Case 2:16-cv-05073-MSG Document 440 Filed 01/21/21 Page 1 of 14
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`MDL NO. 2445
`13-MD-2445
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`CIV. A. NO. 16-5073
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`IN RE SUBOXONE (BUPRENORPHINE
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`HYDROCHLORIDE AND NALOXONE)
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`ANTITRUST LITIGATION
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`THIS DOCUMENT RELATES TO:,
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`Wisconsin, et al. v. Indivior Inc. et al.
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`Case No. 16-cv-5073
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`__________________________________________
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`STATE OF WISCONSIN
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`By Attorney General Brad D. Schimel, et al.
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`Plaintiffs,
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`v.
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`INDIVIOR INC. f/k/a RECKITT BENCKISER
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`PHARMACEUTICALS, INC., et al.
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`Defendants.
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`____________________________________________:
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`Goldberg, J.
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` January 20, 2021
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`MEMORANDUM
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`Defendant Reckitt Benckiser, Inc. (“Defendant”) 1 manufactures Suboxone, a drug commonly
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`used to combat opioid addiction. Suboxone previously came in tablet form, but in 2010, citing safety
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`concerns, Defendant effectuated a change in the administration of this drug, switching from tablet to
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`sublingual film. Various purchasers/consumers of Suboxone claimed that this switch was anticompetitive
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`and solely designed to maintain Defendant’s market exclusivity—a scheme known as a “product hop.”
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`These claims have resulted in multi-district, antitrust litigation before this Court, as well as the
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`certification of a class of direct purchaser Plaintiffs (“DPPs”).
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`is currently known as Indivior, Inc. In December 2014, Reckitt Benckiser
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`Pharmaceuticals, Inc. was demerged from its prior parent, the Reckitt Benckiser Group PLC, into Indivior
`PLC. Although Indivior is technically the named defendant in this case, the pleadings and many of the
`relevant exhibits use the name “Reckitt.”
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`Case 2:16-cv-05073-MSG Document 440 Filed 01/21/21 Page 2 of 14
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`The DPPs recently sought approval of the notice to be issued to the Class regarding the pending
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`litigation. Defendant opposes that notice and seeks disqualification of one of the DPPs’ named class
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`representatives and its counsel. For the following reasons, I will deny Defendant’s Motion to Disqualify
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`and grant the Motion to Approve the Class Notice.
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`I.
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`RELEVANT FACTUAL BACKGROUND2
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` On September 27, 2019, I certified a class of Direct Purchaser Plaintiffs in this antitrust litigation.
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`In re Suboxone Antitrust Litig., No. 13-md-2445, 2019 WL 4735520 (E.D. Pa. Sept. 27, 2019). The
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`United States Court of Appeals for the Third Circuit affirmed that decision on July 28, 2020. In re
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`Suboxone Antitrust Litig., 967 F.3d 264 (2020).
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`On August 24, 2020, the DPPs sought an order approving the form and manner of notice to the
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`Direct Purchaser Class informing them of the pendency of this class action. Defendant opposed the DPPs’
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`Motion. Along with that opposition, Defendant moved to disqualify named Plaintiff Rochester Drug Co-
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`Operative (“Rochester”) as a class representative based, in part, upon Rochester’s March 22, 2020
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`initiation of Chapter 11 bankruptcy proceeding. Defendant also requested disqualification of Rochester’s
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`counsel, Faruqi & Faruqi, LLP, as class counsel because the firm would no longer be retained by any
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`named class reprseentative.
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`I thereafter directed the parties to submit a joint update regarding the status of Rochester’s
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`bankruptcy proceedings. According to that December 14, 2020 update, Rochester filed its Amended
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`Chapter 11 Plan and accompanying Amended Disclosure Statement on December 8, 2020. The Amended
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`Plan calls for Rochester’s assets, including the “Antitrust Actions” to vest in a Liquidating Trust, and for
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`Rochester to wind up its affairs and liquidate its assets “as expeditiously as reasonably possible.” (Doc.
