Opinion
CASE NUMBER MDL 1290 (TFH), CASE NUMBER 1:99-CV-01082.
February 13, 2002
ORDER AND FINAL JUDGMENT
This action (the "Action") having come before this Court for a hearing, as noticed, on November 29, 2001, pursuant to the Order Conditionally Certifying Settlement Class and Preliminarily Approving Proposed Settlement dated February 9, 2001 (the "Preliminary Approval Order") to consider and determine the matters set forth in the Preliminary Approval Order; due notice of the bearing having been published and given; all entities having objections to the proposed settlement (the "Settlement") set forth in the Stipulation of Settlement, dated January 29, 2001 (the "Settlement Agreement"), and described in the Notice of Settlement of Class Action (the "Notice"), having been given an opportunity to present such objections to the Court; all entities having been given an opportunity to request exclusion; and the Court having considered the matter, including all papers filed in connection therewith, and upon the oral presentation of counsel at the hearing; and good cause appearing therefor,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
1. The Court has jurisdiction over the subject matter of this litigation and over all of the parties.
2. The Court hereby confirms its Preliminary Approval Order and certifies the Settlement Class (as defined below) for settlement purposes only pursuant to Rule 23(a), (b)(3) and (c) of the Federal Rules of Civil Procedure. The Court further finds that the named plaintiffs are adequate class representatives for the Settlement Class, and that Robert S. Schachter of Zwerling, Schachter Zwerling, LLP and Bernard Persky of Goodkind Labaton Rudoff Sucharow LLP, appointed by this Court's Order of March 9, 2000 as co-lead counsel for the indirect purchaser cases, for purposes of the Settlement, are appointed as Indirect Purchaser Lead Counsel Richard W. Cohen of Lowey Dannenberg Bemporad Selinger, P.C. and Gary D. McCallister of Gary D. McCallister Associates, Ltd., for purposes of the Settlement, are designated as Third Party Payor Lead Class Counsel Indirect Purchaser Lead Counsel, Third Party Payor Lead Class Counsel and Pamela Slate of Slate Kennedy LLC and Jack C. Sando, Esq., for purposes of the Settlement, are designated as Class Counsel.
3. The Court finds that the named plaintiffs and Class Counsel have represented the Settlement Class adequately to satisfy the requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.
4. On or before July 9, 2001: (a) notice by publication, substantially in the form of Exhibit I to the Settlement Agreement, was published once in National Underwriter: Life Health/Financial Services Edition and in Benefit Compensation Solutions and posted on the internet; and (b) the Notice, Notice of Exclusion form and Proof of Claim form, substantially in the form of Exhibits D, E and G, respectively, to the Settlement Agreement, were mailed by first-class mail to the following that could be reasonably identified:
All Third Party Payors (as described below) that have reimbursed or otherwise paid, in whole or in part, for prescriptions of tablets of generic Lorazepam or generic Clorazepate (the "Drugs") filled during the period January 1, 1998 through December 31; 1999 (the "Class Period") for natural persons resident in Arizona, California, the District of Columbia, Florida, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York North Carolina, North Dakota, Pennsylvania, South Dakota, Tennessee, West Virginia and/or Wisconsin (the "United Wisconsin Jurisdictions") (the "Settlement Class"). "Third Party Payor" means any non-governmental entity that is (i) a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy or plan provides prescription drug coverage to natural persons, and is also (ii) at risk, pursuant to such contract, policy or plan, to pay or reimburse all or part of the cost of prescription drugs dispensed to natural persons covered by such contract, policy, or plan.
The foregoing is defined as the "Settlement Class." Such notice is hereby determined to be in full compliance with the requirements of Federal Rule of Civil Procedure 23 and of due process and is found to be the best notice practicable under the circumstances and to constitute due and sufficient notice to all entities entitled thereto.
5. Due and adequate notice of the proceedings having been given to the Settlement Class and a full opportunity having been offered to the Settlement Class to participate in the hearing, it is hereby determined that all Settlement Class Members (as defined below in ¶ 10) are bound by this Final Order and Judgment.
6. The Settlement Agreement and the Settlement set forth therein are hereby approved and confirmed as fair, adequate and reasonable, and in the best interests of the Settlement Class as a whole, and their terms satisfy Rule 23(e) of the Federal Rules of Civil Procedure and the requirements of due process.
