Opinion
MDL NO. 2:18md2836
2023-04-21
IN RE: ZETIA (EZETIMIBE) ANTITRUST LITIGATION
Michael Andrew Glasser, Esquire, William Hanes Monroe, Jr., Esquire, Kip Andrew Harbison, Esquire, Marc Christian Greco, Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Ethan Janus Barlieb, Esquire, Joseph Howard Meltzer, Esquire, Terrence Scott Ziegler, Esquire, Kessler Topaz Meltzer & Check LLP, 280 King of Prussia Road, Radnor, PA 19087, Joseph Michael Vanek, Esquire, Alberto Rodriguez, Esquire, David Paul Germaine, Esquire, John Paul Bjork, Esquire, Sperling & Slater, P.C., 55 W. Monroe Street, Suite 3200, Chicago, IL 60603 Steve Shadowen, Esquire, Matthew Charles Weiner, Esquire, Hilliard & Shadowen LLP, 1135 W. 6th Street, Suite 125, Austin, TX 78703, Hannah Schwarzschild, Esquire, Kristen Anne Johnson, Esquire, Thomas Matthew Sobol, Esquire, Erin Cathleen Burns, Esquire, Rachel Downey, Esquire, Hagens Berman Sobol Shapiro LLP, 55 Cambridge Parkway, Suite 301, Cambridge, MA 02142, Jeffrey Robert Moran, Esquire, Vanek, Vickers & Masini, P.C., 55 W. Monroe, Suite 3500, Chicago, IL 60603, Sharon Robertson, Esquire, Cohen Milstein Sellers & Toll PLLC, 88 Pine Street, 14th Floor, New York, NY 10005, Daniel Evan Rubenstein, Esquire, John Radice, Esquire, April Dawn Lambert, Esquire, Radice Law Firm, P.C., 475 Wall Street, Princeton, NJ 08540, Debra Josephson, Esquire, Karen Sharp Halbert, Esquire, Sarah Elizabeth DeLoach, Esquire, Stephanie Smith, Esquire, Roberts Law Firm, P.A., P. O. Box 241790, Little Rock, AR 72223, Counsel for Plaintiff: FWK Holdings, LLC. Linda Phyllis Nussbaum, Esquire, Nussbaum Law Group P.C., 1211 Avenue of the Americas, Floor 40, New York, NY 10036, Jayne Arnold Goldstein, Esquire, Shepherd, Finkelman, Miller & Shah, LLP, 1625 North Commerce Parkway, Suite 320, Fort Lauderdale, FL 33326, Michael Andrew Glasser, Esquire, William Hanes Monroe, Jr., Esquire, Kip Andrew Harbison, Esquire, Marc Christian Greco, Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Counsel for Plaintiff: CESAR CASTILLO, INC., Individually and on behalf of all those similarly situated. Barry Steven Taus, Esquire, Archana Tamoshunas, Esquire, Kevin Landau, Esquire, Taus, Cebulash & Landau LLP, 123 William Street, Suite 1900a, New York, NY 10038, David Francis Sorensen, Esquire, Zachary David Caplan, Esquire, Berger & Montague, PC, 1622 Locust Street, Philadelphia, PA 19103, Ellen Toporoff Noteware, Esquire, Karissa Joelle Sauder, Esquire, Berger Montague, PC, 1818 Market Street, Suite 3600, Philadelphia, PA 19103, Peter Russell Kohn, Esquire, Joseph Thomas Lukens, Esquire, Faruqi & Faruqi, LLP, One Penn Center, Suite 1550, Philadelphia, PA 19103, Bradley Joseph Demuth, Esquire, Faruqi & Faruqi, LLP, 685 Third Avenue, 26th Floor, New York, NY 10017, Michael Andrew Glasser, Esquire, William Hanes Monroe, Jr., Esquire, Kip Andrew Harbison, Esquire, Marc Christian Greco, Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Counsel for Plaintiff: Rochester Drug Cooperative, Inc., on behalf of itself and all others similarly situated. Christine A. Williams, Esquire, Kevin Jermone Funk, Esquire, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Adam Eric Polk, Esquire, Christina Hildegard Connolly Sharp, Esquire, Girard Sharp LLP, 601 California Street, Suite 