govinfo:USCOURTS-njd-2_12-cv-00995-6

Not for Publication 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
In re: Lamictal Direct Purchaser Antitrust 
Litigation 
 
 
  
 
Civil Action No. 12-995
 
 
OPINION 
 
John Michael Vazquez, U.S.D.J. 
 This antitrust class ac tion involves the allegedl y artificially inflated  pricing of the brand 
drug Lamictal, manufactured by Defendant SmithKline Beecham Corporation d/b/a 
GlaxoSmithKline (“GSK”), and its generic competit or lamotrigine, manufactured by Defendants 
Teva Pharmaceutical Industries LTD and its s ubsidiary Teva Pharmaceuticals USA, Inc. 
(collectively “Teva”).  Presently before the Court is Direct Purchaser Class Plaintiffs’ (“Plaintiffs”) 
motion for class certification.  D.E. 543.  The Court reviewed the parties’ submissions
1 and decided 
the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b).  For the 
reasons set forth below, Plaintiffs’ motion is DENIED. 
I. BACKGROUND  
The complete factual background is descri bed in the Court’s Opinion denying class 
certification as to the purchasers of lamotrigine, which is hereby incorporated into this Opinion.  
See In re Lamictal Direct Purchaser Antitrust Litig., No. 12-995, 2021 WL 2349828 (D.N.J. June 
 
1 Plaintiffs’ brief in support of its motion will be referred to as “Plfs. Br.” (D.E. 544); Defendants’ 
opposition will be referred to as “Defs. Opp.” (D.E. 546); and Plaintiffs’ reply will be referred to 
as “Plfs. Reply” (D.E. 550).   
 
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7, 2021) (“Lamictal III”).2  In short, GSK and Teva were involved in a patent lawsuit over GSK’s 
brand drug, Lamictal, and Te va’s generic version, lamotrigine.  D.E. 55 (“Compl.”) ¶ 13.  GSK 
and Teva reached a settlement which involved GSK promising to refrain from launching its own 
competing authorized generic version of Lami ctal (the “No-AG Promise”) until the Lamictal 
patent expired.  D.E. 373-3 at 2; D.E. 373-4 at 16.  Plaintiffs in the present action claim that absent 
the No-AG Promise, Teva’s generic drug woul d have faced pricing competition from GSK’s 
authorized generic drug.  Compl. ¶ 28.  Thus, Plaintiffs assert, the lack of competition that resulted 
from the No-AG Promise forced Plaintiffs to purchase both Lamictal and lamotrigine at artificially 
inflated prices.  Id.  Defendants argue that Plaintiffs were not harmed because GSK lowered the 
prices of Lamictal through a c ontracting strategy, and Teva, upon learning of this contracting 
strategy, preemptively lowered the price of lamotrigine.   
On June 25, 2018, Plaintiffs moved to certify the following class:  
All persons or entities in the Unit ed States and its territories who 
purchased Lamictal Tablets directly from GSK, or who purchased a 
generic version of lamo trigine tablets directly from Teva, at any 
time during the Class Period from February 17, 2008 until January 
22, 2009.   
 
D.E. 372 at 3.  Defendants argued that it was “w rong to think about the proposed class as one 
group of 65 members,” rather than two separate groups (one of 32 brand purchasers and one of 33 
generic purchasers), because of different theories of liability.  D.E. 406 at 28.  Defendants added 
that because “the theories should be kept separa te,” “Plaintiffs must prove that each group of 
purchasers meets the numerosity requirement on its own.”  Id.  Judge Walls certified the proposed 
class in its entirety.  In re Lamictal Indirect Purchaser & Antitrust Consumer Litig ., No. 12-995, 
 
2 A sealed version of this Opinion was issued on April 9, 2021 (D.E. 502), and an unsealed version 
was issued on June 7, 2021 (D.E. 517).   
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2018 WL 6567709 (D.N.J. Dec. 12, 2018) (“ Lamictal I”), vacated and remanded sub nom.  In re 
Lamictal Direct Purchaser Antitrust Litig ., 957 F.3d 184, 191 (3d Cir. 2020) (“ Lamictal II ”).  
Defendants appealed, challenging only the certification of class members who purchased generic 
lamotrigine from Teva (“Generic-Only Purchasers”).  Lamictal II , 957 F.3d 184, 190 (3d Cir. 
2020).  Defendants did not challenge class certifica tion as to the 32 direct purchasers of brand 
Lamictal.  Id.  The Third Circuit vacated Judge Walls’s decision and re manded with instructions 
to perform a rigorous analysis in determinin g whether to certify the class of Generic-Only 
Purchasers.  Id. at 195.  On remand, the Court found th at Plaintiffs had not shown by a 
preponderance of the evidence that they could prove antitrust injury through common evidence as 
to the Generic-Only Purchasers and thus denied class certific ation of this group.  Lamictal III, 
2021 WL 2349828, at *3. 
Following the ruling, the parties disputed whet her the direct brand purchasers were a 
sufficient class based on Judge Walls’s prior ruling.  See D.E 504 at 1; D.E. 506 at 1.  The Court 
found that “it doesn’t appear that  Judge Walls separately found that the dire ct purchasers were a 
sufficient class,” because he “didn’t make a deci sion on [numerosity]” other than to say that if 
predominance was not met, any su bclasses would still need to m eet the Rule 23 requirements, 
including numerosity.  See D.E. 528 at 7-8.3  Accordingly, the Court allowed the parties to submit 
additional briefing to address the numerosity issue and whether supplemental expert reports were 
warranted on this issue.  D.E. 528. 
On June 4, 2021, Plaintiffs requested leave to file a supplemental expert report in support 
of smaller class “that includes at least 40 members: (a) all 32 direct purchasers of brand Lamictal 
 