7. The Settlement of this Action was not the product of collusion between the plaintiffs, defendants or SST Corporation (the "Parties") or each of their respective counsel, but rather was the result of bona fide and arm's-length negotiation conducted in good faith by the Parties and their counsel.
8. The Allocation and Distribution Plan previously filed with the Court is approved, and the Net Settlement Fund (as described in the Settlement Agreement) shall be distributed in the manner provided therein.
9. The Court hereby dismisses the extant complaint in this Action, with prejudice and without costs.
10. The term "Settlement Class Members," as used herein, includes all members of the Settlement Class, except those who have timely requested exclusion, as identified in Exhibit 1 hereto. Without any further action by anyone, the Settlement Class Members, on behalf of themselves, their past and present partners, officers, directors, agents, attorneys, owners, shareholders, trustees, beneficiaries, parents, subsidiaries, divisions and affiliates, and the heirs, executors, administrators, predecessors, successors and assigns of each of the foregoing (the "Releasors"), for good and sufficient consideration, are hereby deemed to have released and forever discharged each and every direct, individual, class, representative, derivative and other claim, right, action, allegation, demand, defense, counterclaim, issue, setoff liability, penalty, and cause of action of every nature and description whatsoever, "known or unknown, suspected or unsuspected, including (without limitation) all claims for damages, restitution, disgorgement or rescission, or any other legal or equitable relief, liquidated or unliquidated, which the Releasors, or any of them, had, now has or may hereafter have against the Releasees (as defined in the Settlement Agreement), or any of them, arising from or in connection with or in any way related, directly or indirectly, to any of the acts, facts, matters, transactions, events, occurrences, disclosures, statements, representations, omissions, or failures to act set forth, alleged, referred to or otherwise embraced in this Action or the Related Actions (as defined in the Settlement Agreement), including but not limited to claims arising under the statutory or common laws of the United States, any state, territory or other jurisdiction (whether domestic or foreign), or arising from or in any way related to this Action or the Related Actions, excepting only any claim to enforce the terms of the Settlement Agreement. Also expressly excluded from the Released Claims (as defined in the Settlement Agreement) are: (i) any and all claims by any Person (as defined in the Settlement Agreement) based upon payments or reimbursement for prescriptions of tablets of generic Lorazepam or tablets of generic Clorazepate filled during the Class Period for natural persons resident in the United States outside of the United Wisconsin Jurisdictions; (ii) any and all claims of members of the Settlement Class based upon their purchases of tablets of generic Lorazepam or tablets of generic Clorazepate directly from Mylan; and (iii) any and all claims for physical or bodily injury or defective products arising from any purchase of tablets of generic Lorazepam or tablets of generic Clorazepate.
11. Settlement Class Members are hereby severally and permanently barred and enjoined from filing, commencing, instituting, maintaining, prosecuting or participating in a lawsuit or any other proceeding against any of the Releasees involving or based on any of the Released Claims, either directly or indirectly, representatively, derivatively or in any other capacity.
12. Neither this Final Order and Judgment, the Settlement Agreement, nor any of its terms or the negotiations or papers related thereto shall constitute any evidence, or an admission by any Releasee, that any acts of wrongdoing have been committed, and they shall not be deemed to create any inference that there is any liability therefor. Neither this Final Order and Judgment, nor the Settlement Agreement nor any of its terms or the negotiations or papers related thereto shall be offered or received in evidence or used for any purpose whatsoever, in this or any other matter or proceeding in any court, administrative agency, arbitration, or other tribunal, other than as may be necessary to consummate or enforce the Settlement Agreement, the terms of the Settlement, or this Final Order and Judgment, or to obtain dismissal of any action asserting the Released Claims.
13. Without in any way affecting the finality of this Final Order, this Court hereby retains jurisdiction over the Action for the purposes of implementing and enforcing the terms of the Settlement Agreement, including the administration of the Settlement, as well as all matters relating to the terms of this Final Order and Judgment.