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`No. 681, at 2.) The Liquidating Trustee is then granted the authority to “commence and prosecute . . .
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`Rather than re-hashing the complicated regulatory background and factual basis of this case, I
`incorporate by reference the history set forth in my prior decision certifying a class for both the DPPs and
`EPPs. In re Suboxone Antitrust Litig., 421 F. Supp. 3d 12 (E.D. Pa. 2019), aff’d, 967 F.3d 264 (3d Cir.
`2020).
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`2
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`Case 2:16-cv-05073-MSG Document 440 Filed 01/21/21 Page 3 of 14
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`Antitrust Actions . . . and, without further supervision or approval of the Bankruptcy Court and free of
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`any restrictions of the Bankruptcy Code or Bankruptcy Rules . . . assign, transfer, compromise, and settle
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`such actions.” (Id.)
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`Under the current schedule, the Bankruptcy Court held a hearing on January 15, 2021, to approve
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`the Amended Disclosure Statement. A Confirmation Hearing is currently scheduled for February 26,
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`2021. (Id. at 3.)
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`II.
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`DEFENDANT’S MOTION TO DISQUALIFY
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`Defendant seeks to disqualify Rochester from serving as a class representative on three grounds.
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`First, Rochester’s ongoing bankruptcy and “Amended Plan of Liquidation” calls for it to assign away its
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`antitrust claims. Consequently, Defendant posits that Rochester is no longer a member of the class it
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`seeks to represent. Second, Defendant asserts that one of Rochester’s creditors is Defendant, and thus as
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`a debtor-in-possession, it owes fiduciary duties to both the DPP class and its creditors, including
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`Defendant. Third, Defendant posits that even before the bankruptcy, Rochester engaged in the criminal
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`distribution of opioid products and currently has a deferred prosecution agreement with the United States
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`Attorney for the Southern District of New York. To the extent that Rochester is disqualified on any or all
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`of these grounds, Defendant also seeks to disqualify Rochester’s counsel unless that counsel is engaged
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`by any of the remaining class members.
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`The DPPs respond that, at present, Rochester remains a debtor-in-possession working to maximize
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`the value of its assets. It further notes that out of Rochester’s $96 million in current liabilities to over
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`2,000 creditors, Rochester owes Defendant only $135,567, making Defendant a minor creditor. Finally,
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`it contends that Rochester’s deferred prosecution agreement has no bearing on Rochester’s adequacy as a
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`class representative or this litigation.
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`A.
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`Rochester’s Ongoing Chapter 11 Bankruptcy
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`Turning first to issues arising out of Rochester’s Chapter 11 bankruptcy, I find no basis on which
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`to disqualify Rochester at this time. As I noted in my class certification decision, “[t]he principal purpose
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`3
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`of the adequacy requirement [of Federal Rule of Civil Procedure 23] is to determine whether the named
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`plaintiffs have the ability and the incentive to vigorously represent the claims of the class.” In re Cmty.
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`Bank of N. Va. Mortg. Lending Practices Litig., 795 F.3d 380, 393 (3d Cir. 2015). This adequacy
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`requirement focuses primarily on whether the class representatives have conflicts of interest with the
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`putative class members. Williams v. Sweet Home Healthcare, LLC, 325 F.R.D. 113, 122 (E.D. Pa. 2018)
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`(citing New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007)). Only a
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`“fundamental” conflict of interest will be sufficient to impact the adequacy analysis. Id. (citing Dewey v.
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`Volkswagen Aktiengesellschaft, 681 F.3d 170, 183 (3d Cir. 2012)). “A fundamental conflict exists where
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`some [class] members claim to have been harmed by the same conduct that benefitted other members of
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`the class.” Dewey, 681 F.3d at 183 (internal quotation marks omitted).