1400, San Francisco, CA 94108, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: Sergeants Benevolent Association Health & Welfare Fund, on behalf of itself and all others similarly situated. Susan Rebecca Podolsky, Esquire, The Law Offices of Susan R. Podolsky, 1800 Diagnal Road, Suite 600, Alexandria, VA 22314, Gregory Scott Asciolla, Esquire, Robin Ann van der Meulen, Esquire, Labaton Sucharow LLP, 140 Broadway, New York, NY 10005, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: UFCW Local 1500 Welfare Fund, on behalf of itself and all others similarly situated. Joshua Heath Grabar, Esquire, Grabar Law Office, 1735 Market Street, Suite 3750, Philadelphia, PA 19103, Marc Howard Edelson, Esquire, Edelson & Associates LLC, 3 Terry Drive, Suite 205, Newtown, PA 18940, Susan Rebecca Podolsky, Esquire, The Law Offices of Susan R. Podolsky, 1800 Diagnal Road, Suite 600, Alexandria, VA 22314, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: Philadelphia Federation of Teachers Health and Welfare Fund. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Michael M. Buchman, Esquire, Jacob Olawale Onile-Ere, Esquire, John Maxwell Shaw, Esquire, Motley Rice, LLC, 777 Third Avenue, 27th Floor, New York, NY 10017, Lance Victor Oliver, Esquire, Motley Rice LLC, 28 Bridgeside Boulevard, Mt. Pleasant, SC 29464, Counsel for Plaintiff: City of Providence, Rhode Island on its own behalf of all others similarly situated. Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Counsel for Plaintiff: Law Enforcement Health Benefits Inc. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Kathleen Ellen Boychuck, Esquire, Lori Ann Fanning, Esquire, Marvin Alan Miller, Esquire, Matthew Eric Van Tine, Esquire, Miller Law LLC, 115 South LaSalle Street, Suite 2910, Chicago, IL 60603, Counsel for Plaintiff: Painters District Council No. 30 Health and Welfare Fund, on behalf of itself and all others similarly situated. Christine A. Williams, Esquire, Kevin Jermone Funk, Esquire, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Heidi Marie Silton, Esquire, Karen Hanson Riebel, Esquire, Lockridge Grindal Nauen PLLP, 100 Washington Ave. S., Suite 2200, Minneapolis, MN 55401, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: International Union of Operating Engineers Local 49 Health and Welfare Fund on behalf of itself and all others similarly situated. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiffs: Walgreen Co., The Kroger Co., Albertsons Companies, Inc., HEB Grocery Company L.P. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiff: The Kroger Co. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiff: Albertsons Companies, Inc. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiff: HEB Grocery Company L.P. Ashley Marie Bond, Esquire, John Peter Coyle, Esquire, Jon Robert Stickman, Esquire, Kenneth Matthew Holmboe, Esquire, Duncan & Allen, 1730 Rhode Island Ave., NW, Suite 700, Washington, DC 20036, Jason Scott Hartley, Esquire, Hartley LLP, 550 West C St., Suite 1750, San Diego, CA 92101, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Counsel for Plaintiff: Turlock Irrigation District, Individually and on behalf of and on behalf of all those similarly situated. