SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO

Transcription

1 Eric B. Fastiff (State Bar No ) LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA Telephone: (415) Facsimile: (415) Dan Drachler (pro hac vice) ZWERLING, SCHACHTER & ZWERLING, LLP 1904 Third Avenue, Suite 1030 Seattle, WA Telephone: (206) Facsimile: (206) Joseph R. Saveri (State Bar No ) JOSEPH SAVERI LAW FIRM 555 Montgomery Street, Suite 1210 San Francisco, CA Telephone: (415) Facsimile: (415) Plaintiffs Co-Lead Counsel Additional counsel listed on signature page SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN DIEGO Coordination Proceeding Special Title (Rule 1550(b)): CIPRO CASES I and II This Document Relates To: ALL ACTIONS Judicial Council Coordination Proceeding Nos and 4220 CLASS ACTION The Honorable Ronald L. Styn NOTICE OF ENTRY OF ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION Date: August 15, 2016 Time: 9:00 a.m. Courtroom: Department TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 15, 2016, Plaintiffs Motion for Summary Adjudication Against Defendant Barr Laboratories, Inc. came on regularly for hearing before the Honorable Ronald L. Styn. On August 12, 2016, the court issued its tentative ruling, attached Notice of Entry of Order JCCP Nos & 4220

2 1 2 3 hereto and incorporated herein by reference as Exhibit A. On August 15, 2016, the court heard oral argument on the Motion, and after hearing that argument, confirmed its tentative ruling, at which time, the tentative ruling became the order of the 4 court. As fully set forth in Exhibit A, the court granted Plaintiffs Motion for Summary Adjudication in its entirety. Dated: August 15, 2016 By: /s/ Ralph B. Kalfayan Ralph B. Kalfayan (State Bar No ) KRAUSE, KALFAYAN, BENINK & SLAVENS, LLP 550 West C Street, Suite 550 San Diego, CA Plaintiffs Local Liaison Counsel Eric B. Fastiff (State Bar No ) Brendan P. Glackin (State Bar No ) Dean M. Harvey (State Bar No ) Lin Y. Chan (State Bar. No ) Wilson M. Dunlavey (State Bar No ). LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA Dan Drachler (pro hac vice) ZWERLING, SCHACHTER & ZWERLING, LLP 1904 Third Avenue, Suite 1030 Seattle, WA Joseph R. Saveri (State Bar No ) Matthew S. Weiler (State Bar No ) Ryan J. McEwan (State Bar No ) Kyla J. Gibboney (State Bar No ) JOSEPH SAVERI LAW FIRM, INC. 555 Montgomery Street, Suite 1210 San Francisco, CA Plaintiffs Class Counsel Notice of Entry of Order JCCP Nos & 4220