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`Here, the question before me is whether a named plaintiff in bankruptcy can serve as a class
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`representative. The leading case on this issue, and the one on which Defendant relies heavily, is the
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`Seventh Circuit decision in Dechert v. Cadle Company, 333 F.3d 801 (7th Cir. 2003). Defendant posits
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`that Dechert stands for the proposition that a class representative’s bankruptcy, especially one where one
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`of the defendants is a creditor, “creates an intractable conflict of interest between the representative’s
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`fiduciary duties to its creditors and its duties to absent class members.” (Def.’s Mot. to Disqualify 7.)
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`I find that Defendant takes a myopic view of Dechert’s holding. In Dechert, the sole named
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`plaintiff, Judy Oyler, brought a putative class action under the Fair Debt Collection Practices Act. Id. at
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`802. Shortly before filing the suit, Oyler declared bankruptcy under Chapter 7 of the Bankruptcy Code.
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`When the trustee in bankruptcy discovered her pending class action suit, he had himself substituted for
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`Oyler and then asked the district court to certify the suit as a class action with him (the trustee) as the only
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`class representative. Id.
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`The Seventh Circuit de-certified the class, finding that the trustee in bankruptcy was not an
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`adequate class representative. Id. at 802–03. The Court remarked that “[w]hen the named plaintiff is a
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`fiduciary . . . he cannot just ‘go along’ with the class lawyer,” but rather “has a duty to seek to maximize
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`the value of his claim, and this duty may collide with his fiduciary duty as class representative . . . to
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`represent all members of the class equally.” Id. at 803. The court went on to note that such a collision
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`was “especially likely in a case in which the fiduciary is a trustee in bankruptcy, because class-action
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`litigation tends to be protracted yet the Bankruptcy Code requires the trustee to complete his work
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`expeditiously.” Id. at 803 (citing 11 U.S.C. § 704(1)). Ultimately, the Court found that Oyler’s trustee
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`had a fiduciary obligation exclusively to the estate in bankruptcy and to Oyler’s unsecured creditors. Id.
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`at 802. Because Oyler had only a small stake in the class action, the unsecured creditors would derive
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`little to no benefit from a judgment or settlement and, thus, the trustee had a disincentive to fully prosecute
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`the class action. Id. at 803; see also In re Merrill Lynch & Co., Inc. Research Reports Secs. Litig., 375
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`B.R. 719, 727–28 (S.D.N.Y. 2007) (citing Dechert and declining to let trustee in Chapter 7 bankruptcy
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`serve as sole class representative because of conflicts).
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`Notably, however, the Seventh Circuit declined to “lay down a flat rule that a trustee in bankruptcy
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`(or, what is the equivalent, a debtor in possession) can never be a class representative.” Id. at 803. It
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`recognized that “[t]here may be cases in which the expected recovery of individual class members is
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`substantial and only a fiduciary is available to be the class representative.” Id. at 803. The Court further
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`acknowledged that although an actual conflict existed because one of the defendants was one of Oyler’s
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`unsecured creditors, that conflict would be obviated if there were other named plaintiffs in the class action
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`who served as class representatives. Id. at 804.