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Brian Brooks, Esquire, Brian Murray, Esquire, Gregory Linkh, Esquire, Lee Albert, Esquire, Glancy Prongay & Murray LLP, 230 Park Avenue, Suite 530, New York, NY 10169, Counsel for Plaintiff: The Uniformed Firefighters' Association of Greater New York Security Benefit Fund. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Brian Murray, Esquire, Gregory Linkh, Esquire, Lee Albert, Esquire, Glancy Prongay & Murray LLP, 230 Park Avenue, Suite 530, New York, NY 10169, Counsel for Plaintiff: The Retired Firefighters' Association Security Benefit Fund of the Uniformed Firefighters' Association on behalf of themselves and all others similarly situated. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Alexander John Egervary, Esquire, Barry Lee Refsin, Esquire, Caitlin Violet Dobbs McHugh, Esquire, Zachary Matthew Winkler, Esquire, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 27th Floor, Philadelphia, PA 19103, Eric Lawrence Bloom, Esquire, Hangley Aronchick Segal Pudlin & Schiller, 2805 Old Post Road, Suite 100, Harrisburg, PA 17110, Counsel for Plaintiff: Rite Aid Corporation. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Alexander John Egervary, Esquire, Barry Lee Refsin, Esquire, Caitlin Violet Dobbs McHugh, Esquire, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 27th Floor, Philadelphia, PA 19103, Eric Lawrence Bloom, Esquire, Hangley Aronchick Segal Pudlin & Schiller, 2805 Old Post Road, Suite 100, Harrisburg, PA 17110, Counsel for Plaintiff: Rite Aid Hdqtrs. Corp. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Caitlin Violet Dobbs McHugh, Esquire, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 27th Floor, Philadelphia, PA 19103, Counsel for Plaintiff: CVS Pharmacy, Inc. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: All End Payer Plaintiffs. Amy Lynn Neuhardt, Esquire, Hamish Hume, Esquire, Michael Scott Mitchell, Esquire, Boies Schiller Flexner, LLP, 1401 New York Avenue, NW, Washington, DC 20005, Eric Buetzow, Esquire, Judith A. Zahid, Esquire, Zelle LLP, 555 12th Street, Suite 1230, Oakland, CA 94607, James Robertson Martin, Esquire, Jennifer Duncan Hackett, Esquire, Zelle LLP, 1775 Pennsylvania Avenue, NW, Suite 375, Washington, DC 20006, William Bornstein, Esquire, Zelle LLP, 500 Washington Ave South, Suite 4000, Minneapolis, MN 55415, Counsel for Plaintiff: United Healthcare Services, Inc. Bethany Jean Fogerty, Esquire, Brett Alexander Spain, Esquire, Willcox & Savage PC, Wells Fargo Center, 440 Monticello Avenue, Suite 2200, Norfolk, VA 23510, Kent A. Gardiner, Esquire, Mark M. Supko, Esquire, Vincent Galluzzo, Esquire, Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004, Daniel Allen Sasse, Esquire, Tiffanie L. McDowell, Esquire, Crowell & Moring LLP, 3 Park Plaza, 20th Floor, Irvine, CA 92614, Counsel for Plaintiff: Kaiser Foundation Health Plan, Inc. Bethany Jean Fogerty, Esquire, Brett Alexander Spain, Esquire, Willcox & Savage PC, Wells Fargo Center, 440 Monticello Avenue, Suite 2200, Norfolk, VA 23510, Preetha Chakrabarti, Esquire, Crowell & Moring LLP, 590 Madison Avenue, 20th Floor, New York, NY 10022, Mark M. Supko, Esquire, Vincent Galluzzo, Esquire, Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004, Daniel Allen Sasse, Esquire, Tiffanie L. McDowell, Esquire, Crowell & Moring LLP, 3 