3 See Lamictal I, 2018 WL 6567709 at *3 (“If the Court finds that predominance is not met at 
that stage, it can then entertain subclasses, which would respectively need to meet all of Rule 
23’s requirements, including numerosity.”). 
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. . . and (b) at least eight Generic-Only Purchasers – the eight that Defendants have not claimed 
were uninjured.”  D.E. 516 at 1 (emphasis in origin al).  Plaintiffs stated that the proposed report 
would address “whether (1) the proposed class satisfied the numerosity requirement of Rule 
23(a)(1) . . . ; and (2) antitrust injury to the eight generic-only purchasers could be proven with 
predominantly common evidence, an issue relevant to whether the class satisfies the predominance 
requirement of Rule 23(b)(3).”  D.E. 516 at 2.  The Court denied Plaintiffs’ request on January 21, 
2022, finding no proper basis for supplementation, and noted, with respect to Plaintiffs’ 
predominance request, that “Plaintiffs essentially s eek to relitigate the issue of class certification 
of the Generic-Only Purchasers,” despite the Cour t’s “previous[] deni[al] of class certification of 
the Generic-Only Purchasers, including the eight purchasers for which Plaintiffs now seek to offer 
supplemental expert opinions.”  In re Lamictal Direct Purchaser Antitrust Litig., No. 12-995, 2022 
WL 190651, at *3-4 (D.N.J. Jan. 21, 2021) (“ Lamictal IV”).  The Court explained that Plaintiffs 
failed to “raise this alternate argument, although it was clearly available to them, at an earlier stage 
of the proceedings.”  Id. at *3.   
On May 20, 2022, Plaintiffs filed the instant motion to certify the following class: 
All persons or entities in the Unit ed States and its territories who 
purchased Lamictal Tablets directly from GSK at any time during 
the Class Period from February 17, 2008 until January 22, 2009, and 
Cigna Healthcare, Express Scripts Pharmacy, Medco Health, 
Walmart, Omnicare, Immediate Ph armaceuticals Inc., Optum RX, 
and Prime Therapeutics LLC, each of whom directly purchased 
generic Lamictal Tablets from Te va during the Class Period from 
February 17, 2008 until January 22, 2009 at prices that were not 
reduced in response to GSK’s Contracting Strategy (the “Class”). 
Plfs. Br. at 1. 
II. CLASS CERTIFICATION STANDARD 
Federal Rule of Civil Procedure 23 governs class actions.  Marcus v. BMW of N. Am., LLC, 
687 F.3d 583, 590 (3d Cir. 2012).  “‘The class action is an exception to the usual rule that litigation 
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is conducted by and on behalf of th e individual named parties only.’”  In re Modafinil Antitrust 
Litig., 837 F.3d 238, 248 (3d Cir. 2016) (quoting Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 
348, (2011)).  Thus, “to justify this exception to the rule, ‘every putative class action must satisfy 
the four requirements of Rule 23(a) and the requirements of either Rule 23(b)(1), (2), or (3).”  Id. 
(citing Marcus, 687 F.3d at 590)).  Plaintiffs first bear the burden of showi ng that the proposed 
class satisfies the Rule 23(a) requirements:  
(1) The class must be “so numerous that joinder of all members 
is impracticable” (numerosity); (2 ) there must be “questions of 
law or fact common to the class” (commonality); (3) “the claims 
or defenses of representative pa rties” must be “typical of the 
claims or defenses of the class” (typicality); and (4) the named 
plaintiffs must “fairly and adequately protect the interests of the 
class” (adequacy of representation, or simply adequacy). 
In re Modafinil, 837 F.3d at 248 (internal quotations and citations omitted).    
Plaintiffs must also show that the proposed clas s satisfies Rule 23(b)(1), (b)(2), or (b)(3).  
Marcus, 687 F.3d at 590.  Here, Plaintiffs argue that  the putative class meets the requirements of 
Rule 23(b)(3), which “requires that (i) co mmon questions of law and fact predominate 
(predominance), and (ii) the class action is the superior method for adjudication (superiority).”  In 
re Modafinil, 837 F.3d at 248 (internal quotation marks and citations omitted).   
Pursuant to Rule 23(c)(1)(A), a court “must determine by order whether to certify the action 
as a class action.”  Fed. R. Civ. P. 23(c)(1)(A).  The decision to certify a class is left to the discretion 
of the court.  In re Hydrogen Peroxide Antitrust Litig. , 552 F.3d 305, 310 (3d Cir. 2008), as 
amended (Jan. 16, 2009).  “The requirements set out in  Rule 23 are not mere pleading rules.”  
Marcus, 687 F.3d at 591 (citing  Hydrogen Peroxide , 552 F.3d at 316).  “The party seeking 
certification bears the burden of establishing each  element of Rule 23 by a preponderance of the 
evidence.”  In re Modafinil , 837 F.3d at 248-49 (citing Hydrogen Peroxide, 552 F.3d at 307).  
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“[A]ctual, not presumed, conformance with Rule 23 requirements is essential,” therefore a “party’s 
assurance to the court that it intends or plans to meet the requirements is insufficient.”  Marcus, 
687 F.3d at 591 (internal quotation marks and citation omitted); Hydrogen Peroxide, 552 F.3d at 
318 (citation omitted).   “To determine whether there is actual conformance with Rule 23, a district 
court must conduct a ‘rigorous analysis’ of the evidence and arguments put forth.”  Marcus, 687 
F.3d at 591 (quoting Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 161 (1982)).  This “rigorous 
analysis” requires a district court to “resolve a ll factual or lega l disputes relevant to class 
certification, even if they overlap with the merits—including disputes touching on elements of the 
cause of action.”  Id.  Therefore, a district court “may de lve beyond the pleadings to determine 
whether the requirements for class certification are satisfied.”  Hydrogen Peroxide, 552 F.3d at 
320 (citations omitted). 
III. ANALYSIS 
The Court only considers whether Plaintiffs have satisfied their burden as to the numerosity 
requirement because the predominance requirement , as it pertains to the eight Generic-Only 
Purchasers was already litigated,4 and the other requirements do not appear to be in dispute.5  Rule 
 