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`Relying on Dechert, courts have reached different conclusions on this issue depending on the
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`specific circumstances. Recently, the United States District Court for the District of Massachusetts
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`confronted whether the same party at issue here, Rochester, could serve as the sole class representative in
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`a putative antitrust class action against two pharmaceutical companies in light of its ongoing Chapter 11
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`bankruptcy proceedings. In re Intuniv Antitrust Litig., No. 16-12653, 2020 WL 3840901 (D. Mass. July
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`8, 2020). In Intuniv, a class action brought solely by Rochester, was certified by the district court. Id. at
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`*1–2. Subsequently, Rochester filed for the current Chapter 11 bankruptcy, owing over $100 million in
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`total. Id. at *2. Citing to Dechert, the Massachusetts District Court noted that Rochester had conflicting
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`duties: one to maximize the value of its assets and the value of the lawsuit for the benefit of its creditors,
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`and one to fairly and adequately protect the interests of the class. Id. at *5. The District Court observed
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`that the conflict was more pertinent because the defendants were significant creditors of Rochester’s
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`bankruptcy estate. Id. Moreover, the District Court noted that although a Bankruptcy trustee may be an
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`appropriate class representative so long as it is not the only class representative, Rochester was, in fact,
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`the only class representative for the class in that matter. Id. (citing cases). Finally, the District Court
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`remarked that, “there may be cases in which the representative plaintiff’s debt to a defendant would be
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`insignificant enough that it would not undermine the plaintiff’s adequacy, particularly if the representative
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`plaintiff was sharing the role with another plaintiff.” Id. at *6. However, the approximate $2 million
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`owed by Rochester to the defendants, combined with the fact that it was the sole representative plaintiff,
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`convinced the District Court to not allow Rochester to continue as a representative. Id.
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`In In re Zetia (Ezetimibe) Antitrust Litig., No. 18-md-2836, 2020 WL 3446895 (E.D. Va. June
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`18, 2020) report and recommendation adopted by 2020 WL 4917625 (E.D. Va. Aug. 21, 2020), the United
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`States District Court for the Eastern District of Virginia also considered Rochester’s adequacy as a class
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`representative and reached the opposite conclusion. In that matter, Rochester was one of several proposed
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`class representatives for a putative antitrust class action. Id. at *27. By the time the plaintiffs moved for
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`class certification, Rochester had already filed for its current Chapter 11 bankruptcy. Id. at *23. The
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`District Court certified the class, finding that despite the bankruptcy proceedings, Rochester was an
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`adequate class representative. Id. at *27. It held, that “[a]s an initial matter, the Chapter 11 proceeding
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`does not automatically render [Rochester], a debtor-in-possession, an inadequate class representative.”
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`Id. at *26 (citing cases). The Virginia District Court noted that Dechert involved a Chapter 7 liquidation
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`bankruptcy wherein the Chapter 7 trustee owed a duty to “close [the] estate expeditiously,” while a
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`Chapter 11 debtor, like Rochester, did not have a duty of expedience. Id. (noting that “this focus on
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`expedience in the Chapter 7 setting factored into inadequacy findings” in Dechert).3 The Court further
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`stated that while the defendants were creditors of Rochester, their combined claims made up less than five
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`percent of Rochester’s total liabilities. Id. at *26. By comparison, Rochester’s claim in the class action
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`was substantial, seeking $40.5 million of the class’s total alleged damages of nearly $5 billion. Id. Finally,
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`the District Court observed that Rochester was not the only class representative, and it had a large depth
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`of experience in litigating class actions. Id. at *27. Ultimately, the District Court concluded that
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`Rochester’s “strong interest in vindicating its fairly substantial $40.5 million claim; Defendants’
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`comparatively small value of unsecured claims against [Rochester]; and [Rochester’s] proven history of
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`serving as an adequate class representative in similar class actions” made it “an adequate class
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`representative in this case despite its ongoing Chapter 11 bankruptcy proceeding.” Id.
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`After careful consideration of the Zetia, Intuniv, and Dechert cases and the facts before me, I will,
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`for several reasons, decline to disqualify Rochester as a class representative.
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` First, the mere existence of the Chapter 11 bankruptcy proceeding does not render Rochester, as a
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`debtor-in-possession, an inadequate class representative. Dechert, 333 F.3d at 803. “Courts have never
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`held that bankruptcy filing automatically renders an otherwise appropriate class representative inadequate.
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`Indeed, several courts have certified class actions prosecuted by named plaintiffs involved in bankruptcy.”
