A federal court authorized this notice. It is not a solicitation from a lawyer. You are not being sued.

Transcription

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS If you bought (a) Solodyn or generic Solodyn (extendedrelease minocycline hydrochloride tablets) directly from Medicis Pharmaceutical Corp., Impax Laboratories, Inc., and/or other manufacturers in the 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg Strengths between July 23, 2009 and November 25, 2012 and/or (b) brand Solodyn tablets directly from Medicis Pharmaceutical Corp. or its affiliates in the 55mg, 65mg, 80mg, 105mg, and/or 115mg Strengths between November 26, 2012 and November 30, 2015, you could get a payment from two separate class action settlements. A federal court authorized this notice. It is not a solicitation from a lawyer. You are not being sued. This notice has important information if you purchased (a) Solodyn or generic Solodyn (extended-release minocycline hydrochloride tablets) directly from Medicis Pharmaceutical Corp., Impax Laboratories, Inc., and/or other manufacturers in the 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg Strengths between July 23, 2009 and November 25, 2012 and/or (b) brand Solodyn tablets directly from Medicis Pharmaceutical Corp. or its affiliates in the 55mg, 65mg, 80mg, 105mg, and/or 115mg Strengths between November 26, 2012 and November 30, It provides an explanation of the proposed settlements and your rights and options in this case. You were previously notified on or about December 26, 2017 that the Court had certified a class action lawsuit brought by direct purchasers of brand and generic Solodyn against Medicis Pharmaceutical Corp. ( Medicis ) and Impax Laboratories, Inc. ( Impax ). You were also previously notified on or about April 28, 2017 of two prior separate settlements with two other former defendants Sandoz Inc. ( Sandoz ) and Lupin Limited and Lupin Pharmaceuticals, Inc. (collectively, Lupin ). 1

2 The purpose of this notice is to inform you that separate settlements have been reached with the two remaining defendants Medicis and Impax (the Settlements ). As of February 22, 2018, a settlement was reached with Medicis that will provide $35 million to the Class in order to resolve the Class s claims against Medicis. As of March 9, 2018, a settlement was reached with Impax that will provide $35 million, plus other potential contingent consideration from Impax, to resolve the Class s claims against Impax. Together, these Settlements will provide a total of $70 million, plus potential contingent consideration, to the Class ( Settlement Fund ). On October 16, 2017, Judge Denise J. Casper of the United States District Court for the District of Massachusetts allowed this antitrust lawsuit to proceed as a class action, and certified the following class (the Class ): All persons or entities in the United States and its territories, including Puerto Rico, who purchased (a) 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg brand or generic Solodyn tablets directly from any Defendant or other manufacturer at any time during the period July 23, 2009 through and including November 25, 2012 and/or (b) 55mg, 65mg, 80mg, 105mg, and/or 115mg brand Solodyn tablets directly from Medicis at any time from November 26, 2012 until November 30, Excluded from the Class are Defendants, and their officers, directors, management, employees, subsidiaries, or affiliates, and all federal governmental entities. The Court has scheduled a hearing to decide upon Final Approval of the Settlements, the plan for allocating the Settlement Fund to Class Members (summarized in Question 6 below), and Class Counsel s request for reimbursement of costs, service awards, and payment of attorneys fees out of the Settlement Fund. That hearing is scheduled for July 18, 2018 at 2:00 p.m. before U.S. District Court Judge Denise J. Casper in Courtroom 11 at the United States District Court for the District of Massachusetts, United States Courthouse, One Courthouse Way, Boston, Massachusetts YOUR LEGAL RIGHTS ARE AFFECTED WHETHER YOU ACT OR DO NOT ACT, SO PLEASE READ THIS NOTICE CAREFULLY. 2

3 YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENTS UPON RECEIPT OF THE CLAIM FORM, PROMPTLY COMPLETE AND RETURN IT OBJECT TO THE SETTLEMENTS GET MORE INFORMATION You do not need to do anything now to retain your right to seek a share of the Settlements. If the Court grants Final Approval of the Settlements and you are a Class Member, you will need to complete, sign, and return a Claim Form (which will be mailed to you) to obtain your pro rata share of the Net Settlement Fund. You may object to either or both of these separate Settlements. If you do so, you may (as discussed below) write to the Court and Class Counsel about why you do not like either or both of the Settlements and ask to speak to the Court about the fairness of the Settlements. If you would like to obtain more information about the Lawsuit, you can send questions to the lawyers identified in this notice. These rights and options, and the deadlines to exercise them, are explained in this Notice. WHAT THIS NOTICE CONTAINS BASIC INFORMATION... PAGES Why did I get this notice? 2. What is this lawsuit about? 3. Why is this lawsuit a class action? 4. Why are there settlements with Medicis and Impax? WHO CAN PARTICIPATE IN THE SETTLEMENTS... PAGES Am I part of the Class? THE SETTLEMENTS BENEFITS WHAT YOU GET... PAGE 8 6. What does the Settlements provide? 7. How much will my payment be? HOW TO GET A PAYMENT SUBMITTING A CLAIM FORM... PAGE 9 8. How can I get a payment? 3