4 See Lamictal III, 2021 WL 2349828, at *21 (“Plaintiffs have  not shown by a preponderance of 
the evidence that they can pr ove through common evidence that al l of Teva’s purchasers would 
have received additional disc ounts had GSK also launched an authorized generic.”); see also 
Lamictal IV, 2022 WL 190651, at *3 (denying Plaintiffs’ request for leave to supplement its expert 
report to address whether the eight Generic-On ly Purchasers can meet the predominance 
requirement because the Court previously deni ed class certification of the Generic-Only 
Purchasers, including the eight purchasers for whic h plaintiffs sought to offer additional expert 
opinion, thus “Plaintiffs cannot relitigate this issue.”); cf. Section III. A. (addressing Plaintiffs’ 
numerosity arguments as to the eight Generic-Only Purchasers) 
 
5 See generally Plfs. Br. (arguing that the Rule 23(a) and Rule 23(b)(3) requirements are satisfied); 
Defs. Opp. (responding only to the numerosity argum ents and the predomin ance arguments that 
pertain to the eight Generic-Only Purchasers).  
 
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23(a)(1) sets forth the numerosity requirement.  See Fed. R. Civ. P. 23(a)(1).  However, it is 
“conspicuously devoid of any numerical minimum required for class certification,” stating only 
that the numerosity requirement is satisfied when “the class is so numerous that joinder of all 
members is impracticable.”  In re Modafinil , 837 F.3d at 249 (citing Fe d. R. Civ. P. 23(a)(1)).  
“Impracticable does not mean impossible and refers rather to the difficulties of achieving joinder.  
Id. (internal quotation marks and c itations omitted).  “T his calls for an inhe rently fact-based 
analysis that requires a district court judge to ‘take into account the context of the particular case,’ 
thereby providing district courts considerable discretion in making numer osity determinations.” 
Id. (citation omitted). 
“[T]he number of class members is the starti ng point of [the] numer osity analysis,” and 
while “no minimum number of plaintiffs is required  to maintain a suit as  a class action,” joinder 
is generally presumed to be im practicable when the potential number of class members exceeds 
forty.  Id. at 250 (internal quotation marks and citations omitted).  Where a putative class consists 
of fewer than forty members, “the inquiry into impracticability should be particularly rigorous.” 
Id. at 249.  Indeed, the numerosity requireme nt is meant to have “real teeth.”   Allen v. Ollie's 
Bargain Outlet, Inc., 37 F.4th 890, 896 (3d Cir. 2022) (citing Mielo v. Steak 'n Shake Operations, 
Inc., 897 F.3d 467, 473-74 (3d Cir. 2018)).  Courts therefore consider the following non-exhaustive 
list of factors to determine wh ether joinder is impracticable: “judicial economy, the claimants’ 
ability and motivation to litigate as joined plaintiffs, the financial resources of class members, the 
geographic dispersion of class members, the ability to identify future claimants, and whether the 
claims are for injunctive relief or for damages.”  In re Modafinil , 837 F.3d at 253. “While all 
factors are relevant . . . both judicial economy and the ability to litigate as  joined parties are of 
primary importance” because they advance the “c ore purposes” of a class action and thus cannot 
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be outweighed by the other factors.  Id.  The Court first addresses the parties’ arguments as to the 
size of the class before considering the impracticability factors. 
A. Size of Class 
Plaintiffs ask the Court to cer tify a proposed class of thirty-two direct  purchasers of the 
brand Lamictal6 as well as the “8 generic-only purchasers that Defendants have not claimed were 
uninjured,” resulting in a class size  of forty.  Plfs. Br. at 1.  In th e alternative, Plaintiffs move to 
certify a class of the thirty-two direct brand purchasers, defined as follows:  
All persons or entities in the Unit ed States and its territories who 
purchased Lamictal Tablets directly from GSK at any time during 
the Class Period from February 17, 2008 until January 22, 2009 (the 
“Class”). 
Plfs. Br. at 3 n.8. 
To briefly recap, Plaintiffs in itially moved to certify a cl ass of both brand and generic 
purchasers.  Lamictal I, 2018 WL 6567709, at *3.  Defendants argued that that the proposed class 
was actually “two separate subclasses masquerading as one” to avoid numerosity issues.  Id. at *3; 
see D.E. 406 at 1-3, 27-28.  Judge Walls certified th e proposed class in its entirety, while noting 
that if the predominance requirement was not met, each subclass would respectively need to meet 
 
6 Plaintiffs frame the motion as a request to “reconfirm” Judge Walls’s certification of the class of 
thirty-two direct brand purchas ers and argue that Defendants waived any challenge to Judge 
Walls’s certification of this class.  Plfs. Br. at 1-2, 8-10.  Defendants disagree, Defs. Opp. at 26, as 
does the Court.  When Judge Walls found that the proposed 65-member class was sufficiently 
numerous, Judge Walls stated that if the Court were to “find[] that predominance is not met”—as 
this Court did on remand—it would then “entertain subclasses, which would respectively need to 
meet all of Rule 23’s requireme nts, including numerosity.”  Lamictal I, No. 12-995, 2018 WL 
6567709, at *3.  As noted above, the Court addressed this with the partie s and then permitted 
“additional briefing on numerosity as to the class as it currently stands.”  D.E. 528.  Because Judge 
Walls did not separately certify the class of dir ect brand purchasers, Plai ntiffs’ waiver argument 
falls short, as does Plaintiffs’ position that the proposed class was already certif ied.  Moreover, 
even if Judge Walls had certified this class, the “court has an independent obligation to determine 
whether [an] action can be maintained on a class basis.” Caputo v. Fauver, 800 F. Supp. 168, 169 
(D.N.J. 1992), aff'd, 995 F.2d 216 (3d Cir. 1993) (citations omitted). 
 
