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In re Lorazepam & Clorazepate Antitrust Litigation

Petition for interlocutory review of class certification denied; petitioner failed to demonstrate that certification of class would force petitioner to settle; petitioner's challenge presented no unsettled question of fundamental importance to law of class actions; petitioner made no showing that certification was manifestly erroneous.

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Argued March 12, 2002

This appeal presents for the first time in this circuit the threshold question of when interlocutory review of a class certification decision is appropriate under Federal Rule of Civil Procedure 23(f). We take the opportunity to offer general guidance on the scope of our discretion under Rule 23(f) in considering the petition for Rule 23(f) review by Mylan Laboratories, Inc., Mylan Pharmaceuticals, Inc., UDL Laboratories, Inc., Profarmaco S.r.l., Cambrex Corporation, and GYMA Laboratories of America, Inc. (collectively “Mylan”), of the district court’s certification of a class of direct purchasers of the generic anti-anxiety drugs lorazepam and clorazepate from Mylan or UDL. Mylan contends that the district court erred in ruling that despite the Federal Trade Commission’s (“FTC”) procurement of a settlement against Mylan on behalf of a class of indirect purchasers, a class of direct purchasers had antitrust standing under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), and, in the alternative that the certified class consists of both direct and indirect purchasers in violation of Illinois Brick. We conclude that interlocutory appeal pursuant to Rule 23(f) typically is appropriate in three circumstances: (1) when there is a death-knell situation for either the plaintiff or defendant that is independent of the merits of the underlying claims, coupled with a class certification decision by the district court that is questionable, taking into account the district court’s discretion over class certification; (2) when the certification decision presents an unsettled and fundamental issue of law relating to class actions, important both to the specific litigation and generally, that is likely to evade end-of-the-case review; and (3) when the district court’s class certification decision is manifestly erroneous. Applying these standards we deny Mylan’s petition for interlocutory review.

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