4 9. When would I get my payment? 10. What am I giving up to get a payment? THE LAWYERS REPRESENTING YOU... PAGE Do I have a lawyer in this case? 12. Should I get my own lawyer? 13. How will the lawyers be paid? OBJECTING TO THE SETTLEMENTS... PAGE How do I tell the Court that I don t like the Settlements? THE COURT S FINAL FAIRNESS HEARING... PAGE When and where will the Court decide whether to approve the Settlements? 16. Do I have to come to the hearing? 17. May I speak at the hearing? IF YOU DO NOTHING... PAGE What happens if I do nothing at all? GETTING MORE INFORMATION... PAGE How do I get more information? 1. Why did I get this notice? BASIC INFORMATION You received this notice because according to available records you may have purchased (a) Solodyn or generic Solodyn (extended-release minocycline hydrochloride tablets) directly from Medicis Pharmaceutical Corp., Impax Laboratories, Inc., and/or other manufacturers in the 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg Strengths between July 23, 2009 and November 25, 2012 and/or (b) brand Solodyn tablets directly from Medicis Pharmaceutical Corp. or its affiliates in the 55mg, 65mg, 80mg, 105mg, and/or 115mg Strengths between November 26, 2012 and November 30, 2015, and therefore you may be a member of the Direct Purchaser Class certified by the Court. This notice explains the Lawsuit, the Settlement with Medicis, the Settlement with Impax, your legal rights, what benefits are available, and eligibility for those benefits. Note that you may have received this notice in error; simply receiving this notice does not mean you are definitely a Class Member. You may confirm that you are a Class Member by reviewing the criteria set forth in Question 5 below. You may also call or write to the lawyers in this case at the telephone numbers or addresses listed in Question 11 below. 2. What is this lawsuit about? Plaintiffs filed lawsuits alleging that Impax, Sandoz, and Lupin entered agreements with Medicis not to compete for the sale of extended-release minocycline hydrochloride tablets, 4

5 i.e., Solodyn and its generic equivalents, in violation of the Sherman Act, 15 U.S.C. 1 and 2, and that Plaintiffs and Class Members incurred damages as a result. Plaintiffs allege that Defendants conduct reduced competition from less expensive generic versions of Solodyn. Plaintiffs further allege that they and the other members of the Class were injured by losing the opportunity to purchase less expensive, generic versions of Solodyn. A copy of the Direct Purchaser Plaintiffs Second Amended Consolidated Class Action Complaint and Jury Demand filed on August 9, 2016 (the Complaint ) is available at Defendants, including Medicis and Impax, deny all of these allegations. Defendants, including Medicis and Impax, also respond that none of their conduct violated any applicable law or regulation, and deny that any Class Member is entitled to damages or other relief. The Settlements are not an admission of wrongdoing by Medicis or Impax. Plaintiffs previously settled their claims against Sandoz and Lupin. More information about the settlements with Sandoz and Lupin is available at You may have received a notice concerning those settlements on or after April 28, Following the completion of fact discovery and expert discovery, class certification and summary judgment motions, and extensive negotiations utilizing a private mediator, the class representatives, on behalf of the Class, entered into the separate Settlements with Medicis and Impax. The terms of the Settlements, which are subject to final approval by the Court, are set forth in a written Settlement Agreement with Medicis dated as of February 22, 2018 and a written Settlement Agreement with Impax dated as of March 9, 2018 (the Settlement Agreements ). The Settlement Agreement with Medicis provides that Medicis will pay $35 million in cash to the Class in exchange for a release of all claims against the Released Parties (as defined in the Medicis Settlement Agreement) related to the conduct alleged in the Complaint. The Settlement Agreement with Impax provides that Impax will pay $35 million in cash, plus other potential contingent consideration from Impax, to the Class in exchange for a release of all claims against the Released Parties (as defined in the Impax Settlement Agreement) related to the conduct alleged in the Complaint. The Settlement Agreements are available for review at The Settlement Agreements contain the full text of the release for your review. THE COURT HAS NOT DECIDED THAT ANY OF THE DEFENDANTS, INCLUDING MEDICIS AND IMPAX, VIOLATED ANY LAWS. THIS NOTICE IS NOT AN EXPRESSION OF ANY OPINION BY THE COURT AS TO THE MERITS OF PLAINTIFFS CLAIMS OR THE DEFENSES ASSERTED BY THE DEFENDANTS. The class action is known as In re Solodyn Antitrust Litigation, (D. Mass.), MDL No. 14- md-2503-djc. Judge Denise J. Casper of the United States District Court for the District of Massachusetts is overseeing this class action. 5