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all of Rule 23’s requirements , including numerosity.”   Lamictal I, 2018 WL 6567709, at *3, 8.  
Defendants then petitioned the Th ird Circuit for review of the District Court’s predominance 
finding as to the Generic-Only Purchasers.   Lamictal II , 957 F.3d at 187-88.  On appeal, 
Defendants argued that the District Court erred in its predominance analysis, and that absent such 
error, the class would not have been certified  because “abandoning the generic-generic injury 
theory would leave the class fa r too small to satisfy Rule 23(a)(1)’s numerosity requirement.” 7  
Brief for Defendants-Appellants, In re Lamictal Direct Purchaser Antitrust Litigation , 2019 WL 
2271643, at *51.  The Third Circuit vacated Judge  Walls’s decision and remanded with 
instructions to perform a rigorous analysis in determining whether to certify the class of Generic-
Only Purchasers.  Lamictal II, 957 F.3d at 195.   
Accordingly, Plaintiffs were on notice that a failure to meet the predominance requirement 
on remand could result in numerosity issues.  But Plaintiffs did not address the issue on remand.  
Plaintiffs instead argue d only that the Generic-Only Purcha sers satisfied the predominance 
requirement.  See generally D.E. 478.  And the Court found th at Plaintiffs had not shown by a 
preponderance of the evidence that they could prove antitrust injury through common evidence as 
to the Generic-Only Purchasers and thus denied class certifi cation of this group.  Lamictal III, 
2021 WL 2349828, at *3.    
Plaintiffs now attempt to relitigate this issu e by raising an alternat e argument that they 
failed to raise on remand: that a subs et of the Generic-Only Purchasers—i.e., the 8 Generic-Only 
Purchasers that Defendants purportedly have not claimed were uninjur ed—could independently 
 
7 See also Brief for Defendants-Appellants, In re Lamictal Direct Purchaser Antitrust Litigation, 
2019 WL 2271643, at *20 (“Absent these errors, the Court would have no choice but to find that 
common issues do not predominate or that, without the generic-only purchasers, the class is too 
small to satisfy Rule 23(a)’s numerosity requirement.”).   
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satisfy the predominance requirement and thus should be included in the proposed class.   See Plfs. 
Br. at 22-32.  This argument appears to be based on the faulty premise that “[t]his Court—and the 
Third Circuit —previously ruled that common issues did not predominate as to class-wide impact 
only because Plaintiffs’ common evidence could not show injury to the 25 generic-only purchasers 
[that] Defendants claimed were uninjured.”  Plfs. Reply at 1 (citing Lamictal II, 957 F.3d at 193-
94; Lamictal III, 2021 WL 2349828, at *20).  In  support, Plaintiffs rely  on Defendants’ expert’s 
finding that “25 of the 33 generic-only purchasers likely paid the same or lower prices in the actual 
world under the Contracting Strategy than they would have paid had GSK launched an AG,” and 
the sections of Lamictal II and Lamictal III that acknowledge this finding.  See Plfs. Reply at 1 n. 
1 (citing Lamictal II, 957 F.3d at 193-94; Lamictal III, 2021 WL 2349828, at *20).  But Defendants 
never conceded that these eight purchasers were uninjured. 8  And, as explained below, both the 
Circuit and the Court merely referenced this finding to underscore concerns as to Plaintiffs’ ability 
to show by a preponderance of the evidence that its expert’s use of averages could prove that each 
Generic-Only Purchaser would have received additional discounts but-for the No-AG Promise. 
 
8 Dr. Hughes’s conclusion—that up to 25 of 33 generic-only purchasers may not have been injured 
due to GSK’s No-AG Promise—does not equate to a concession on the part of Defendants that the 
other eight generic-only purchasers were injured.  As Plaintiffs themselves recognize, Dr. Hughes 
was unable to determine whether four of the Generic-Only Purchasers—Omnicare, Immediate 
Pharmaceuticals Inc., Optum RX, and Prime Therapeutics, LLC—were injured because they did 
not appear on the Teva spreadsheet on which Dr. Hughes’s analysis was based.  Plfs. Br. at 34 n. 
87 (quoting D.E. 478-3 at 28-29 n.67, Ex. 4a nn. 4-5, Ex. 4b nn. 5-6).  And Defendants argue that 
other evidence shows that at least one of these four purchasers (Omnicare) was uninjured.  Defs. 
Opp. at 29 n.11 (citing D.E. 518 at Ex. 1, Ex. 5 & n.7).  As to the other four purchasers—Cigna 
Healthcare, Express Scripts Pharmacy, Medco Health, and Walmart—the Hughes Report reflects 
that three of them had a 0.0% price change due to the No-AG Promise and that one of them had a 
price drop of $0.1 due to the No-AG Promise.  Bu t Defendants contend that the prices for these 
purchasers were so low to begin with (i.e., when  Teva faced no competition) that they were 
unlikely to decrease further even if Teva faced competition from another ge neric.  Defs. Opp. at 
30 n. 12.  In short, neither Defendants nor their e xpert ever conceded that the 8 Generic-Only 
Purchasers had shown antitrust injury.  
 
