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BOSTON — A Massachusetts federal judge recently removed class counsel Donald Haviland from a case against several pharmaceutical companies for allegedly publishing false inflated average wholesale prices of pharmaceutical drugs reimbursed by Medicare. In a Jan. 3 order, Judge Patti B. Saris removed Haviland, managing partner of the Philadelphia-based Haviland Law Firm, from his role as co-lead counsel in the drug pricing case. In re: Pharmaceutical Industry Average Wholesale Price Litigation, M.D.L. No. 1456, No. 01-12257 (D. Mass). Haviland was appointed to the class counsel role in August 2007, but according to Saris’ order, the Massachusetts federal court later learned that he was handling related average wholesale pricing cases in state court in New Jersey and seeking nationwide class certification. International Union of Operating Engineers, Local No. 68 Welfare Fund v. AstraZeneca, No. 03-3230 (Monmouth Co., N.J., Super Ct.). According to Saris’ order, Seattle-headquartered Hagens Berman Sobol Shapiro objected to Haviland’s role in the two case tracks because the New Jersey class would compete with the Massachusetts classes “against a number of overlapping defendants based on virtually identical claims.” “I find that Mr. Haviland made statements in the New Jersey court which were inconsistent with the statements made by co-counsel to this court,” Saris wrote. “What is crystal clear is that Mr. Haviland is seeking a nationwide class in New Jersey at the same time he was seeking to represent a nationwide class here without disclosing the conflict of interest to this Court.” A different picture Haviland, who represented the consumer individual class representatives in the case, said the sealed record submitted to the court paints a very different picture of events than the court’s public order. “We respect the court’s decision but we respectfully submit that the underseal record paints a different picture of some of the facts [Saris] found in her order,” Haviland said. “We hope in the fullness of time that will be revealed.” Haviland also said that contrary to the public record, Hagens Berman firm did know about Haviland’s efforts to seek a nationwide class in the New Jersey case. “They knew about it years before and were directly involved in discussions of nationwide class certifications,” Haviland said. Steve Berman, a Seattle Hagens Berman partner, said Haviland’s claim that his firm knew what has happening in New Jersey is based on a passing reference a Haviland associate supposedly made at a hearing. “The court didn’t pick up on it and neither did we,” Berman said. “It wasn’t central to what was going on in court that day. He raised that argument and [Saris} rejected it." Berman also said Haviland's multiple hearings and briefs on this issue were "more than a fair and full opportunity to put anything in the record." "Whatever else he thinks was in the record was unconvincing [to Saris],” Berman said.

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