Court Refuses to Disqualify Class Representative in Suboxone Antitrust Suit

A judge has ruled in favor of the direct purchase plaintiffs (DPPs) after defendant Reckitt Benckiser, Inc. (Reckitt) manufacturer of Suboxone, a drug commonly used in battling opioid addiction, opposed the DPPs’ proposed class notice and moved to disqualify a named class representative and its counsel. Yesterday’s opinion found that despite Rochester Drug Co-Operative’s (Rochester) Chapter 11 bankruptcy proceeding, it was fit to serve as class representative. Further, the court held, the proposed notice met applicable standards while inclusion of the defendant’s tempering language was unwarranted.

The court explained that Reckitt manufactured Suboxone in tablet form until 2010. Then, citing safety concerns, it “effectuated a change in the administration of this drug, switching from tablet to sublingual film.” Purchasers and consumers of Suboxone claimed that the switch was anticompetitive and designed purely to maintain Reckitt’s market exclusivity through a so-called “product hopping” scheme. The allegations spawned the instant multi-district, antitrust litigation.

In the DPPs’ case, the court certified a class in September 2019, which the Third Circuit affirmed ten months later. The DPPs subsequently sought approval of the notice to be issued to the class regarding the pending litigation, which Reckitt opposed at the same time it moved to disqualify Rochester.

In the court’s decision this week, it found that the defendant’s bases for disqualification, namely Rochester’s bankruptcy status, an alleged conflict of interest, and a deferred prosecution agreement that Rochester entered into as a defendant, did not render it ineligible to serve as class representative. Further, the court approved the DPPs’ proposed class notice. The court declined to include Reckitt’s proferred “‘counterbalancing’” statement advising prospective class members of its defenses beyond a generic denial, finding it contrary to statutory requirements and “neither required nor warranted here.”

The DPPs are co-lead by Garwin Gerstein & Fisher LLP, Hagens Berman Sobol Shapiro LLP, and Faruqi & Faruqi LLP. Reckitt is represented by Berger Montague PC and Taus, Cebulash & Landau LLP.