6 3. Why is this lawsuit a class action? In a class action, one or more entities called Class Representatives sue on behalf of other entities with similar claims. In this case, the Class Representatives are Ahold USA, Inc. ( Ahold ) and Rochester Drug Co-Operative, Inc. ( RDC ). The Class Representatives and the entities on whose behalf they have sued together constitute the Class or Class Members. They are also called the Plaintiffs. Their attorneys are called Class Counsel. The companies that have been sued are called the Defendants. In this case, the Defendants are or were (a) Medicis Pharmaceutical Corp., (b) Impax Laboratories, Inc., (c) Sandoz Inc., and (d) Lupin Limited and Lupin Pharmaceuticals, Inc. In a class action lawsuit, one court resolves the issues for everyone in the class. The Court, by order dated October 16, 2017, certified a Class in this case for purposes of litigation. A copy of the Court s order may be found at The Court determined that this lawsuit can be a class action because it meets the requirements of Federal Rule of Civil Procedure 23, which governs class actions in federal courts. Specifically, the Court found that: The number of Class Members is so numerous that joining them all into one suit is impractical. Members of the Class share common legal or factual issues relating to the claims in this case. The claims of the Class Representatives are typical of the claims of the rest of the Class. The Class Representatives and the lawyers representing the class will fairly and adequately protect the Class s interests. The common legal and factual questions predominate over any questions affecting only individual members of the Class, and this class action will be more efficient than individual lawsuits. The common legal and factual questions include: o o o Whether the conduct challenged as anticompetitive constituted a conspiracy in violation of Section 1 of the Sherman Act 15 U.S.C. 1; Whether the conduct challenged substantially affected interstate commerce and caused antitrust injury and injury-in-fact to the class, in the nature of overcharges paid as a result of the higher prices paid directly by Class Members for extended-release minocycline hydrochloride tablets; and The amount of overcharge damages, if any, owed to the Class in the aggregate under Section 4 of the Clayton Act, 15 U.S.C

7 4. Why are there settlements with Medicis and Impax? The Court has not decided which side is correct or if any laws were violated. Instead, Medicis and Impax and the Class agreed to settle the case and avoid the cost and risk of trial and possible appeals. These Settlements are the product of extensive negotiations between Class Counsel and Medicis and Impax, with the assistance of an experienced private mediator and after lengthy, hard-fought litigation. At the time the Settlements were reached, discovery was complete, expert reports had been exchanged and experts examined, class certification, summary judgment, and expert exclusion motions had been decided, and the parties were preparing for a trial. After thoroughly investigating the complex factual, legal, and economic issues involved, Class Counsel negotiated with Medicis s Counsel and Impax s Counsel separately, reaching two settlements totaling $70 million in cash, plus other potential contingent consideration from Impax, to resolve the claims Plaintiffs brought against Medicis and Impax. As a result of the Settlements, Class Members will be guaranteed compensation without undue delay. The class representatives and the lawyers representing them believe that the Settlement Fund in exchange for a release of claims against Medicis and Impax is fair, adequate, and reasonable, and in the best interests of the Class. WHO CAN PARTICIPATE IN THE SETTLEMENTS To see if you will get money from the Settlements, you first have to determine whether you are a member of the Class. 5. Am I part of the Class? You are in the Class if you are an entity in the United States that purchased (a) Solodyn or generic Solodyn (extended-release minocycline hydrochloride tablets) in the 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg strengths directly from Medicis, Impax, and/or other manufacturers, between July 23, 2009 until November 25, 2012 and/or (b) 55mg, 65mg, 80mg, 105mg, and/or 115mg brand Solodyn tablets directly from Medicis between November 26, 2012 and November 30, Excluded from the class are Defendants, their officers, directors, management, employees, subsidiaries, or affiliates, and all federal governmental agencies. Also excluded from the Class are retailer plaintiffs that have opted out of the Class and have pursued claims in this Action independently and separately from the Class. They are: Walgreen Co., The Kroger Co., Safeway Inc., HEB Grocery Company LP, Albertsons LLC, Rite Aid Corporation, Rite Aid Hdqtrs. Corp., and CVS Pharmacy, Inc. 7

