NOTICE OF PENDENCY OF CLASS ACTION

Transcription

1 NOTICE OF PENDENCY OF CLASS ACTION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS If you bought SHARPS CONTAINERS directly from Tyco or its successor entity Covidien, Inc., your rights could be affected by a lawsuit. A federal court authorized this notice. It is not a solicitation from a lawyer. Direct Purchasers of sharps containers ( Plaintiffs ) have filed this lawsuit against Tyco International (US) Inc., Covidien, Inc. (formerly Tyco HealthCare Group LP), and the Kendall Healthcare Products Co. (together Covidien or Defendants ). Plaintiffs allege that Covidien violated antitrust laws relating to the sale of sharps containers. On August 29, 2008, the Court ruled that this lawsuit may proceed as a class action on behalf of direct purchasers of sharps containers from Covidien or its predecessor, Tyco Healthcare at any time between October 4, 2001 and August 29, You may be a member of this Class. The purpose of this notice is to advise you of your rights as a potential Class member. Covidien denies all of Plaintiffs claims, and the Court has not decided whether Covidien did anything wrong. There is no money available now and no guarantee there will be. However, if you are a member of this class, your legal rights are affected whether you act or do not act. Please read this notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT DO NOTHING EXCLUDE YOURSELF If you do nothing, you keep the right to have the final outcome of the lawsuit, whether favorable or unfavorable, apply to you. But you give up any rights to sue Defendants separately about the same legal claims in this lawsuit. If you exclude yourself, you will give up the right to share in any recovery that might be paid to the Class as a result of trial or settlement of this lawsuit. But, you will not be bound by any decision in this lawsuit, whether favorable or unfavorable. This is the only option that allows you to ever be part of any other lawsuit against Covidien relating to the legal claims in this case. These rights and options and the deadlines to exercise them are explained in this notice. If a recovery of damages is obtained for the Class after the claims against Defendants and any appeals are resolved, you will be notified about how to ask for a share. BASIC INFORMATION 1. Why did I get this notice? You received this notice because you may have purchased sharps containers directly from Covidien or its predecessor, Tyco Healthcare, between October 4, 2001 and August 29, This notice explains that the Court has allowed, or certified, a class action lawsuit that may affect you. This notice explains the lawsuit and the legal rights and options that you may exercise before the Court holds a trial.

2 2. What is this lawsuit about? In this lawsuit, Plaintiffs allege that Covidien violated federal antitrust laws with respect to the sale of its sharps containers and seek money damages. Plaintiffs allege that Defendants entered into unlawful contracts, including sole source agreements with Group Purchasing Organizations that allowed Defendants to substantially foreclose competition in the United States market for sharps containers and maintain a monopoly in the sharps container market. Plaintiffs allege that, as a result of this conduct, direct purchasers paid artificially inflated prices for Covidien's sharps containers. Plaintiffs seek treble damages, attorneys fees and costs. Covidien denies these allegations. Covidien claims that its conduct was lawful, and that its contracts with Group Purchasing Organizations benefited consumers and resulted in lower prices. The Court has not yet ruled on the merits of the claims or defenses in this case. The class action is known as Natchitoches Parish Hospital Service District et al v. Tyco International et al, Civ. Action No PBS. Judge Patti B. Saris of the United States District Court for the District of Massachusetts is overseeing this class action. 3. What is 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, there are two Class Representatives: Natchitoches Parish Hospital Service District and JM Smith Corporation d/b/a/ Smith Drug Company. The Class Representatives and the entities on whose behalf they have sued are together a Class or Class Members. They are also called the Plaintiffs. The companies that have been sued are called the Defendants. In this case, there are three Defendants: Tyco International (US) Inc.; Covidien, Inc. (formerly Tyco Healthcare Group LP); and The Kendall HealthCare Products Company. In a class action lawsuit, one court resolves the issues for everyone in the Class, except for those who exclude themselves from the Class, as described on pages 3 and 4 below. 4. Why is this lawsuit a class action? The Court has decided 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 has found that: The Class Members have 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 questions and facts are more predominant than questions affecting only individual members of the Class, and this class action will be more efficient than individual lawsuits. 5. Has the Court identified Class claims, issues or defenses? Yes. In the Order that certified the Class, the Court found that there were common classwide claims and issues. Common claims and issues include: Whether Defendants obtained, maintained, and/or possessed market power in the sharps container market in the United States during the Class Period, and whether such market power was obtained and/or maintained through anticompetitive practices; 2

