Is an indirect purchaser antitrust class properly certified under Federal Rule of Civil Procedure 23(b)(3) where it includes at least 55,000 concededly uninjured members, corresponding to 5.7% of the entire class? The Eastern District of New York, in In re Restasis (Cyclosporine Ophthalmic Emulsion) Antitrust Litigation, No. 18-MD-2819 (NG) (LB) (E.D.N.Y. May 5, 2020), recently answered yes, certifying a class of indirect purchasers of Restasis, a brand dry-eye disease medication.
Defendant Allergan, Inc. appealed this decision under Rule 23(f) asking the U.S. Court of Appeals for the Second Circuit to address the recurring class-action issue regarding the impact of uninjured class members on the propriety of class certification, and to consider to what extent there is a de minimis exception that allows class certification where there are uninjured members. These are issues not yet addressed directly by the Second Circuit, and whether it aligns with recent decisions from other circuits or not may have important implications for antitrust class actions.
Requirements for Certification
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