8 If you are not sure whether you are included, you may call or write to the lawyers in this case at the telephone numbers or addresses listed in Question 11 below. THE SETTLEMENTS BENEFITS WHAT YOU GET 6. What do the Settlements provide? As explained above, Medicis and Impax have separately agreed to pay amounts that will total $70 million in cash, plus other potential contingent consideration from Impax, into a Settlement Fund (which will include any interest that accrues) for the benefit of the Class. Class Counsel will apply to the Court for an award of attorneys fees (of up to one-third of the Settlement Fund net of expenses, plus a proportionate share of the interest earned on the Settlement Fund), expenses, service awards to the Class Representatives of $90,000 each for their services to the Class, and payment for costs of administering the Settlements from the Settlement Fund. The remainder (the Net Settlement Fund ) will be divided on a pro rata basis based on each Class Member s unit purchases of brand and generic Solodyn made directly from the pharmaceutical manufacturers and distributed to Class Members who return valid and timely Claim Forms, subject to approval by the Court. With Court approval, the proposed plan of allocation would allocate the Net Settlement Fund based on each Class Member s pro rata weighted share of combined net brand and generic Solodyn unit purchases, with brand units weighted more than generic unit purchases. More information about the proposed plan of allocation and any related Court orders will be posted at In exchange, Medicis and Impax will be released and discharged from all antitrust and other similar claims relating to Solodyn. The full text of the release is included in the Settlement Agreements, available at 7. How much will my payment be? Your share of the Net Settlement Fund will depend on the amount of Solodyn and/or generic Solodyn you purchased directly from manufacturers. Generally, those who purchased more Solodyn and/or generic Solodyn during that period will get a higher recovery. Your share of the Net Settlement Fund will also depend on the number of valid claim forms that Class Members submit. If fewer than 100% of the Class Members send in a claim form, you could get a larger pro rata share. 8

9 HOW TO GET A PAYMENT SUBMITTING A CLAIM FORM 8. How can I get a payment? If the Settlements are approved by the Court, all Class Members will receive a Claim Form to request a pro rata share of the Net Settlement Fund. Transactional sales data from the Defendants and/or other generic manufacturers of Solodyn will be used to make the calculations. You may be asked to verify the accuracy of the information in the Claim Form and to sign and return the form according to the directions on the form. Class Members will be given the opportunity to provide data or information to supplement or correct this information. 9. When would I get my payment? Payment is conditioned on several matters, including the Court s approval of the Settlements and upon any appeal being final (and no longer subject to any appeals to any court). Upon satisfaction of various conditions, the Net Settlement Fund will be allocated to Class Members as soon as possible after final approval has been obtained for the Settlements. The allocation will be on a pro rata basis pursuant to a plan of allocation that will be approved by the Court. If there is an appeal of the Settlements final approval, the appeal could take several years to resolve. Any accrued interest on the Settlement Fund will be included, pro rata, in the amount paid to the Class Members. The Settlement Agreements may be terminated if the Court does not approve the Settlements or materially modifies the Settlements. If either Settlement Agreement is terminated because the Court determines that Settlement not to be fair, adequate, and reasonable, the lawsuit will proceed against that settling Defendant as if that Settlement had not been reached. The full text of the termination provisions are in the Settlement Agreements, available at What am I giving up to get payment? Class Members submitting claims will be required to execute a release that releases any right to sue, or be part of any other lawsuit against Medicis and Impax over the Released Claims. The Released Claims are described fully in the Settlement Agreements (available at and will also be included as part of the Claim Form to be mailed to each Class Member upon Final Approval of the Settlements by the Court. 9

10 THE LAWYERS REPRESENTING YOU 11. Do I have a lawyer in this case? The lawyers listed below have been appointed by the Court as Co-Lead Class Counsel. They are experienced in handling similar cases against other companies. The lawyers are: Thomas M. Sobol Lauren Guth Barnes Hagens Berman Sobol Shapiro LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA Tel: (617) Fax: (617) David F. Sorensen Andrew C. Curley Caitlin G. Coslett Berger & Montague, P.C Locust Street Philadelphia, PA Tel: (215) Fax: (215) Should I get my own lawyer? You do not need to hire your own lawyer because Class Counsel are working on your behalf. However, if you wish to do so, you may retain your own lawyer at your own expense. 13. How will the lawyers be paid? You will not have to pay anything for these lawyers. If the Court approves the Settlements, Class Counsel will apply to the Court for an award of attorneys fees (of up to one-third of the Settlement Fund net of expenses), plus expenses. Class Counsel also will apply for service awards to the Class Representatives for their services to the Class of $90,000 each. If the Court grants Class Counsel s requests, these amounts would be deducted from the Settlement Fund. You will not have to pay these fees, costs and expenses out of your own pocket. Class Counsel s application for an award of attorneys fees, reimbursement of expenses and service awards to the Class Representatives will be filed with the Court and made available for download and/or viewing on or before May 14, 2018 on as well as at the office of the Clerk of the United States District Court for the District of Massachusetts, United States Courthouse, One Courthouse Way, Boston, MA 02210, during normal business hours. OBJECTING TO THE SETTLEMENTS You can tell the Court that you do not agree with the either or both of the Settlements or some part of them, and/or the application for attorneys fees, costs, and expenses, and/or the service awards. 10