Park Plaza, 20th Floor, Irvine, CA 92614, Counsel for Plaintiffs: Humana Inc., Centene Corporation, Wellcare Health Plans, Inc., New York Quality Healthcare Corporation, doing business as Fidelis Care, Health Net, LLC. Stephen Edward Noona, Esquire, Kaufman & Canoles, P.C., 150 W. Main Street, Suite 2100, Norfolk, VA 23510, Christopher Dean Dusseault, Esquire, Deborah Lynn Stein, Esquire, Marissa Blair Moshell, Esquire, Samuel Grant Liversidge, Esquire, Timothy Patrick Best, Esquire, Sarah Margaret Kushner, Esquire, Jillian London, Esquire, Meredith Sheree Simons, Esquire, Gibson Dunn & Crutcher LLP, 333 South Grand Avenue, 46th Floor, Los Angeles, CA 90071, Eric Jonathan Stock, Esquire, Gibson Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193, Veronica Smith Lewis, Esquire, Ashley Elizabeth Johnson, Esquire, Gibson Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas, TX 75201, Caeli Anne Higney, Esquire, Gibson Dunn & Crutcher LLP, 555 Mission Street, Suite 3000, San Francisco, CA 94105-0921, Stephen Christopher Whittaker, Esquire, Gibson Dunn & Crutcher LLP, 3161 Michelson Drive, Irvine, CA 92612, Jennifer Kirsten Bracht, Esquire, Gibson Dunn & Crutcher LLP, 1801 California Street, Suite 4200, Denver, CO 80202, Jennifer Laura Greenblatt, Esquire, Tarek Ismail, Esquire, Goldman Ismail Tomaselli Breenan & Baum LLP, 200 South Wacker Drive, 22nd Floor, Chicago, IL 60606, Counsel for Defendants: Merck & Co., Inc., Merck Sharp & Dohme Corp., Schering-Plough Corporation, Schering Corporation, MSP Singapore Co. LLC. Jay Phillip Lefkowitz, Esquire, Devora Whitman Allon, Esquire, Kevin Michael Neylan, Jr., Esquire, Patrick James Gallagher, Esquire, Ahson T. Azmat, Esquire, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022, Nolan M. Leuthauser, Esquire, James R. P. Hileman, Esquire, Kirkland & Ellis LLP, 300 North LaSalle St., Suite 2400, Chicago, IL 60654, Dustin Mitchell Paul, Esquire, Richard Hooper Ottinger, Esquire, Edward James Powers, Esquire, Woods Rogers Vandeventer Black, 101 W. Main Street, Suite 500, Norfolk, VA 23510, Samantha Maxfield Lerner, Esquire, Winston & Strawn LLP, 35 W. Wacker Drive, Chicago, IL 60601-9703, Counsel for Defendants: Glenmark Pharmaceuticals, Ltd., Glenmark Generics Inc., USA. Bernard Marcus, Esquire, Brian Hill, Esquire, Erin Gibson Allen, Esquire, Moira Cain-Mannix, Esquire, Lauren Alexis Melfa Catanzarite, Esquire, Marcus & Shapira LLP, 301 Grant Street, One Oxford Centre, 35th Floor, Pittsburgh, PA 15219-6401, Consolidated Plaintiff: Giant Eagle, Inc. Bruce E. Gerstein, Esquire, David Barry Rochelson, Esquire, Kimberly M. Hennings, Esquire, Garwin Gerstein & Fisher LLP, 88 Pine Street, 10th Floor, New York, NY 10005, John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, William H. Monroe, Jr., Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Susan Segura, Esquire, Smith Segura Raphael & Leger LLP, 221 Ansley Boulevard, Alexandria, LA 71303, Consolidated Plaintiffs: Burlington Drug Company, Inc., Dakota Drug, Inc., J M Smith Corporation, Louisiana Wholesale Drug Co., Inc., North Carolina Mutual Wholesale Drug Company, Prescription Supply, Inc., Value Drug Company.
