The US District Court for the Eastern District of Pennsylvania granted defendant GlaxoSmithKline's motion to decertify a class of indirect purchasers in In re Wellbutrin XL Antitrust Litigation, an antitrust class action involving pay-for-delay claims (No. 08-2433, (E.D. Pa. June 30, 2015)). The Third Circuit requires district courts to continually reassess their class rulings in light of case developments. The court found that the plaintiffs could not satisfy the ascertainability requirement of Rule 23(b)(3) of the Federal Rules of Civil Procedure.

The court initially certified a class of indirect purchasers in August 2011. Subsequently, the Third Circuit issued a series of decisions addressing the standard that plaintiffs must meet at the class certification stage to meet Rule 23(b)(3)'s ascertainability requirement. To show that a proposed class is ascertainable, the Third Circuit requires plaintiffs to show that:

(Byrd v. Aaron's Inc., 784 F.3d 154 (3d Cir. 2015)).

GlaxoSmithKline moved to decertify the class arguing that the plaintiffs could not meet this standard.

The court had previously defined the indirect purchaser class as all persons or entities who paid some or all of the retail price for Wellbutrin XL and its generic equivalent during the time periods relevant to the litigation. This class definition encompassed three potential categories of indirect purchasers:

The court agreed with GlaxoSmithKline that it was not possible to ascertain which PBMs and individual consumers were part of the class because:

The court rejected the plaintiffs' argument that PBMs were not potential class members at all. The court found that the terms of PBM contracts with health insurers showed that some PBMs bore financial risk based on the retail price of Wellbutrin XL and its generic equivalents. Specifically, some PBMs offered rebates and price discount guarantees to insurers. If the PBM failed to obtain the guaranteed rebate or discount level from a pharmacy, the PBM had to pay the difference itself. Under these circumstances, a PBM would pay a portion of the retail price of the drugs and would therefore be a potential class member.

The plaintiffs offered to categorically exclude PBMs from the class definition. However, the court rejected this approach because excluding PBMs would mean that the plaintiffs' damages model would potentially include damages suffered by non-class members. The court expressed concern that this would run afoul of Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013), which held that damages must be measurable across an entire putative class.

Finally, the court found that the plaintiffs failed to show how pharmacy purchase records could distinguish in an administratively feasible way between PBMs and individual consumers who were members of the class and those who were not. Among other things, the court found that the relative purchase records were difficult to obtain and would need to be synthesized from thousands of PBMs and retail pharmacies.

The court emphasized that its holding was based on the evidence that the plaintiffs had put forth, which it found was largely conclusory, and that its findings did not necessarily apply to indirect purchaser classes in other pharmaceutical cases.

For a chart providing examples of federal antitrust cases addressing class action certification since the Supreme Court's decision in Comcast Corp. v. Behrend, see Antitrust Class Certification Chart.