3 Whether Defendants contracting practices, including sole source contracts with Group Purchasing Organizations, unreasonably restrain competition in the sharps container market in violation of federal antitrust laws; and Whether Defendants contracting practices, including sole source contracts with Group Purchasing Organizations had pro-competitive benefits. 6. What has happened in the case so far? Fact and expert discovery has been taken in the case. Discovery has now closed. No trial date has yet been set. Each party has filed motions seeking exclusion of certain expert witnesses. The Court held a hearing on these motions, and decisions are pending. The Court s ruling on class certification does not mean that the Court has found that the Defendants engaged in any wrongful conduct or the Class will recover any damages in the lawsuit. These issues remain to be resolved in the lawsuit. The class certification ruling simply means that the final outcome of the lawsuit, whether favorable to the Plaintiffs or Defendants, will apply in the same manner to every Class member who does not elect to be excluded from the Class (as described below). WHO IS IN THE CLASS 7. Am I part of the Class? The Court has decided that all entities in the United States that purchased sharps containers directly from Defendants at any time between October 4, 2001 and August 29, 2008, are Class Members. If you only bought sharps containers from a source other than Defendants (for example, if you only bought from a distributor or wholesaler), you are not a member of the Class on whose behalf this suit will be maintained. Only purchases of sharps containers directly from Defendants are covered by this lawsuit. Plaintiffs are not seeking any relief with regard to indirect purchases. The Court excluded from the Class Defendants and their parents, subsidiaries and affiliates. 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 14 below. IF YOU DO NOTHING 8. What happens if I do nothing at all? If you do nothing, you remain in the Class. You will be bound by any judgment reached in this case. To the extent there is any recovery through trial or settlement, you will keep the right to share in it. You will not be able to start a lawsuit, continue with another lawsuit, or be part of any other lawsuit against Tyco Healthcare about the legal issues in this case. All of the Court s orders will apply to you and legally bind you. EXCLUDING YOURSELF FROM THE CLASS 9. What happens if I ask to be excluded? If you ask to be excluded, you will not be bound by any judgment, whether favorable or unfavorable, that may be made in this case. If any recovery is obtained as the result of a trial or settlement, you will not share in it. You will keep any right to sue Covidien on your own, about the legal issues in this case. If you want to be excluded from the Class, then you must take certain steps. This is sometimes referred to as opting out of the Class. 3

4 If you start your own lawsuit against Covidien after you exclude yourself, you will have to hire and pay your own lawyer for that lawsuit, and you will have to prove your claims. If you do exclude yourself so you can start or continue your own lawsuit against Covidien, you should talk to your own lawyer soon, because your claims may be subject to a statute of limitations. 10. How do I get excluded from the Class? To exclude yourself from the Class, you must send a letter by first class U.S. mail that includes the following statement, I want to be excluded from the Natchitoches Parish Hospital Service District, v. Tyco International, Inc. class action. If your letter does not include this statement, you will not be excluded. Be sure also to include your name, address, telephone number, and your signature. You must mail your exclusion request to the Notice Administrator, postmarked on or before July 21, 2009, at: Sharps Antitrust Class Action Litigation, c/o Berdon Claims Administration, P.O. Box 9014, Jericho, NY You cannot exclude yourself by telephone or by . The Court shall automatically grant all timely requests for exclusion. 11. If I don t exclude myself, can I sue Defendants for the same thing later? No. Unless you exclude yourself, you give up any right to sue Defendants for the claims presented in this lawsuit. If you have a pending lawsuit, speak to your lawyer in that case immediately, because you must exclude yourself from this Class to continue your own lawsuit. Remember, the exclusion deadline is July 21, THE TRIAL 12. How and when will the Court decide who is right? If the claims against Defendants are not resolved by a settlement or otherwise, Class Counsel will have to prove the Plaintiffs claims against Defendants at a trial. The Court has not yet set a date for trial in this case. During the trial, a judge or jury will hear all the evidence to help them reach a decision about whether the Plaintiffs claims or the Defendants defenses are valid. There is no guarantee that the Plaintiffs will win. 13. Do I have to come to the trial? You do not need to attend the trial. Class Counsel will present the case for the Plaintiffs, and the Defendants will present their defenses. You or your own lawyer are welcome to attend the trial at your own expense. THE LAWYERS REPRESENTING YOU 14. Do I have a lawyer in this case? The Court has decided that the lawyers listed below are qualified to represent you and all Class Members. Together the law firms are called Class Counsel. They are experienced in handling similar cases against other companies. The lawyers are: 4

5 Garwin Gerstein & Fisher LLP Odom & Des Roches, LLP (Lead Counsel) Poydras Center, Suite Broadway, Suite Poydras Street New York, NY New Orleans, LA (212) (504) The Smith Foote Law Firm Berger & Montague, P.C. 720 Murray Street 1622 Locust Street Post Office Box 1632 Philadelphia, PA Alexandria, LA (215) (318) 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. 16. How will the lawyers be paid? If Class Counsel gets a recovery for the Class from Defendants, the Court will be asked to approve a fee to the lawyers and reimbursement for the expenses they have paid. You will not have to pay these fees and expenses. If the Court grants Class Counsel s requests, the fees and expenses will either be deducted from any money obtained for the Class or paid separately by Defendants. GETTING MORE INFORMATION 17. How do I get more information? If you have questions about this case or want to get additional information, you may also contact the Notice Administrator at: Sharps Antitrust Class Action Litigation, c/o Berdon Claims Administration, P.O. Box 9014, Jericho, NY ; by toll-free phone at: (800) ; by fax at: (516) ; or visit the website at: You may also visit the websites of any of the lawyers listed in question 14. PLEASE DO NOT WRITE OR CALL THE COURT OR THE CLERK S OFFICE FOR INFORMATION. Date: May 22, 2009 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 5