Michael Andrew Glasser, Esquire, William Hanes Monroe, Jr., Esquire, Kip Andrew Harbison, Esquire, Marc Christian Greco, Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Ethan Janus Barlieb, Esquire, Joseph Howard Meltzer, Esquire, Terrence Scott Ziegler, Esquire, Kessler Topaz Meltzer & Check LLP, 280 King of Prussia Road, Radnor, PA 19087, Joseph Michael Vanek, Esquire, Alberto Rodriguez, Esquire, David Paul Germaine, Esquire, John Paul Bjork, Esquire, Sperling & Slater, P.C., 55 W. Monroe Street, Suite 3200, Chicago, IL 60603 Steve Shadowen, Esquire, Matthew Charles Weiner, Esquire, Hilliard & Shadowen LLP, 1135 W. 6th Street, Suite 125, Austin, TX 78703, Hannah Schwarzschild, Esquire, Kristen Anne Johnson, Esquire, Thomas Matthew Sobol, Esquire, Erin Cathleen Burns, Esquire, Rachel Downey, Esquire, Hagens Berman Sobol Shapiro LLP, 55 Cambridge Parkway, Suite 301, Cambridge, MA 02142, Jeffrey Robert Moran, Esquire, Vanek, Vickers & Masini, P.C., 55 W. Monroe, Suite 3500, Chicago, IL 60603, Sharon Robertson, Esquire, Cohen Milstein Sellers & Toll PLLC, 88 Pine Street, 14th Floor, New York, NY 10005, Daniel Evan Rubenstein, Esquire, John Radice, Esquire, April Dawn Lambert, Esquire, Radice Law Firm, P.C., 475 Wall Street, Princeton, NJ 08540, Debra Josephson, Esquire, Karen Sharp Halbert, Esquire, Sarah Elizabeth DeLoach, Esquire, Stephanie Smith, Esquire, Roberts Law Firm, P.A., P. O. Box 241790, Little Rock, AR 72223, Counsel for Plaintiff: FWK Holdings, LLC. Linda Phyllis Nussbaum, Esquire, Nussbaum Law Group P.C., 1211 Avenue of the Americas, Floor 40, New York, NY 10036, Jayne Arnold Goldstein, Esquire, Shepherd, Finkelman, Miller & Shah, LLP, 1625 North Commerce Parkway, Suite 320, Fort Lauderdale, FL 33326, Michael Andrew Glasser, Esquire, William Hanes Monroe, Jr., Esquire, Kip Andrew Harbison, Esquire, Marc Christian Greco, Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Counsel for Plaintiff: CESAR CASTILLO, INC., Individually and on behalf of all those similarly situated. Barry Steven Taus, Esquire, Archana Tamoshunas, Esquire, Kevin Landau, Esquire, Taus, Cebulash & Landau LLP, 123 William Street, Suite 1900a, New York, NY 10038, David Francis Sorensen, Esquire, Zachary David Caplan, Esquire, Berger & Montague, PC, 1622 Locust Street, Philadelphia, PA 19103, Ellen Toporoff Noteware, Esquire, Karissa Joelle Sauder, Esquire, Berger Montague, PC, 1818 Market Street, Suite 3600, Philadelphia, PA 19103, Peter Russell Kohn, Esquire, Joseph Thomas Lukens, Esquire, Faruqi & Faruqi, LLP, One Penn Center, Suite 1550, Philadelphia, PA 19103, Bradley Joseph Demuth, Esquire, Faruqi & Faruqi, LLP, 685 Third Avenue, 26th Floor, New York, NY 10017, Michael Andrew Glasser, Esquire, William Hanes Monroe, Jr., Esquire, Kip Andrew Harbison, Esquire, Marc Christian Greco, Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Counsel for Plaintiff: Rochester Drug Cooperative, Inc., on behalf of itself and all others similarly situated. Christine A. Williams, Esquire, Kevin Jermone Funk, Esquire, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Adam Eric Polk, Esquire, Christina Hildegard Connolly Sharp, Esquire, Girard Sharp LLP, 601 California Street, Suite 1400, San Francisco, CA 94108, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: Sergeants Benevolent Association Health & Welfare Fund, on behalf of itself and all others similarly situated. Susan Rebecca