11 14. How do I tell the Court that I do not like either or both of the Settlements? If you are a Class Member, you may tell the Court that you object to (disagree with) all or any part of either or both of the Settlements, and/or the application for attorneys fees, costs and expenses, and/or the requested service awards to the Class Representatives. You must identify to which Settlement(s) you are objecting and provide reasons or otherwise explain the basis for any objection you raise. The Court will consider your objection(s) in determining whether to grant Final Approval to the Settlements. To object, you must send a letter to the Court referencing the Direct Purchaser Class Action in In re Solodyn Antitrust Litigation, MDL No. 14-md-2503-DJC. Be sure to include your name, address, telephone number, and your signature. Mail the objection to the Clerk of the United States District Court for the District of Massachusetts, United States Courthouse, One Courthouse Way, Boston, MA 02210, with copies to all of the following: Class Counsel Thomas M. Sobol Lauren Guth Barnes Hagens Berman Sobol Shapiro LLP 55 Cambridge Parkway, Suite 301 Cambridge, MA Tel: (617) Fax: (617) David F. Sorensen Andrew C. Curley Caitlin G. Coslett Berger & Montague, P.C Locust Street Philadelphia, PA Tel: (215) Fax: (215) Counsel for Medicis Steven C. Sunshine Tara L. Reinhart Julia K. York Sean M. Tepe 1440 New York Ave. NW Washington DC, Tel: (202) Counsel for Impax J. Douglas Baldridge Lisa Jose Fales Danielle Foley Kristen M. Koger Venable LLP 600 Massachusetts Avenue, NW Washington, DC Tel: (202) Do not call the Court or the Judge s office about your objection(s). Your objection must be postmarked no later than May 28,

12 THE COURT S FINAL FAIRNESS HEARING The Court will hold a hearing to decide whether to approve the Settlements. You may attend and you may ask to speak, but you do not have to. 15. When and where will the Court decide whether to approve the Settlements? The Court will hold a Fairness Hearing at 2:00 p.m. on July 18, 2018, in Courtroom 11 at the United States District Court for the District of Massachusetts, United States Courthouse, One Courthouse Way, Boston, MA At this hearing, the Court will consider whether the Settlements are fair, reasonable and adequate. If there are objections, the Court will consider them. After the hearing, the Court will decide whether to approve the Settlements. We do not know how long the decision will take. IMPORTANT: The time and date of this hearing may change without additional mailed notice. For updated information on the hearing, visit Do I have to come to the hearing? No. Class Counsel will answer questions that Judge Casper may have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it. So long as you mail your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary. Moreover, attendance is not necessary to receive a pro rata share of the Net Settlement Fund. 17. May I speak at the hearing? You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it is your Notice of Intention to Appear in In re Solodyn Antitrust Litigation, Case MDL No. 14-md-2503-DJC. Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to Appear must be postmarked no later than May 28, 2018, and must be sent to the Clerk of the Court, Class Counsel and Medicis s and Impax s counsel, at the addresses set forth in the response to Question 14. IF YOU DO NOTHING 18. What happens if I do nothing at all? If you are a Class Member and you do nothing, you will participate in the Settlements as described in this notice, if the Settlements are approved. However, you will need to complete, sign, and return the Claim Form (once it is sent to you) in order to obtain a payment. 12

13 19. How do I get more information? GETTING MORE INFORMATION If you have questions about this case or want to get additional information, you may call or write to the lawyers listed in answer to Question 11 or visit the website This is only a summary of the Settlements and is qualified in its entirety by the terms of the actual Settlement Agreements. Copies of the Settlement Agreements, including the releases, are on public file with and available during normal business hours at United States District Court for the District of Massachusetts, United States Courthouse, One Courthouse Way, Boston, MA and are also available for download and/or viewing on PLEASE DO NOT WRITE OR CALL THE COURT OR THE CLERK S OFFICE FOR INFORMATION. 13