null and void to the extent provided by and in accordance with the Settlement
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`Agreement and will be vacated and, in such event, all orders entered and releases delivered in
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`connection herewith will be null and void to the extent provided by and in accordance with the
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`Stipulation and the Settlement Fund shall be returned in accordance with the Settlement
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`Agreement.
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`17. Without further order of the court, the Settling Parties will continue to abide by
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`and/or effectuate any and all other terms of the Settlement Agreement not otherwise referenced
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`in this Order. Also, the Settling Parties may agree to reasonable extensions of time to carry out
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`any of the provisions of the Settlement Agreement.
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`18.
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`The court directs immediate entry of this Judgment by the Clerk of the Court.
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`IT IS SO ORDERED.
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`Dated this 11th day of July, 2022, at Kansas City, Kansas.
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`s/ Daniel D. Crabtree
`Daniel D. Crabtree
`United States District Judge
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