Podolsky, Esquire, The Law Offices of Susan R. Podolsky, 1800 Diagnal Road, Suite 600, Alexandria, VA 22314, Gregory Scott Asciolla, Esquire, Robin Ann van der Meulen, Esquire, Labaton Sucharow LLP, 140 Broadway, New York, NY 10005, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: UFCW Local 1500 Welfare Fund, on behalf of itself and all others similarly situated. Joshua Heath Grabar, Esquire, Grabar Law Office, 1735 Market Street, Suite 3750, Philadelphia, PA 19103, Marc Howard Edelson, Esquire, Edelson & Associates LLC, 3 Terry Drive, Suite 205, Newtown, PA 18940, Susan Rebecca Podolsky, Esquire, The Law Offices of Susan R. Podolsky, 1800 Diagnal Road, Suite 600, Alexandria, VA 22314, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: Philadelphia Federation of Teachers Health and Welfare Fund. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Michael M. Buchman, Esquire, Jacob Olawale Onile-Ere, Esquire, John Maxwell Shaw, Esquire, Motley Rice, LLC, 777 Third Avenue, 27th Floor, New York, NY 10017, Lance Victor Oliver, Esquire, Motley Rice LLC, 28 Bridgeside Boulevard, Mt. Pleasant, SC 29464, Counsel for Plaintiff: City of Providence, Rhode Island on its own behalf of all others similarly situated. Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Counsel for Plaintiff: Law Enforcement Health Benefits Inc. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Kathleen Ellen Boychuck, Esquire, Lori Ann Fanning, Esquire, Marvin Alan Miller, Esquire, Matthew Eric Van Tine, Esquire, Miller Law LLC, 115 South LaSalle Street, Suite 2910, Chicago, IL 60603, Counsel for Plaintiff: Painters District Council No. 30 Health and Welfare Fund, on behalf of itself and all others similarly situated. Christine A. Williams, Esquire, Kevin Jermone Funk, Esquire, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Heidi Marie Silton, Esquire, Karen Hanson Riebel, Esquire, Lockridge Grindal Nauen PLLP, 100 Washington Ave. S., Suite 2200, Minneapolis, MN 55401, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: International Union of Operating Engineers Local 49 Health and Welfare Fund on behalf of itself and all others similarly situated. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiffs: Walgreen Co., The Kroger Co., Albertsons Companies, Inc., HEB Grocery Company L.P. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiff: The Kroger Co. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiff: Albertsons Companies, Inc. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Anna Theresa Neill, Esquire, Lauren Carol Ravkind, Esquire, Richard Alan Arnold, Esquire, Scott Eliot Perwin, Esquire, Kenny Nachwalter, P.A., 1441 Brickell Ave., Suite 1100, Miami, FL 33131, Joshua Barton Gray, Esquire, Kenny Nachwalter, P.A., 1100 Pennsylvania Ave., NW, 3rd Floor, Washington, DC 20004, Counsel for Plaintiff: HEB Grocery Company L.P. Ashley Marie Bond, Esquire, John Peter Coyle, Esquire, Jon Robert Stickman, Esquire, Kenneth Matthew Holmboe, Esquire, Duncan & Allen, 1730 Rhode Island Ave., NW, Suite 700, Washington, DC 20036, Jason Scott Hartley, Esquire, Hartley LLP, 550 West C St., Suite 1750, San Diego, CA 92101, Wyatt B. Durrette, Jr., Esquire, Durrette Arkema Gerson & Gill PC, 1111 East Main Street, 16th Floor, Richmond, VA 23219, Counsel for Plaintiff: Turlock Irrigation District, Individually and on behalf of and on behalf of all those similarly situated. