Class Certification Denied in AndroGel Multidistrict Litigation

A federal district judge in the Northern District of Georgia denied class certification in a class action brought against Actavis, Inc. alleging that Actavis (formerly known as Watson Pharmaceuticals, Inc.) conspired with Solvay Pharmaceuticals, Inc. to enter into an anti-competitive patent litigation settlement relating to the drug AndroGel in 2006. In denying class certification, the judge ruled that the proposed direct purchaser class did not satisfy Rule 23’s numerosity requirement. The plaintiffs claimed that the proposed class would have comprised 33 members, and the defendants argued that it comprised fewer than 21 members; however the court concluded that the plaintiffs had failed to show that joinder would be impracticable even with their larger proposed class. The court found that ease of identification of the parties and feasibility of service weighed against certification, and while geographic dispersion might potentially weigh in favor of certification, the proposed class consisted of large, sophisticated companies with very large claims who also had litigated similar actions before, such that they had the means and the motivation to join the action if they so chose.