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`DeStefan v. Frito-Lay, Inc., No. 10-112, 2011 WL 13176229, at *5 (C.D. Cal. June 6, 2011) (citing Wanty
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`v. Messerly & Kramer, P.A., No. 05-350, 2006 WL 2691076, at *1 (E.D. Wis. Sept. 19, 2006) (“The fact
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`that the plaintiffs filed for bankruptcy, therefore, does not demonstrate that their interests are different
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`from those of the class . . .”); Wilborn v. Dun& Bradstreet Corp., 180 F.R.D. 347, 355–57 (N.D. Ill. 1998)
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`(finding a bankruptcy debtor to be an adequate representative)).
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`Defendant argues that Zetia distinguished Dechert on the erroneous assumption that Rochester
`was reorganizing rather than liquidating in its Chapter 11 case. However, regardless of whether a debtor
`seeks to reorganize or liquidate in Chapter 11, there is no duty of expediency on a Chapter 11 debtor.
`Accordingly, Zetia was correct to distinguish Dechert which involved a Chapter 7 bankruptcy proceeding,
`which imposes a duty of expediencyon the Chapter 7 trustee, as opposed to a Chapter 11 bankruptcy,
`which contains no duty of expediency on a debtor. Id. at *26. Nothing in Zetia indicates that the District
`Court focused on the distinction between reorganization and liquidation as a basis for the its decision.
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`Second, it is well established that a conflict used to disqualify a class representative must be more
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`than “merely speculative or hypothetical” and “will not be sufficient to defeat class action unless that
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`conflict is apparent, imminent, and on an issue at the very heart of the suit.” In re Cmty Bank, 795 F.3d
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`at 395 (quoting Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 3:58 (5th ed. 2011)). No
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`such imminent conflict exists here. As of the end of September 2020—when the parties finished briefing
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`the current motion—Defendant believed that the winding up of Rochester’s affairs would occur by year’s
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`end. As of the December 14, 2020 status report from the parties, however, the final Confirmation Hearing
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`in the Bankruptcy Court has been moved to February 26, 2021. These dates remain fluid, rendering
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`Rochester’s final liquidation date unclear. At present, Rochester stands as a debtor-in-possession,
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`pursuant to sections 1107 and 1108 of the Bankruptcy Code, meaning that Rochester remains in possession
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`of its assets and continues to operate its business. Should the need arise, the Liquidating Trustee may
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`later move to substitute itself for Rochester as a named plaintiff. See Gulfstream III Assoc., Inc. v.
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`Gulfstream Aerospace Corp., 995 F.2d 425, 437 (3d Cir. 1993) (holding that antitrust claims can be
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`expressly assigned).
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`Third, unlike the debtor in Dechert, who had filed for Chapter 7 bankruptcy, Rochester has filed
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`for Chapter 11 bankruptcy. As noted in Zetia, this distinction is critical because a Chapter 7 trustee owes
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`a duty to “close [the] estate as expeditiously as is compatible with the best interests of the parties in
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`interest.” 11 U.S.C. § 704(a)(1). This duty of “expeditiousness” can create a conflict between a trustee’s
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`duties as a fiduciary and his/her duties as a class representative “because class-action litigation tends to
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`be protracted yet the Bankruptcy Code requires the trustee to complete his work expeditiously.” Dechert,
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`333 F.3d at 803; accord Merrill Lynch & Co., 375 B.R. at 727 (duty of expeditiousness imposed on
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`Chapter 7 trustee creates a conflict with the duty to litigating a protracted antitrust lawsuit). By contrast,
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`a Chapter 11 bankruptcy—as is the case here—imposes no duty of “expeditiousness” on the debtor. See
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`11 U.S.C. § 1106. Indeed, Rochester’s Amended Plan and Disclosure Statement in Bankruptcy Court
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`grants the Liquidating Trustee the authority to “commence and prosecute . . . Antitrust Actions . . ., and,
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`without further supervision or approval of the Bankruptcy Court and free of any restrictions of the
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`Bankruptcy Code or Bankruptcy Rules . . . assign, transfer, compromise, and settle such actions.” (ECF
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`No. 681, at 2.) It further provides that “the orderly transition to a Liquidating Trust provides a continued
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`working relationship with [Rochester’s] antitrust counsel and helps ensure the claims in the portfolio are
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`effectively prosecuted.” (Id.)