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Brian Brooks, Esquire, Brian Murray, Esquire, Gregory Linkh, Esquire, Lee Albert, Esquire, Glancy Prongay & Murray LLP, 230 Park Avenue, Suite 530, New York, NY 10169, Counsel for Plaintiff: The Uniformed Firefighters' Association of Greater New York Security Benefit Fund. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Brian Murray, Esquire, Gregory Linkh, Esquire, Lee Albert, Esquire, Glancy Prongay & Murray LLP, 230 Park Avenue, Suite 530, New York, NY 10169, Counsel for Plaintiff: The Retired Firefighters' Association Security Benefit Fund of the Uniformed Firefighters' Association on behalf of themselves and all others similarly situated. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Alexander John Egervary, Esquire, Barry Lee Refsin, Esquire, Caitlin Violet Dobbs McHugh, Esquire, Zachary Matthew Winkler, Esquire, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 27th Floor, Philadelphia, PA 19103, Eric Lawrence Bloom, Esquire, Hangley Aronchick Segal Pudlin & Schiller, 2805 Old Post Road, Suite 100, Harrisburg, PA 17110, Counsel for Plaintiff: Rite Aid Corporation. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Alexander John Egervary, Esquire, Barry Lee Refsin, Esquire, Caitlin Violet Dobbs McHugh, Esquire, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 27th Floor, Philadelphia, PA 19103, Eric Lawrence Bloom, Esquire, Hangley Aronchick Segal Pudlin & Schiller, 2805 Old Post Road, Suite 100, Harrisburg, PA 17110, Counsel for Plaintiff: Rite Aid Hdqtrs. Corp. John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, Caitlin Violet Dobbs McHugh, Esquire, Hangley Aronchick Segal Pudlin & Schiller, One Logan Square, 27th Floor, Philadelphia, PA 19103, Counsel for Plaintiff: CVS Pharmacy, Inc. Alan Brody Rashkind, Esquire, James Arthur Cales III, Esquire, Furniss Davis Rashkind & Saunders PC, 6160 Kempsville Circle, Suite 341B, Norfolk, VA 23502, Counsel for Plaintiff: All End Payer Plaintiffs. Amy Lynn Neuhardt, Esquire, Hamish Hume, Esquire, Michael Scott Mitchell, Esquire, Boies Schiller Flexner, LLP, 1401 New York Avenue, NW, Washington, DC 20005, Eric Buetzow, Esquire, Judith A. Zahid, Esquire, Zelle LLP, 555 12th Street, Suite 1230, Oakland, CA 94607, James Robertson Martin, Esquire, Jennifer Duncan Hackett, Esquire, Zelle LLP, 1775 Pennsylvania Avenue, NW, Suite 375, Washington, DC 20006, William Bornstein, Esquire, Zelle LLP, 500 Washington Ave South, Suite 4000, Minneapolis, MN 55415, Counsel for Plaintiff: United Healthcare Services, Inc. Bethany Jean Fogerty, Esquire, Brett Alexander Spain, Esquire, Willcox & Savage PC, Wells Fargo Center, 440 Monticello Avenue, Suite 2200, Norfolk, VA 23510, Kent A. Gardiner, Esquire, Mark M. Supko, Esquire, Vincent Galluzzo, Esquire, Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004, Daniel Allen Sasse, Esquire, Tiffanie L. McDowell, Esquire, Crowell & Moring LLP, 3 Park Plaza, 20th Floor, Irvine, CA 92614, Counsel for Plaintiff: Kaiser Foundation Health Plan, Inc. Bethany Jean Fogerty, Esquire, Brett Alexander Spain, Esquire, Willcox & Savage PC, Wells Fargo Center, 440 Monticello Avenue, Suite 