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Plaintiffs claim that Defendant s “only argu[ed] on appeal []  that up to 25 of 33 generic-
only purchasers may not have been injured due to GSK’s ‘Contracting Strategy,’ and that Plaintiffs 
could not prove with common evid ence that these 25 generic-only cl ass members were injured.”  
Plfs. Br. at 6.  This argument mischaracterizes Defendants’ argument9 and the scope of the appeal.  
As noted by the Third Circuit, Defendants challenged “certification as to the members who 
purchased generic lamotrigine from Teva.” Lamictal II, 957 F.3d at 190.  There is no indication 
that Defendants’ challenge, nor th e Circuit’s decision, was cabined to twenty-five of the thirty-
three Generic-Only Purchasers, rather than the entire class.  In support, Plaintiffs cite to the section 
of Lamictal II that concludes, based on the conflicting expert opinions, that an individual analysis 
is required to determine the amount that each pur chaser would have paid absent the settlement 
because Teva did not respond to th e Contracting Strategy uniformly.  See Plfs. Reply at 1 n. 1 
(citing Lamictal II, 957 F.3d at 193-94).  While this section acknowledges that Defendants’ expert 
found that “25 of the 33 generic-only purchasers likely paid the same or lower prices in the actual 
world under the Contracting Strategy than they would have paid had GSK launched an AG,” this 
finding merely factored into the Third Circuit’s ultimate ruling.  Lamictal II, 957 F.3d at 193-94.  
The Circuit found that it was an abuse of discre tion to assume, absent a rigorous analysis, that 
averages are acceptable, because the dueling expert  reports indicated that the acceptability of 
averages depended on the answers to several factual predicates.  Id. at 194.  The finding does not 
support the proposition that Defendants’ challenge,  nor the Third Circuit’ s ruling, were confined 
to the twenty-five Generic-Only Purchasers.  More over, the Third Circuit’s references to “each” 
class member and “all” class members further reflects that the challenge applied to certification of 
all members of the generic purchaser class.  See, e.g., id. at 192 (indicating that the plaintiffs are 
 
9 See infra n. 8. 
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required “to prove by a preponderance of the evidence that they could establish, through common 
proof at trial, facts supporting . . . [that] all class members would have paid less for [the generic]” 
but-for the reverse-settlement agreement, and that “[i]f each individual class member could rely 
on this same proof to prove the elements of its claim then the injury is capable of common proof 
at trial.”) (emphases added).    
Plaintiffs next argue that on remand, Defendants “argu[ed] that up to 25 of the 33 generic-
only purchasers allegedly were uninjured due to GSK’s Contracting Strategy,” and that the Court 
“did not rule on whether the 8 generic-only class me mbers who Defendants did not claim were 
uninjured could be included in the class.”  Plfs. Br. at 7.  Plaintiffs add that the Court only “ruled 
that common issues did not predominate . . . because Plaintiffs’ common evidence could not show 
injury to the 25 generic-only purchasers that Defendants claimed were uninjured.”  Plfs. Reply at 
1 (citing Lamictal III, 2021 WL 2349828, at *20).  This again is a mischaracterization.  And in 
support, Plaintiffs similarly cite to the section of Lamictal III that references Defendants’ expert’s 
finding in the context of acknowledging the Circ uit’s concern that th is finding, among others, 
undermined Plaintiffs’ expert’s use of averages.10  The Court’s acknowledgement of this finding 
does not reflect that Defendants’ argument, or the Court’s ruling, were confined to the twenty-five 
Generic-Only Purchasers.11  The question before the Court on  remand was “whether Plaintiffs 
 
10 See Lamictal III , 2021 WL 2349828, at *20 (citing Lamictal IV, 957 F.3d at 194 (“[A] key 
concern of the Third Circuit was the Court's analysis of the competing experts vis-à-vis the use of 
averages. The Circuit noted, among other things, th at Defendants’ expert, Dr. Hughes, criticized 
Plaintiffs’ expert's, Dr. Lamb, use of general forecasting documents rather than lamotrigine-
specific prices and indicated that Hughes developed his own model based on lamotrigine-specific 
prices from Teva documen ts that demonstrated that ‘25 of  the 33 generic-only purchasers likely 
paid the same or lower prices in the actual world under the Contracting Strategy than they would 
have paid had GSK launched an AG.’”)).   
 
11 In support, Plaintiffs also cite to the Cour t’s statement that “thos e Teva customers whose 
lamotrigine prices were not reduced in res ponse to the Contracting St rategy could prove through 
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have shown that they ca n prove such harm to all [generic] class members through common 
evidence.” Lamictal III , 2021 WL 2349828, at *6 (emphasis adde d).  And after a “rigorous 
analysis,” the Court found that Plaintiffs did not carry this  burden and denied ce rtification of the 
generic purchaser class because “Plaintiffs have  not shown by a preponderance of the evidence 
that they can prove through common evidence that all of Teva’s purchasers would have received 
additional discounts had GSK also launched an authorized generic.”  Id. at *21 (emphasis added).12   
Any purported confusion as to the scope of this ruling—and the weight that the references 
to Defendants’ expert’s findings carried—should have been clarifie d by the Court’s most recent 
opinion denying Plaintiffs leave to fi le a supplemental expert report.  See Lamictal IV, 2022 WL 
190651, at *3-4.  The Court took issue with Plaintiffs’ request to file a supplemental expert report 
addressing predominance with respect to eight of the thirty-two Generic-Only Purchasers because 
it appeared to be an attempt to “relitigate the issue of class certification of the Generic-Only 
Purchasers.”  Id. at *3.  The Court explained that it “previ ously denied class certification of the 
Generic-Only Purchasers, including the eight purch asers for which Plaintiffs now seek to offer 
supplemental expert opinions,” and stated that  “Plaintiffs cannot re litigate this issue.” Id. (citing 
Am. C.L. Union v. Mukasey , 534 F.3d 181, 187 (3d Cir.  2008)).  The Court a dded that Plaintiffs 
failed to “raise this alternate argument, although it was clearly available to them, at an earlier stage 
 