SO ORDERED
EXHIBIT 1 SCHEDULE OF OPT-OUTS
1. Aid Association For Lutherans;
2. American Family Life Assurance Company (AFLAC);
3. Blue Cross And Blue Shield of Massachusetts, Inc.*
4. Blue Cross and Blue Shield of Minnesota;
5. CHW Medical Foundation;
6. Craven County Health Dept. Rome Health-Hospice Agency;
7. Federated Mutual Insurance Company;
8. Health Care Service Corp., A Mutual Legal Reserve Co., Its Division Blue Cross Blue Shield of Illinois and Each of Its Self-Funded Plans That Do Not Claim In the Class **
9. Health Care Service Corp., A Mutual Legal Reserve Co., Its Division Blue Cross Blue Shield of New Mexico and Each of Its Self-Funded Plans That Do Not Claim In the Class **
10. Health Care Service Corp., A Mutual Legal Reserve Co., Its Division Blue Cross Blue Shield of Texas and Each of Its Self-Funded Plans That Do Not Claim In the Class **
11. Jack-Post Corporation;
12. Mercy Healthcare Sacramento;
13. Niles Precision Company; and
14. Sumitomo Electric Finance.
* Blue Cross And Blue Shield of Massachusetts, Inc. also purports to opt-out self-funded plans whose prescription benefit programs it administers (see attached Schedule A).
** Health Care Service Corp. also purports to opt-out unidentified self-funded plans whose prescription benefit programs it administers that do not make a claim upon the settlement.
SCHEDULE A
Acton, Town ofAcushnet Company
Adams Laundry Dry Cleaning Company
ADCOLE Corporation
Aerovox, Incorporated
Agar Supply Company, Inc.
Agawam, Town of
Allied Advertising Agency
American International College
Amherst, Town of
Andover, Town of
Anthony's Pier Four, Inc.
Arlington, Town of
Arnold Worldwide, Inc.
Athol Royslston Regional School District.
Atlantic Plywood Corporation
Attleboro, City Of
Back Bay Restaurant Group, Inc.
Bartlett Nuclear, Inc.
Bay State Milling Company
Baystate Health Systems
Bellingham, Town of
Berkshire Energy Resources
Berkshire Health Group
Berkshire Health Systems
Berkshire Industries, Incorporated
Beth Israel Deaconess Medical Center
Beverly, City of
Big Y Foods, Inc.
Boston Concessions Group, Inc.
Boston Gas Company
Boston Medical Center
Boston Red Sox
Boston Scientific Corporation
Boston University
Boston, City of
Bourne, Town of
Bradford Industries, Incorporated
Braintree, Town of (Active Employees)
Bristol County
Brockton Hospital
Brockton, City of
Brookline, Town of
BTR Sealing Systems, Inc.
Burlington, Town of
Cambridge, City of
Canton, Town of
Cape Cod Municipal Health Group
Channing L. Bete Company, Inc.
Charles Stark Draper Laboratory, Incorporated (Actives)
Charrette Corporation
Chelmsford, Town of
Chelsea, City of
Christmas Tree Shop, Inc.
Clean Harbors Environmental Services, Inc.
Comet Products, Incorporated
Crabtree Evelyn
Crane Company) Incorporated
Creoscitex America Inc.
Cumberland Farms
Cybex International
Cyrk Holdings, Inc.
Dartmouth, Town of
Deaconess-Glover Hospital
Deaconess-Nashoba Hospital
Deaconess-Waltham Hospital
Dean Foods Company
Demoulas Supermarkets, Inc.
Designs, Inc.
Dracut, Town of
Draper Labs (Charles Stark Draper Laboratory, Incorporated) (Retirees)
Dudley Charlton Regional School District
Duxbury, Town of
Easthampton, Town of
Erving Industries, Inc.
Everett, City of
Fairhaven, Town of
Fall River Gas Company
Fall River, City of
Fitchburg, City of
FleetBoston Financial
FLEXcon Company, Incorporated
Foodmaster Supermarkets
Fort James Corporation
Foxboro, Town Of
Framingham, Town of
Franklin County Regional Schools Health Group
Gardner, City of
General Hospital Corporation, The
Gillette Company, The
Goldman Group, The
Greater Lawrence Technical High School
Hampden Papers, Inc.
Hampshire County Group Insurance Trust
Hardigg Industries, Inc.
Hardwick Knitted Fabrics, Inc.
