In re: Lidoderm Antitrust Litigation, Dr. Hal Singer served as expert for end payor plaintiffs, and Omer Gold managed the case. One of their primary assignments was to quantify the share of the class comprised of Brand Loyalists. Plaintiffs acknowledged that they could not identify Brand Loyalists for exclusion from the end payer plaintiffs (“EPP”) class. According to Defendants, the inability to exclude these class members, however small as a percentage of the total EPP class, rendered the class uncertifiable, because identifying them would create predominantly individualized issues.
Dr. Singer used a two-part method to calculate the size of the Brand Loyalists. First, using monthly sales data from IMS, he “backcasted” the percentage of brand share of total brand and generic drugs after generic entry, moving it backwards to the but-for entry date. Second, he multiplied the backcasted brand share by actual brand quantities to get the potential branded transactions, and then scaled by total class transactions. The estimation was corroborated by using data from Optum Health, which identifies individual consumers and yielded similar results.
Judge William H. Orrick, who presided in Lidoderm, ruled on Dr. Singer’s two part method citing the difference from prior pay for delay cases: “Here, however, the EPPs and their expert have developed a method for approximating the number of Brand Loyalists in the class using common evidence.” See Class Certification Order, In Re Lidoderm, 2017 14-md-02521-WHO (N.D. Cal. Feb. 21, 2017), at 31. He also stated: “at this juncture, Singer has appropriately accounted for Brand Loyalists in his model.”
In September 2018, Judge Orrick approved a settlement ending claims that Teikoku, Endo and Actavis violated antitrust laws by stalling the release of a generic form of Lidoderm, finalizing a $104.7 million deal with end payors and a $166 million deal with direct purchasers.