common evidence that they suffered antitr ust injury.”  Plfs. Br. at 7-8 (citing Lamictal III, 2021 
WL 2349828, at *17).  But this was a mere observation made by the Court—that such purchasers 
could show injury through common evidence.  Howe ver, the Court never ma de the next critical 
finding, that is, that Plaintiffs had actually shown that such customers existed.   
 
12 The Court noted that Plaintiffs could not satisfy their burden because, in part, of their failure to 
obtain key fact discovery regarding Teva's preemptive price reductions.  See Lamictal III , 2021 
WL 2349828, at *7 (“From the best that the Court can discern, it appears that part of the difficulty” 
in determining whether Teva preemptively lowere d its generic prices in response to the No-AG 
Promise “may be attributed to Plaintiffs’ not obtaining fact di scovery on this issue,” despite 
knowing about the AG-Strategy and Teva’s awareness of this strategy). 
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of the proceedings.”  Id. at *3.  The Court reiterates, once ag ain, that Plaintiffs cannot relitigate 
this issue because class certific ation for the Generic-Only Pu rchasers, including the eight 
purchasers for which Plaintiffs now seek to include in the proposed class, was previously denied.  
As such, the Court only considers whether the pr oposed class of direct brand purchasers satisfies 
the numerosity requirement.   
The Court next turns to Defendants’ arguments as to class size.  Defendants ask the Court 
to find that the proposed class of direct brand pu rchasers has twenty-seven members, rather than 
thirty-two members, because five of the brand purchasers lack standing as indirect purchasers, and 
thus “cannot be counted for purposes of impracticability of joinder.”  See Defs. Opp. at 12-13. 13  
In support, Defendants re-raise the arguments ra ised in their opposition to Plaintiffs’ first 
certification motion before Judge Walls: “‘two br and purchasers in the class did not buy any 
lamotrigine’—that is, they never switched to the lower-priced generic lamotrigine, which is 
Plaintiffs’ theory of brand-purchaser injury—and thus suffered no injury; [and] ‘three others did 
not buy generics directly during Teva’s exclusivity period.’”  Defs. Opp. at 12 (citing D.E. 406 at 
18-19).  Because this issue was decided by Judge Walls
14 and Defendants did not file a motion for 
reconsideration or raise this  issue on appeal thereafter, 15 the Court will not revisit Judge Walls’ 
findings as to this issue.  See Beazer E., Inc. v. Mead Corp. , 525 F.3d 255, 263 (3d Cir. 2008) 
 
13 Defendants also argue, in the “ability and motiva tion to litigate” section, that because eight of 
the brand purchasers have been acquired by anothe r brand purchaser, for practical purposes, the 
number of active litigation participants is far fewer than thirty-two.  Defs. Opp. at 11, 18-19. 
 
14 See Lamictal I, No. 12-995, 2018 WL 6567709, at *6 (considering “Defendants’ argument that 
some brand purchasers did not switch to lamotrig ine when it launched a nd thus suffered no 
injury”); id. at *7 (stating that this class is not comprised of indirect purchasers). 
 