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`Fourth, Rochester’s duty as a debtor-in-possession aligns with its role as a class representative. In
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`Chapter 11 cases where the debtor acts as the debtor-in-possession (i.e., the debtor’s management), the
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`debtor maintains a fiduciary duty to maximize the value of the bankruptcy estate. Official Committee of
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`Unsecure Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 575 (3d
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`Cir. 2003); see also In re IPofA W. Oaks Mall, LP, No. 07-33649, 2007 WL 3223295, at *3 (Bankr. E.D.
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`Va. Oct. 29, 2007) (noting that debtors-in-possession owe a fiduciary duty to “maximize the Debtors’
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`estates for the benefits of the Debtors’ creditors”). Rochester’s bankruptcy estate expressly includes
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`Rochester’s antitrust class action against Defendant and, thus, Rochester must maximize the value of its
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`claims, which necessarily include those of the class members. The Amended Disclosure Statement filed
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`by Rochester estimates that by vesting its claims in a Liquidating Trust—as opposed to a Chapter 7 trustee
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`who would immediately liquidate the remaining assets—Rochester can achieve a 23% higher recovery on
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`its remaining antitrust claims. (ECF No. 681, at 2.)
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`Fifth, while I acknowledge that a conflict exists by virtue of the fact that Defendant is one of
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`Rochester’s creditors, because of the small amount owed to Defendant, I do not find that it is a
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`“fundamental” conflict of interest. For example, in Merrill Lynch, the court found a fundamental conflict
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`where the defendant held over $5 million of the plaintiff estate’s approximately $7.5 million in total
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`unsecured claims. Id. at 723. By contrast, in Zetia, the court found no conflict where the defendants’
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`combined unsecured claims against Rochester totaled $5,175,000, which was only 6% of Rochester’s total
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`unsecured claims, and less than 5% of Rochester’s total liabilities. Zetia, 2020 WL 3446895, at *26.
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`Here, Rochester represents, and Defendant does not dispute, that Defendant’s unsecured claim against
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`Rochester is $135,567, out of a total of $96 million in current liabilities to over 2,000 creditors, i.e. 0.14%
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`of Rochester’s total liabilities. Such a small liability owed to Defendant does not plausibly suggest that
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`Rochester would less than vigorously advocate its substantial antitrust claims against Defendant at the
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`expense of its other creditors and the class members, both of whom stand to benefit from a large antitrust
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`recovery.
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`Sixth, one of the largest concerns in Dechert and Intuniv was that the debtor was the sole class
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`representative. In Dechert, the court found that no conflict would exist “if one of the other class members
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`were the named plaintiff” because the trustee would have no actual control over the class litigation.
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`Dechert, 333 F.3d at 804. In Intuniv, the court commented that “[e]ven those courts that have rejected
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`Dechert’s reasoning have found that a bankruptcy trustee may be an appropriate class representative so
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`long as it is not the only class representative.” Intuniv, 2020 WL 3840901, at *5 (citing In re Rail Freight
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`Surcharge Antitrust Litig., 287 F.R.D. 1, 34 (D.D.C. 2012) (“[O]ther courts have allowed [a] bankruptcy
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`trustee to act as a class representative] where, as here, ‘an additional representative [is designated] to
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`appear as plaintiff along with the Trustee . . . .” (further quotations omitted))). Here, by contrast, Rochester
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`is one of four class representatives. Its lawyers are one of three law firms designated as class counsel and,
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`thus, Rochester will not have full control over the class action.
