THE HOSPITAL AUTHORTIY OF
`METOPOLITAN GOVERNMENT OF
`NASHVILLE AND DAVIDSON
`COUNTY, TENNESSEE, d/b/a
`NASHVILLE GENERAL HOSPITAL
`and AMERICAN FEDERATION OF
`STATE, COUNTY AND MUNICPAL
`EMPLOYEES DISTRICT COUNCIL 37
`HEALTH & SECURITY PLAN,
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`Plaintiffs,
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`
`No. 3:15-cv-01100
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
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`v.
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`MOMENTA PHARMACEUTICALS,
`INC. and SANDOZ INC.,
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`Defendants.
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`This matter comes before the Court on Plaintiffs’ Motion for Final Approval of Settlement.
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`ORDER
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`(Doc. No. 511).
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`The Hospital Authority of Metropolitan Government of Nashville and Davidson County,
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`Tennessee (“Nashville General”) and American Federation of State, County and Municipal
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`Employees District Council 37 Health and Security Plan (“DC 37”) (“Plaintiffs”), on behalf of
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`themselves and of the class certified by this Court on September 20, 2019, as amended on October
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`22, 2019 (the “Class”) (Doc. Nos. 427 and 464), and each of defendants Momenta Pharmaceuticals,
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`Inc. (“Momenta”) and Sandoz Inc. (“Sandoz”) (collectively “Defendants”) have agreed—subject to
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`Court approval following notice to the Class and a hearing—to settle the above-captioned matter
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`(the “Action”) upon the terms set forth in the Momenta Settlement (Doc. No. 486-2 at 10-42) and
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`the Sandoz Settlement (Doc. No. 486-2 at 44-74);
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`On January 3, 2020, the Court ordered notice directed to the Class and scheduled a Fairness
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`Hearing (Doc. No. 488, as modified at Doc. No. 492 on January 9, 2020). The Fairness Hearing
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`was held on May 29, 2020.
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`Having reviewed and considered the two settlement agreements (the “Momenta Settlement”
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`and the “Sandoz Settlement”), the record in this case, the briefs and the supporting exhibits and
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`declarations, and the arguments of counsel, the Court finds and concludes as follows:
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`1.
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`The Court has jurisdiction over the subject matter of the Action, and all parties to
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`the Action.
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`2.
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`All defined terms contained herein, unless otherwise defined, shall have the same
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`meanings as set forth in the Momenta Settlement and Sandoz Settlement.
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`3.
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`Under Federal Rule of Civil Procedure 23(e)(2), after a hearing, the Court finally
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`approves the Settlements and finds the Settlements in all respects fair, reasonable, and adequate to
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`the Class. Specifically:
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`a.
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`The class representatives and counsel have vigorously represented the
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`interests of the Class, having prosecuted this action on behalf of the Class for more than four years.
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`Specifically, the class representatives and counsel briefed two rounds of motions on the pleadings,
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`two rounds of class certification motions, opposed summary judgment, reviewed millions of pages
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`of documents, took and defended dozens of depositions, and litigated the case to the brink of trial.
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`Counsel accomplished this within a demanding schedule that required the utmost commitment of
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`their resources. The advocacy in this case was of the highest caliber. Counsel at all times
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`demonstrated great knowledge about the case and high expertise in the field of antitrust.
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`b.
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`The Settlements arise out of arm’s-length, informed, and non-collusive
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`negotiations between counsel for Plaintiffs and the Defendants. Specifically, during contentious,
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`hard-fought litigation, the parties engaged a neutral, The Honorable Edward Infante (ret.), to
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`conduct mediation. The parties met in person on two separate days. Following an agreement in
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`principle on basic terms, the parties negotiated the details of the agreements for several more
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`weeks.
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`c.
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`The Settlements together create a non-reversionary, all-cash settlement fund
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`of $120 million. This amounts to more than half of Plaintiffs’ claimed single damages. The Court
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`finds this is a more than adequate, indeed extraordinary result, considering: (i) the costs, risks, and
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`delay of trial and appeal, particularly in light of the complex nature of Plaintiffs’ case and the
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`multiple potential defenses available at trial; (ii) the effectiveness and straightforwardness of the
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`proposed claims process; (iii) the reasonableness of the request for an award of attorneys’ fees and
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`costs and service awards for the class representatives; and (iv) that the only agreements identified
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`under Rule 23(e)(3) consist of supplemental agreements that set forth confidential terms of
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`termination in the event exclusions reached a certain threshold (there were no exclusions), and
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`these agreements may appropriately be kept confidential and not filed on the public docket.
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`d.
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`This Court finds that Plaintiffs’ proposed distribution plan is fair, reasonable,
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`and adequate. The proposed plan of distribution treats class members equitably relative to each
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`other. It divides the settlement among four categories of purchases (Retail-Brand, Retail-Generic,
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`Non-Retail-Brand, and Non-Retail-Generic) based on each category’s share of classwide damages
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`as calculated by the Plaintiffs’ expert, Dr. Russell Lamb. Eligible claimants will be paid
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`proportionally based on net dollar value of qualifying purchases in each category.