15 See Lamictal II , 957 F.3d 184 at 190 (“GSK and Teva cha llenge only certification as to the 
members who purchased generic lamotrigine from Teva.”). 
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(quoting United States v. Husband , 312 F.3d 247, 250 (7th Cir.2002)) (“[A]ny issue that could 
have been but was not raised on appeal is waived and thus not remanded.”)); see also United States 
v. Smith, 751 F.3d 107, 122 (3d Cir. 2014) (quoting Skretvedt v. E.I. DuPont De Nemours,  372 
F.3d 193, 203 (3d Cir. 2004)) (“A party may not litigate on remand . . .  issues that ‘were not raised 
in [the] party's prior appeal and that were not explicitly or implicitly remanded for further 
proceedings.’”); see also United States v. Morris , 259 F.3d 894, 898 (7th Cir. 2001) (“[P]arties 
cannot use the accident of remand as  an opportunity to reopen waived issues.”).  Thus, the Court 
considers whether joinder is impracticable for a class of thirty-two members. 
B. Impracticability of Joinder 
Because the class consists of fewer than forty members, the Court must conduct a 
“particularly rigorous” inquiry into the impracticability of joinder, with consideration given to the 
following relevant, but non-exhaustive, factors: “judicial economy, the claimants’ ability and 
motivation to litigate as joined plaintiffs, the financial resources of class members, the geographic 
dispersion of class members, the ability to identi fy future claimants, and whether the claims are 
for injunctive relief  or for damages.” In re Modafinil , 837 F.3d at 253.  The first two factors—
judicial economy and the claimant’s ability and mo tivation to litigate as joined plaintiffs—carry 
the most weight.  Id.  
1. Judicial Economy 
Judicial economy looks to th e “administrative burde n that multiple or aggregate claims 
place upon the court” and takes into account “any ef ficiency considerations . . . including the 
number of parties and the nature of the action.”  Id. at 254 (citations omitted).  The analysis must 
“focus on whether the class action mechanism is s ubstantially more efficient than joinder of all 
parties.”  Id.  Thus, the Court considers the “actual, prac tical difficulties of joining all of the 
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potential class members.”  Id. (citing 5 Moore’s Federal Practice § 23.22).  For example, the Court 
may consider whether joinder “would be expensive, time-consuming, and logistically unfeasible,” 
id.; however, the Court may not consider “the sunk costs from past discovery and litigation, or the 
need to conduct further discovery if the class is not certified.”  Id. at 254-57.  Consideration of 
sunk costs would improperly “place a thumb on th e scale in favor of a numerosity finding for no 
reason other than the fact that the complex natu re of a case resulted in the class certification 
decision being deferred for years.”  Id. at 255. 
Plaintiffs contend that judicial economy concerns favor class certification because joinder 
would result in “greatly expanded discovery,” including document production and depositions 
from each joined plaintiff, a multiplication of e xperts (and thus expert reports, depositions, and 
expert-related disputes), and a complex trial with “the prospect” of multiple opening and closing 
statements and each parties’ participation at all stages of the trial.  Plfs. Br. at 12-13.  Defendants 
counter that each claimed effici ency is true of any other cas e where the class size raises a 
presumption against class certification, and that Plai ntiffs fail to “point to anything special about 
this case,” as is required to carry their burden.  Defs. Opp. at 22 (citing Modafinil, 837 F.3d at 249) 
(explaining that the numerosity requirement “calls for an inherently fact-based analysis,” requiring 
the court to “take into account th e context of the particular case.”) .  Defendants add that judicial 
economy weighs in favor of joinder because “fiv e named Plaintiffs have been jointly conducing 
this litigation for a decade,” incl uding filing joint motions and collectively retaining experts, and 
because this case is “pervasively characterized by individualized evidence,” thus any additional 
discovery, if necessary, would be targeted towards individualized transactions, whether this case 
proceeds as a class action or joinder.  Defs. Opp. at 23. 
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Plaintiffs have not carried th eir burden as to judicial econo my.  As Defendants note, the 
nature of the matter (two defendants competing on an individualized basis as to each plaintiff), 
and how it has proceeded to date (including the named Plai ntiffs’ joint conduc t), indicate that 
joinder is particularly  feasible here.   See Defs. Opp. at 22-24.  Plaintif fs have failed to counter 
these arguments, much less articulate that “the  class action mechanism is substantially more 
efficient than joinder of all parties.”  In re Modafinil, 837 F.3d at 254.  Moreover, while the Court 
is sympathetic to Plai ntiffs’ discovery-related concerns , “[j]udicial economy does not permit 
consideration of the sunk costs fr om past discovery and litigation, or the need to conduct further 
discovery if the class is not cert ified,” nor does it consider how de nial of class certification may 
further delay the case.    In re Modafinil, 837 F.3d at 254-56.  Thus, judicial economy concerns 
weigh against class certification.   
2. Ability and Motivation to Litigate as Joined Plaintiffs 
Whether Plaintiffs have the ability and motivation to litigate as joined plaintiffs “primarily 
involves an examination of the stakes at issue for the individual claims and the complexity of the 
litigation, which typically will correlate with the costs of pursuing these claims.”  In re Modafinil, 
837 F.3d at 257.  Plaintiffs argue that this factor weighs in favor of class certification because “[a] 
number of the class members lack the incentive and practicable ability to institute individual suits 
because their claims are not  large enough to make an individual suit practicable, particularly in 
light of fears of possible retaliation from a major supplier.”  Plfs. Br. at 15 (emphases added).  
According to Plaintiffs, many of the class members have “negative value” claims because “[c]osts 
in complex antitrust cases of this sort easily  reach $3.7 million,” and trebled damages here are 
under $3.7 million for thirteen to sixteen of the thirty-two brand purchasers, and under $1 million 
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for seven of the thirty-two brand purchasers. 16  Plfs. Br. at 15-16.  Plaintiffs also direct the Court 
to Modafinil, a case where class certification was denied and approximately two-thirds of the class 
proceeded, and AndroGel and In re Zetia , cases where class certification was denied and 
approximately half of the class proceeded, to “demonstrate[] that joinder of all class members in a 
case like this is impracticable.”17   
At the outset, as Defendants note, Plaintiffs ’ arguments as to the costs associated with 
individual suits are misplaced because the “numer osity rule does not envision the alternative of 
individual suits ; it considers only the alternative of joinder”—a substantially less expensive 
process.  In re Modafinil , 837 F.3d at 258 (emphasis added); see Defs. Opp. at 21-22; see also 
Zangara v. Zager Fuchs, P.C., No. 17-6755, 2019 WL 6310056, at *3 (D.N.J. Nov. 25, 2019) (“At 
this stage, the choice is not between a class ac tion and twenty-six individual suits, but between a 
class action and joinder of the twenty-six proposed class members,” thus the plaintiff’s assertions 
as to individual suits were “misplaced”).  Acco rdingly, Plaintiffs’ negative value claims are 
untenable because even accepting Plaintiffs’ contention that the costs here could reach $3.7 million 
(for which Plaintiffs do not offer adequate sup port), Plaintiffs improperly assume that if the 
litigation were to proceed via joinder, each putative class member would spend the entire estimated 
$3.7 million.  See King Drug Co. of Florence, Inc. v. Cephalon, Inc., 06-1797, 2017 WL 3705715, 
at *10 (E.D. Pa. Aug. 28, 2017) (d iscounting the plaintiffs’ “ability  and motivation to litigate” 
 
16 A negative value claim is a “claim[ ] that coul d not be brought on an individual basis because 
the transaction costs of bringing an individual action exceed the potential relief.” In re Modafinil, 
837 F.3d at 257 n.21 (quoting In re Baby Prods. Antitrust Litig., 708 F.3d 163, 179 (3d Cir. 2013)). 
 