3 EXHIBIT A

4 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO HALL OF JUSTICE TENTATIVE RULINGS - August 12, 2016 EVENT DATE: 08/15/2016 JUDICIAL OFFICER:Ronald L. Styn EVENT TIME: 09:00:00 AM DEPT.: C-62 CASE NO.: JCCP4154 CASE TITLE: JCCP4154 COORDINATION PROCEEDING CIPRO CASES I & II (E-FILE] CASE CATEGORY: Civil- Unlimited CASE TYPE: Antitrust/Trade Regulation EVENT TYPE: Summary Judgment I Summary Adjudication (Civil) CAUSAL DOCUMENT/DATE FILED: The court addresses the evidentiary issues. Plaintiffs' request for judicial notice is granted. Plaintiffs' evidentiary objections 1-9 and 19 are overruled; objections 30, 31 and 33 are overruled because the objected to testimony is not specified. Fibreboard Paper Products Corporation v. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, et al. (1964) 227 Cal.App.2d 675, 712. The court does not reach evidentiary obj~ctions 10-18, and 32. The court finds this evidence is not material to the disposition of this motion. CCP 437c(q). The court then rules as follows. Plaintiffs' motion for summary adjudication is granted in its entirety. Preliminarily, the court notes that this motion has been withdrawn as to Defendant Barr Laboratories, lnc.'s affirmative defense numbers 9, 20, 22, 24, 26, 28, 29, 30, 31, 32, 33, 34, 36, 41, 42, 44, 46 and 49 and withdrawn completely as to Defendants Hoechst Marion Roussel, Inc., The Rugby Group, Inc. and Watson Pharmaceuticals, Inc. Plaintiffs seek summary adjudication of Barr's affirmative defense numbers 1, 2, 3, 5, 6, 7, 14, 17, 23, 27, 37, 39, 43, 45, 47 and 50. When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion "only if it completely disposes" of the defense. (Code Civ. Proc., 437c, subd. (f)(1), italics added.) The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. (See Securitas Security Services USA, Inc. v. Superior Court, supra, 197 Cal.App.4th at pp , 127 Cal.Rptr.3d 883; Code Civ. Proc., 437c, subd. (f); see also West/ye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, , 22 Cal.Rptr.2d 781.) If the plaintiff does not make this showing, " 'it is unnecessary to examine the [defendant's] opposing evidence and the motion must be denied.' " (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950, 139 Cal.Rptr.3d 464.)" 'However, if the moving papers establish a prima facie showing that justifies a {ruling] in the [plaintiff's] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue.'" (Ibid.) See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, Event ID: TENTATIVE RULINGS Page: 1 Calendar No.: 3

5 CASE TITLE: JCCP4154 COORDINATION CASE NUMBER: JCCP4154 PROCEEDING CIPRO CASES I & II Affirmative Defenses 1, 2 and 3 Plaintiffs' motion is granted. Plaintiffs submit evidence that these pleadings-based affirmative defenses were resolved on demurrer. [SSUMF 1, 2, 3, 4, 5, 6, 7, 8.J In ruling on Defendants' demurrer, the court determined that the complaint was sufficient to state the causes of action pied. This court finds nothing in In re Cipro Cases I & II (2015) 61 Cal.4th 116 changes the pleading requirements for the causes of action at issue. The court is not persuaded by the arguments Barr raises or by the authorities Barr cites. None of the authorities Barr relies on address this issue in the context of a motion for summary adjudication following sustaining of a demurrer. Although these affirmative defenses are pleading-based and not dependent on a factual showing, to the extent Barr contends there are factual issues, such factual issues do not negate the sufficiency of the pleadings as determined on demurrer. Factual issues will be resolved at trial. The court summarily adjudicates affirmative defenses 1, 2 and 3 in favor of Plaintiffs. Affirmative Defenses S, 6 and 7 Plaintiffs' motion is granted. The court finds, following the California Supreme Court decision in this case, In re Cipro Cases I & II, Barr fails to establish "Privilege" "Good Faith Pursuit of Legitimate Business Objectives" and "No Claim Based on Conduct Specifically Permitted by Law" as viable affirmative defenses. Rather, the analysis is that of the "structured rule of reason" set forth in In re Cipro and Barr's claims that its actions were taken in pursuit of its own economic interests, were undertaken in good faith, with the absence of malicious intent and/or that Barr's conduct is specifically permitted by law, are to be resolved in the context of the burden shifting analysis of In re Cipro. The court summarily adjudicates affirmative defenses 5, 6, and 7 in favor of Plaintiffs. Affirmative Defenses 14, 17, 23, and 27 Plaintiffs' motion is granted. Barr fails to provide authority holding that "Suit Barred Because Benefits Realized" "Failure to Mitigate Damages" "Intervening or Superseding Acts of Third Parties" and "Estoppel and Unclean Hands" are viable defenses to this reverse payment patent settlement case or to any cause of action based on violation of the Cartwright Act. To the extent Barr raises factual issues, while such factual issues maybe relevant to the "structured rule of reason" analysis of In re Cipro, Barr fails to establish these affirmative defenses as applicable in this case. The court summarily adjudicates affirmative defenses 14, 17, 23 and 27 in favor of Plaintiffs. Affirmative Defenses 37 and 39 Plaintiffs' motion is granted. Barr claims that Plaintiffs' UCL claims violate due process because the UCL authorizes actions to be brought on behalf of individuals who have suffered no injury. Barr also claims an award of restitution to uninjured persons would be an excessive fine. Barr relies on evidence that uninjured parties are included in Plaintiffs' class and that the class definition includes third-party payer Plaintiffs who were not harmed. The court is finds, under the analysis of In re Cipro Cases I and II (2004) 121 Cal.App.4th 402; Bruno v. Superior Court (1981) 127 Cal.App.3d 120 and Corbett v. Superior Court (2002) 101 Cal.App.4th 649, Plaintiffs' Cartwright Act and UCL claims neither violate due process nor impose an excessive fine. If the defendant in a class action is found liable, and there is a finding at trial as to the amount of class-wide damages, each class member's individual entitlement to damages may be litigated in a nonadversary administrative claims procedure with a lowered standard of proof. (State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472, 224 Cal.Rptr. 605, 715 P.2d 564; Bell, supra, 115 Cal.App.4th at p. 759, 9 Cal.Rptr.3d 544.) In such a claims procedure, the allocation of the total sum of Event ID: TENTATIVE RULINGS Calendar No.: 3 Page:2