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`Finally, I must consider the experience that Rochester brings to this case. Rochester has a “proven
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`history of serving as an adequate class representative” in pharmaceutical antitrust cases, and has served
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`in several over the past decade. Zetia, 2020 WL 3446895, at *24, 27 (citing In re Niaspan Antitrust Litig.,
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`397 F. Supp. 3d 668, 680–81 (E.D. Pa. 2019), In re Namenda Direct Purchaser Antitrust Litig., 331 F.
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`Supp. 3d 152, 205 (S.D.N.Y. 2018); Am. Sales Co. v. Pfizer, Inc., No. 14-361, 2017 WL 3669604, at
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`*12–13 (D. Mass. July 28, 2017); Lidoderm Antitrust Litig., No. 14-md-2521, 2017 WL 679367, at *15
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`(N.D. Cal. Feb. 21, 2017); Teva Pharms. USA, Inc. v. Abbott Labs., 252 F.R.D. 213, 226–27 (D. Del.
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`2008)).
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`In short, while I recognize that Rochester’s precarious financial situation is not ideal for a class
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`representative, I nonetheless remain confident that Rochester’s established history of prosecuting antitrust
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`class actions, its strong interest—both as a debtor-in-possession and as class representative—in pursuing
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`the antitrust claims, the involvement of other class representatives, and the relatively minimal conflict
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`resulting from Rochester’s unsecured debt to Defendant weigh against disqualification of Rochester as a
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`class representative. Accordingly, I will deny Defendant’s Motion on this ground.
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`B.
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`Rochester’s Deferred Prosecution Agreement
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`Alternatively, Defendant argues that Rochester should be disqualified because Rochester
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`engaged in criminal conduct regarding the distribution of Suboxone. Rochester has admitted that, from
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`2012 until March 2017, it sold increasingly large amounts of controlled substances to pharmacy customers
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`it knew, should have known, or willfully avoided learning were dispensing those controlled substances
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`for illegitimate purposes. Rochester has formally admitted its conduct in a deferred prosecution agreement
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`(“DPA”) with the United States attorney for the Southern District of New York and conceded that its
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`conduct violated specified criminal statutes. As a result, Defendant argues that Rochester will likely be
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`unwilling to testify at trial, as it did in another class action for which it was a class representative.
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`
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`I disagree and find that, even given the pending bankruptcy proceedings, the criminal action
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`against Rochester does not render it an inadequate class representative. Although credibility and honest
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`dealing in litigation may inform a proposed class representative’s adequacy, the adequacy requirement
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`should “be assessed in light of the class representative’s conduct in this or previous litigation, not based
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`on a subjective evaluation of their personal qualifications as allegedly and tenuously evidenced by their
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`prior criminal record.” In re Intuniv Antitrust Litig., No. 16-12653, 2019 WL 4645502, at *8 (D. Mass.
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`July 8, 2020) (internal quotations omitted). The adequacy inquiry focuses on “improper or questionable
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`conduct arising out of or touching upon the very prosecution of the lawsuit.” Zetia, 2020 WL 3446895,
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`at *23 (quoting Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 364 (E.D.N.Y. 2009) (emphasis added)).
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`The conduct raised in the DPA has no bearing on the antitrust allegations pressed in the current suit. See
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`
`
`11
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`

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`Case 2:16-cv-05073-MSG Document 440 Filed 01/21/21 Page 12 of 14
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`Intuniv, 2020 WL 3840901, at *7 (expressly noting that Rochester’s deferred prosecution agreement has
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`no impact on whether it is an adequate class representative).
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`
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`Defendant does not argue that the subject matter of the DPA is relevant to the present antitrust
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`case. Likewise, it admits that, standing alone, Rochester’s criminal history is not enough to disqualify it
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`as a class representative. Rather, Defendant argues that, along with the bankruptcy, it is additional
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`“baggage” that class members do not need. (Def.’s Mot. to Disqualify 10.) This argument is simply a
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`matter of opinion and does not go to the heart of the adequacy inquiry.