17 Plfs. Br. at 16-18 (citing In re Modafinil Antitrust Litig. , 837 F.3d 238 (3d Cir. 2016); In re 
AndroGel Antitrust Litig., No. 09-2084, 2018 WL 3424612 (N.D. Ga. July 16, 2018)); Plfs. Reply 
at 12-14 (citing In re Zetia (Ezetimibe) Antitrust Litig., No. 18-2836, 2022 WL 1577219 (E.D. Va. 
Jan. 25, 2022)). 
 
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arguments because they were based on the imprope r assumption that each putative class member 
would spend the entire amount estimated for trial); cf. In re Modafinil, 837 F.3d at 259 (“While it 
may be uneconomical for these cl aims to be pursued in indivi dual litigation, there has been no 
showing that it would be uneconomical for these [] class members to be i ndividually joined as 
parties in a traditional lawsuit.”).   
The Court is also not persuaded that the outcomes in Modafinil, AndroGel, and In re Zetia 
demonstrate that joinder is impracticable.  The question before the Court is not what percentage of 
class members in purportedly similar cases have litigated through joinder following the denial of 
class certification. 18  It is whether, in the context of this case, Plaintiffs have the ability and 
motivation to litigate via joinder.  As in Modafinil, “[t]his is not the typical class action where 
hundreds or thousands of claims are aggregated in order to ensure that the wrongdoer is held 
accountable and that the small cl aims are vindicated.” 837 F.3d at 259.  Instead, this matter 
involves a relatively small group of  large and sophisticated corpor ate plaintiffs, most of whom 
have claims worth over $1 million, and some of whom may be represented on a contingent basis.  
See Defs. Opp. at 20-22.  And “[e]ven if it [is] uneconomical for some . . . individual plaintiffs to 
join the suit,” the Court still has an obligation to consider all othe r relevant factors to determine 
whether to grant class status, “whi ch is an exception to the usual rule that litigation is conducted 
by and on behalf of the individual named parties only.”  In re Modafinil, 837 F.3d at 259 (internal 
citation and quotation marks omitted).  Furthermore, the Court does not credit Plaintiffs’ purported 
concern of “possible retaliation” because Plai ntiffs have offered no proof to support this 
contention.  See Plfs. Br. at 15; see also In re Modafinil, 837 F.3d at 257 n.20 (acknowledging that 
 
18 As Defendants note, “Plaintiff s’ argument confuses a party’s in dividual appetite for litigation 
with the practicability of the class members litigating through joinder.”  Defs. Opp. at 20 n.9. 
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“fear of retaliation may hinder the ability and motivation of a party,” but that “there was no [such] 
proof of any fear of retaliation”); see also Ortiz v. Goya Foods, Inc., 19-19003, 2022 WL 3053907, 
at *5 (D.N.J. Aug. 3, 2022) (affording no weight to  the plaintiffs’ argument that they “feared 
retaliation” and thus were not motivated to li tigate via joinder because there was no evidence 
suggesting that such a fear existed).  Thus, Plaintiffs have failed to demonstrate that the ability and 
motivation to litigate as joined plaintiffs weighs in favor of class certification.   
3. Additional Impracticability Factors 
The Court next considers the remaining impracticability factors, including the (1) financial 
resources of the class members; (2) geographic dispersion of class members; (3) ability to identify 
future claimants; and (4) whether the claims are for injunctive relief or for damages.” In re 
Modafinil, 837 F.3d at 253.  First, Plaintiffs offer no argument with respec t to the financial 
resources of the class members, while Defendants argue (albeit in passing) that the class consists 
of large and sophisticated corporate plaintiffs; thus, this fa ctor leans slightly in  favor of joinder.  
See Defs. Opp. at 9.  Next, the parties do not appear to dispute that the direct brand purchasers are 
geographically dispersed across 12 states; thus, the geographic disp ersion factor weighs against 
joinder.  See Plfs. Br. at 14-15; Plfs. Ex. 1 (D.E. 543-2).  Third, the parties are silent as to the 
ability to identify future claimants, and without more, the Court is not able to consider this factor.  
However, it appears that all potenti al claimants have already been identified.  Lastly, the parties 
do not raise arguments as to the relief sought within the context of this factor, but there appears to 
be no dispute that Plaintiffs seek damages, rather than injunctive relief, which weighs in favor of 
joinder.  Ortiz, 2022 WL 3053907, at *6; see also King Drug Co. of Florence, Inc. , 2017 WL 
3705715, at *7 (noting that “[t]his fact or weighs in favor of class certification where the claims 
are for injunctive relief rather than damages”  and “weighs against certification” where the 
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plaintiffs are not seeking injunctive relief).  In su m, the first and fourth factors weigh in favor of 
joinder, the second factor weighs against joinder, and without more, the Court is unable to analyze 
the third factor.  
IV. CONCLUSION 
Plaintiffs have not proven by a preponderance of the evidence that the class members are 
so numerous as to render joinder impracticab le.  Accordingly, Plain tiffs’ motion for class 
certification is DENIED.  An appropriate Order accompanies this Opinion. 
Dated: February 1, 2023  
 
 
__________________________  
 John Michael Vazquez, U.S.D.J. 
 
 
  
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