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`4.
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`The Settlements are also fair, reasonable, and adequate considering the factors
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`enumerated by the Sixth Circuit: (1) the risk of fraud or collusion; (2) the complexity, expense, and
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`likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the
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`likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6)
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`the reaction of absent class members; and (7) the public interest.
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`a.
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`The Settlements were reached after years of contested litigation, including
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`certification of the Class, and multiple mediation efforts that concluded only shortly before trial.
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`There is no risk of fraud or collusion.
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`b.
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`This case was extraordinarily complex and expensive, and further litigation
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`would only be more so. Indirect purchaser class actions are complex, and Plaintiffs’ claims in this
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`case included several elements unprecedented or unusual in a class case, including an antitrust
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`violation predicated on deception of a quasi-governmental standard-setting organization, and a
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`theory of damages predicated on delay of a second generic entrant.
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`c.
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`The parties engaged in full discovery, with the case ready for trial when the
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`Settlements were reached.
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`d.
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`The Class faced significant risk, on both liability and damages, at trial and
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`on appeal.
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`Settlements.
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`e.
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`The Class Representatives and Class Counsel unreservedly support the
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`f.
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`The reaction of absent class members weighs in favor of approval, as no class
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`members objected.
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`g.
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`The public interest favors settlement of complex litigation and class actions,
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`particularly where settlement ensures effective enforcement of the antitrust laws and deterrence of
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`anti-competitive conduct in the marketplace.
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`5.
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`The Court has certified the Class, which is defined as follows:
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`Hospitals, third-party payors, and people without insurance who indirectly
`purchased, paid for, and/or reimbursed some or all of the purchase price for, generic
`enoxaparin or Lovenox®, in Arizona, Arkansas, California, District of Columbia,
`Florida, Hawaii, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan,
`Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire,
`New Mexico, New York, North Carolina, North Dakota, Oregon, South Dakota,
`Tennessee, Utah, Vermont, West Virginia, and Wisconsin, from September 21,
`2011, through September 30, 2015 (the “Class Period”), for the purpose of personal
`consumption by themselves, their families, or their members, employees, insureds,
`participants, patients, beneficiaries or anyone else.
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`With respect to third-party payors and people without insurance, the Class only
`includes those, described above, who purchased, paid for, and/or reimbursed some
`or all of the purchase price for, generic enoxaparin or Lovenox® from a pharmacy.
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`Excluded from the Class are:
`a)
`Defendants, their officers, directors, management, employees, subsidiaries, and
`affiliates;
`Federal and state governmental agencies except for cities, towns, municipalities,
`counties or other municipal government entities, if otherwise qualified;
`Payors that received 100% reimbursement on all transactions, such as fully insured
`health plans (i.e., plans that purchased insurance covering 100% of their
`reimbursement obligation to members);
`Third-party payors and people without insurance who purchased, or paid or
`reimbursed only for branded Lovenox®, and not generic enoxaparin, from a
`pharmacy or other retail outlet; and
`Judges assigned to this case and any members of their immediate families.
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`Class Notice was accomplished as set forth in the Settlement Agreements and in the
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`order directing notice to the Class. Notice constituted the best notice practical under the
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`circumstances, and met the requirements of Rule 23(c)(2) and (e)(1) and due process. Hospital and
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`third-party payor members of the Class received notice through a direct mail campaign. All class
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`members received notice through a print and online publication campaign including millions of
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`banner ads and paid search result placement. The Class had access to an online website that
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`included information about the case including the deadline to object, the claim filing deadline, the
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`date and time of the Final Approval Hearing, and Class Counsel’s request for attorneys’ fees and
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`b)
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`c)
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`d)
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`e)
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`6.
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`costs and incentive awards. The website also provided access to the Notice and Claim Forms and
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`the proposed Distribution Plan, and allowed Class members to submit claims online.
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`7.
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`The notice documents and website fairly, accurately, and reasonably informed
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`members of the Class of (1) appropriate information about the nature of this litigation and the
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`essential terms of the Settlement Agreements; (2) appropriate information about, and means for
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`obtaining, additional information regarding this litigation and the Settlement Agreements; (3)
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`appropriate information about, and means for obtaining and submitting, a Claim Form; (4)
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`appropriation information about the right of members of the Class to object to the terms of the
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`Settlement Agreement, or object to Class Counsel’s request for an award of attorney fees and costs
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`and service awards, and the procedures to do so; and (5) appropriate information about the
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`consequences of failing to submit a Claim Form or failing to comply with the procedures and
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`deadline for objecting to the Settlements. No Class Members objected to the Settlements.
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`For all of the above reasons, Plaintiffs’ Motion for Final Approval of Settlements (Doc. No.
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`511) is GRANTED.
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`IT IS SO ORDERED.
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`____________________________________
`WAVERLY D. CRENSHAW, JR.
`CHIEF UNITED STATES DISTRICT JUDGE
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