4th Circuit Grants Expedited Briefing in Pharma Antitrust Class Definition Appeal

On Nov. 16, the 4th Circuit Court granted a motion for accelerated briefing in the ongoing Zetia antitrust litigation.

The named plaintiffs of the broader litigation, FWK Holdings LLC, Cesar Castillo Inc. and Rochester Drug Cooperative Inc., were purchasers of the drug Zetia, who alleged they were overcharged after the defendants, Merck & Company and six others, “conspir[ed] to delay generic competition.” The first suit in the broader litigation was filed on Jan. 16, 2018. All related claims that followed were consolidated on June 8, 2018 into multidistrict litigation.

The motion was filed by “direct purchaser” plaintiffs, a subclass of the larger class. It was filed by the underlying defendants after the judge in the district court granted a motion to modify the class definition for the Direct Purchaser Plaintiffs.

On. Nov. 5, the District Court announced it would reschedule the Feb. 23, 2021, trial date because of COVID-19 “and a backlog of criminal jury trials,” the motion said. On Nov. 11, the plaintiffs filed the motion for expedited briefing, arguing that both parties are “amply prepared to proceed without delay, having already fully briefed the same issues to the Magistrate Judge, who provided an extensive Report and Recommendation, and the District Judge, who wrote a thorough Memorandum Order responding to Defendants-Appellants’ objections.”

They proposed an accelerated briefing schedule as follows: The defendants file their opening merits brief Jan. 6, 2021; the plaintiffs file their response merits brief Feb. 5, 2021; the defendants file their reply merits brief Feb. 22, 2021; and at “the earliest possible opportunity” after the briefings, the court schedules oral arguments.

The court granted the motion to accelerate the case processing and set forth the new briefing schedule.

The plaintiffs below are represented by Glasser & Glasser, as well as Hagens Berman. Merck is represented by Gibson, Dunn & Crutcher and Kaufman & Canoles. Glenmark Pharmaceuticals is represented by Vandeventer Black and Morgan, Lewis & Bockius.