Harvard Management Company, Inc.
Harvard Medical Faculty Physicians
Harvard University (Faculty/Staff)
Harwich, Town of
Hasbro, Inc.
Haverhill, City of
HealthSouth Corporation
Higham, Town of
Holt And Bugbee Company
Hudson, Town of
IBEW Local 7 Health And Welfare Fund
Ingersoll Rand Company
Instron Corporation.
Interstate Brands Corporation
Interstate Electrical Services Corporation
Ionics, Incorporated
J.H. Maxymillian Affiliates, Incorporated
Jahn Foundry Corporation
James Russell Engineering Works, Inc.
Kayem, Foods, Inc.
L. Knife Son, Incorporated
Landmark Health Solutions
Lawrence, City of
Learning Company, Inc., The
Leominster, City of
Lexington, Town of
Littleton, Town of
Lowell, City of
Lynn, City of
Madico, Inc.
Malden Mills Industries, Inc.
Malden, City of
Marblehead, Town of
Massachusetts Bay Transportation Authority
Massachusetts Eye And Ear Infirmary
Massachusetts Institute of Technology (Faculty/Staff)
Massachusetts Institute of Technology (MITHP)
Massachusetts Society For The Prevention of Cruelty To Animals (MSPCA)
Maynard, Town of
Medway, Town of
Methods Machine Tools, Inc.
Methuen, Town of
Modern Dispersions
Montachusett Regional Vocational Technical School
Morrison, Mahoney Miller
Morton Hospital
Mount Auburn Foundation, Incorporated
Nantucket, Town And County of
Nashoba Regional School District
National Grid USA Service Company, Inc. On Behalf of National Grid USA Companies
New Bedford, City of
New England Baptist Hospital
New England Development
New England Neurological Associates
New England Newspapers, Inc.
Newton Wellesley Hospital
Norfolk County
North Adams Regional Hospital
North Adams, City of
North Andover, Town of
Northeast Metropolitan Regional Vocational School
Northeastern University
Northern New England Benefit Trust
Nova Biomedical
NSTAR
Ogden Resource Recovery Support Services, Incorporated
Orange, Town of
Osram Sylvania, Inc.
Peabody, City of
Pentucket Regional School District
Pipefitters Union Local #537 Trust Fund
Plymouth, Town of
Polaroid Corporation
PRI Automation
Quaker Fabric Corporation of Fall River
R.H. Long Motor Sales Co.
R.H. White Construction Company, Inc.
Ralph C. Maher Regional School District
Raytheon Company (Mass. Employees)
Renaissance Worldwide, Inc.
Republican Company
Revere, City of
Ro-Jacks Food Stores, Inc.
Russell Harrington Cutlery, Inc./Hyde Manufacturing
Salem, City of
Saugus, Town of
Savage Arms, Incorporated
Seaman Paper Company
Seekonk, Town of
Sexton Can Company
Sharon, Town of
Shawsheen Valley Technical High School
Sheet Metal Workers Union Local #63
Shipley Company
Sipex Corporation
Somerset, Town of
Somerville, City of
South Middlesex Regional Vocational School District
Southcoast Health Systems
Specialty Loose Leaf, Inc.
Stop Shop Companies, The
Stoughton, Town of
Sudbury, Town of
Sullivan Paper Company, Inc.
Swampscott, Town of
Swank, Inc.
Swansea, Town of
Taunton, City of
Teamsters Local Union #653 Health, Welfare Insurance Fund
Teamsters Union Local #122 Health And Welfare Fund
Teledyne Rodney Metals
Tewksbury, Town of
Thomcast Communications, Inc.
TJX Companies, Inc., The
Triton Regional School District
Tufts University
U Mass. Memorial Health Care
Uniplast Films, Incorporated/Pierson Industries, Incorporated
United Lens Company, Inc.
Valleyhead School
Vertex Pharmaceuticals, Inc.
Vialog
Wakefield, Town of
Walpole, Town of
Waltham, City of
Waters Technologies Corporation
Webster, Town of
Wentworth Institute
West Springfield, Town of (Active Employees)
West Suburban Health Group
Westford, Town of
Weston, Town of
Wilbraham Monson Academy
Wilmington, Town of
Wyman Gordon Company