6 CASE TITLE:JCCP4154 COORDINATION CASE NUMBER: JCCP4154 PROCEEDING CIPRO CASES I & II damages among the individual class members" 'is an internal accounting question that does not directly concern the defendant....'" (Bell, supra, 115 Cal.App.4th at p. 759, 9 Cal.Rptr.3d 544, quoting 2 Conte & Newberg, Newberg on Class Actions, supra, 4:26, p. 233; see also Bruno v. Superior Court, supra, 127 Cal.App.3d at p. 129, 179 Cal.Rptr. 342 r'a class action which affords due process of law to the defendant through the time when the amount of his liability is calculated cannot suddenly deprive him of his constitutional rights because of the way the damages are distributed'1.) In re Cipro, 121 Cal.App.4th at 417. Bruno further explains, [a] recovery of damages by someone who has not sustained damages is clearly contrary to the Cartwright Act, but the use of fluid class recovery will not produce such a result. The supermarkets misinterpret the meaning of the phrase "recover damages." The recovery of damages ordinarily means the recovery of a judgment, not the payment of money. (Westinghouse Electric Co. v. Chambers (1915) 169 Cal. 131, [145 P. 1025], disapproved on other grounds in Mandel v. Myers (1981) 29 Cal.3d 531, 551, fn. 9 [174 Cal.Rptr. 841, 629 P.2d 935]; Rowe v. Holmes (1944) 63 Cal.App.2d 46, 49 [146 Cal.Rptr. 45]; Ferris v. Independence Indemnity Co. (1932) 124 Cal.App. 154, 157 [12 P.2d 148]; Cordes v. Harding (1915) 27 Cal.App. 474, 479 [150 P. 650].) Thus, in a class action under Business and Professions Code section 16750, subdivision (a), damages are recovered as soon as the judgment is entered in favor of the plaintiff class, not when the money is distributed. The only persons who will recover damages, therefore, are the members of the plaintiff class; and assuming that proper procedures were used in certifying the class, finding liability, and calculating the amount of damage done the class members by the defendant, those persons will have been injured in their business or property and will be recovering damages which they sustained. That the recovered damages may later be distributed to some noninjured people is not proscribed by section 16750, subdivision (a). Bruno, 127 Cal.App.3d at Under these authorities issues of whether uninjured parties are included in Plaintiffs' class and whether the class definition includes third-party payor Plaintiffs who were not harmed,do not provide an affirmative defense to Barr. The court summarily adjudicates affirmative defenses 37 and 39 in favor of Plaintiffs. Affirmative Defenses 43 and 50 Plaintiffs' motion is granted. In light of the analysis and holding in In re Cipro, that federal law does not preempt Plaintiffs' claims in this case [In re Cipro, 61 Cal.4th at ], the court finds Barr's affirmative defenses of "Federal Preemption" "Abstention" are not viable defenses to Plaintiffs' claims. The court summarily adjudicates affirmative defenses 43 and 50 in favor of Plaintiffs. Affirmative Defense 45 Plaintiffs' motion is granted. In Clayworth, the California Supreme Court stated that "in instances where multiple levels of purchasers have sued, or where a risk remains they may sue... [and] if damages must be allocated among the various levels of injured purchasers, the bar on consideration of pass-on evidence must necessarily be lifted." Clayworth, 49 Cal.4th at 787 (emphasis added). The Clayworth court did not limit the availability of a pass-on defense to cases involving duplicative recoveries or judgments, and instead held that the pass-on defense could be permitted where there was "the prospect of duplicative recovery." Here, there is a very real prospect of duplicative recovery because defendants have been sued by multiple levels of purchasers alleging overlapping and/or identical claims. Further, the Court disagrees with plaintiffs' assertion that settlements cannot be considered when evaluating whether there is the possibility of duplicative recovery. A settlement is a recovery that resolves a claim, and the question is not whether a settlement by another set of plaintiffs (for example, the IPPs) is binding on the current plaintiffs, but rather whether multiple plaintiffs are seeking to recover for the same alleged overcharge. In re TFT-LCD (Flat Panel) Antitrust Litigation (N.D. Cal. 2012) 2012 WL at *2. Event ID: TENTATIVE RULINGS Page:3 Calendar No.: 3