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`
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`For all of the foregoing reasons, I will deny Defendant’s Motion to Disqualify Rochester as a
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`class representative.
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`III.
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`
`
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`DPP’S MOTION TO APPROVE THE FORM AND MANNER OF NOTICE TO THE
`DIRECT PURCHASER CLASS
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`
`I now consider Plaintiff’s Motion to Approve the Form and Manner of Notice to the Direct
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`Purchaser Class. This Notice is to be sent to all potential members of the certified Direct Purchaser Class
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`informing them of the pendency of the class action. The DPPs attach the proposed form of Notice and
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`indicate that the Notice is to be sent by U.S. First Class mail by RG/2 Claims Administration LLC, an
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`experienced claims administrator.
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`
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`Defendant objects to the form of Notice on two grounds: (1) the Notice lists Rochester as a
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`class representative, and (2) the proposed Notice sets out the DPPs’ allegations in great detail, but does
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`not state Defendant’s defenses beyond a generic denial. Having already determined that Rochester is an
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`adequate class representative, I focus solely on Defendant’s second argument—that the proposed Notice
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`fails to state Defendant’s defenses.
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`
`
`
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`Under Federal Rule of Civil Procedure 23(c)(2)(B),
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`For any class certified under Rule 23(b)(3)--or upon ordering notice under
`Rule 23(e)(1) to a class proposed to be certified for purposes of settlement
`under Rule 23(b)(3)--the court must direct to class members the best notice
`that is practicable under the circumstances, including individual notice to
`all members who can be identified through reasonable effort. The notice
`may be by one or more of the following: United States mail, electronic
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`12
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`

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`Case 2:16-cv-05073-MSG Document 440 Filed 01/21/21 Page 13 of 14
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`means, or other appropriate means. The notice must clearly and concisely
`state in plain, easily understood language:
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`(i) the nature of the action;
`(ii) the definition of the class certified;
`(iii) the class claims, issues, or defenses;
`(iv) that a class member may enter an appearance through an attorney if
`the member so desires;
`(v) that the court will exclude from the class any member who requests
`exclusion;
`(vi) the time and manner for requesting exclusion; and
`(vii) the binding effect of a class judgment on members under Rule
`23(c)(3).
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`Fed. R. Civ. P. 23(c)(2)(B).
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`
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`Here, the proposed Notice, under the heading of “What is this lawsuit about?”, states the
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`following:
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`Direct Purchaser Class Plaintiffs allege that Defendant violated federal
`antitrust laws by engaging in unlawful conduct to delay and impair
`competition by generic bioequivalent versions of Suboxone® tablets.
`Direct Purchaser Class Plaintiffs allege that Defendant engaged in an
`unlawful, multifaceted scheme to destroy demand for Suboxone® tablets
`and over to Reckitt’s new Suboxone® film product, in order to force
`Direct Purchaser Class Plaintiffs and members of the Class (defined
`below) to purchase branded Suboxone® film instead of generic
`bioequivalent versions of Suboxone® tablets (which Plaintiffs allege were
`less expensive), once they became available on the market. Direct
`Purchaser Class Plaintiffs also allege that, in order to give itself more time
`to destroy demand for Suboxone® tablets and move sales over to
`Suboxone® film, Defendant delayed the market entry of generic
`Suboxone tablets by manipulating FDA’s Risk Evaluation and Mitigation
`Strategy process. Direct Purchaser Class Plaintiffs allege that they and the
`other members of the Class were injured by being overcharged because of
`losing the opportunity to purchase less expensive, generic bioequivalent
`versions of Suboxone® tablets in place of the more expensive branded
`Suboxone® tablets and film, and by paying higher prices for Suboxone®
`tablets.
`
`Defendant denies these allegations, and denies that any Class member is
`entitled to damages or other relief. Defendant also denies that any of its
`conduct violated any applicable law or regulation. No trial has been held.
`
`
`(E