7 CASE TITLE: JCCP4154 COORDINATION CASE NUMBER: JCCP4154 PROCEEDING CIPRO CASES I & II Barr submits evidence that multiple purchasers may be involved in each transaction including the consumer, one or more insurers, a health plan sponsor, hospitals and pharmacies. However, the class includes those who "indirectly purchased, paid and/or reimbursed for Cipro intended for consumption by themselves, their families, or their members, participants, and employees or insureds" and that the Class does not include resellers of Cipro. Thus, any allocation of damages, if necessary, can be accomplished in the context of this litigation. Under these circumstances, Barr fails to establish a basis for applicability of the pass-on defense. The court summarily adjudicates affirmative defense 45 in favor of Plaintiffs. Affirmative Defense 47 ('"Noerr-Pennington) Plaintiffs' motion is granted. Examining the same settlement agreements as are at issue in this case, court in In re Ciprofloxacin Hydrochloride Antitrust Litigation (E.D.N.Y. 2003) 261 F.Supp.2d 188 determined that "defendants' conduct pursuant to the agreements in this case is not afforded immunity from the antitrust laws under the Noerr-Pennington doctrine." The court is persuaded that the same analysis applies in this case and that Barr's conduct is not afforded immunity from Plaintiffs' antitrust claims. The court is not persuaded by the cases Barr cites, because, unlike In re Ciprofloxacin, neither provides an analysis of the settlement agreements at issue in this case. Freeman v. Lasky, Haas & Goh/er (9th Cir. 2005) 410 F.3d 1180 addresses the issue of whether discovery by a party in a civil action was protected by the right to petition and subject to the Noerr-Pennington doctrine. Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049 addresses the issue of whether a party's conduct in hiring an investigator constitutes petitioning the government for purposes of application of the Noerr-Pennington doctrine. The case Tichinin cites to Columbia Pictures Industries, Inc. v. Professional Real Estate Investors, Inc. (9th Cir. 1991) 944 F.2d 1525, addresses the issue, not of whether a settlement agreement is protected activity, but whether the decision to accept or reject a settlement offer is protected activity. The court summarily adjudicates affirmative defense 47 in favor of Plaintiffs. Event ID: TENTATIVE RULINGS Page:4 Calendar No.: 3