2200, Norfolk, VA 23510, Preetha Chakrabarti, Esquire, Crowell & Moring LLP, 590 Madison Avenue, 20th Floor, New York, NY 10022, Mark M. Supko, Esquire, Vincent Galluzzo, Esquire, Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004, Daniel Allen Sasse, Esquire, Tiffanie L. McDowell, Esquire, Crowell & Moring LLP, 3 Park Plaza, 20th Floor, Irvine, CA 92614, Counsel for Plaintiffs: Humana Inc., Centene Corporation, Wellcare Health Plans, Inc., New York Quality Healthcare Corporation, doing business as Fidelis Care, Health Net, LLC. Stephen Edward Noona, Esquire, Kaufman & Canoles, P.C., 150 W. Main Street, Suite 2100, Norfolk, VA 23510, Christopher Dean Dusseault, Esquire, Deborah Lynn Stein, Esquire, Marissa Blair Moshell, Esquire, Samuel Grant Liversidge, Esquire, Timothy Patrick Best, Esquire, Sarah Margaret Kushner, Esquire, Jillian London, Esquire, Meredith Sheree Simons, Esquire, Gibson Dunn & Crutcher LLP, 333 South Grand Avenue, 46th Floor, Los Angeles, CA 90071, Eric Jonathan Stock, Esquire, Gibson Dunn & Crutcher LLP, 200 Park Avenue, New York, NY 10166-0193, Veronica Smith Lewis, Esquire, Ashley Elizabeth Johnson, Esquire, Gibson Dunn & Crutcher LLP, 2100 McKinney Avenue, Suite 1100, Dallas, TX 75201, Caeli Anne Higney, Esquire, Gibson Dunn & Crutcher LLP, 555 Mission Street, Suite 3000, San Francisco, CA 94105-0921, Stephen Christopher Whittaker, Esquire, Gibson Dunn & Crutcher LLP, 3161 Michelson Drive, Irvine, CA 92612, Jennifer Kirsten Bracht, Esquire, Gibson Dunn & Crutcher LLP, 1801 California Street, Suite 4200, Denver, CO 80202, Jennifer Laura Greenblatt, Esquire, Tarek Ismail, Esquire, Goldman Ismail Tomaselli Breenan & Baum LLP, 200 South Wacker Drive, 22nd Floor, Chicago, IL 60606, Counsel for Defendants: Merck & Co., Inc., Merck Sharp & Dohme Corp., Schering-Plough Corporation, Schering Corporation, MSP Singapore Co. LLC. Jay Phillip Lefkowitz, Esquire, Devora Whitman Allon, Esquire, Kevin Michael Neylan, Jr., Esquire, Patrick James Gallagher, Esquire, Ahson T. Azmat, Esquire, Kirkland & Ellis LLP, 601 Lexington Avenue, New York, NY 10022, Nolan M. Leuthauser, Esquire, James R. P. Hileman, Esquire, Kirkland & Ellis LLP, 300 North LaSalle St., Suite 2400, Chicago, IL 60654, Dustin Mitchell Paul, Esquire, Richard Hooper Ottinger, Esquire, Edward James Powers, Esquire, Woods Rogers Vandeventer Black, 101 W. Main Street, Suite 500, Norfolk, VA 23510, Samantha Maxfield Lerner, Esquire, Winston & Strawn LLP, 35 W. Wacker Drive, Chicago, IL 60601-9703, Counsel for Defendants: Glenmark Pharmaceuticals, Ltd., Glenmark Generics Inc., USA. Bernard Marcus, Esquire, Brian Hill, Esquire, Erin Gibson Allen, Esquire, Moira Cain-Mannix, Esquire, Lauren Alexis Melfa Catanzarite, Esquire, Marcus & Shapira LLP, 301 Grant Street, One Oxford Centre, 35th Floor, Pittsburgh, PA 15219-6401, Consolidated Plaintiff: Giant Eagle, Inc. Bruce E. Gerstein, Esquire, David Barry Rochelson, Esquire, Kimberly M. Hennings, Esquire, Garwin Gerstein & Fisher LLP, 88 Pine Street, 10th Floor, New York, NY 10005, John Frederick Sawyer, Esquire, Wolcott Rivers Gates P.C., Convergence Center IV, 200 Bendix Road, Suite 300, Virginia Beach, VA 23452, William H. Monroe, Jr., Esquire, Glasser & Glasser PLC, 580 E. Main Street, Suite 600, Norfolk, VA 23510, Susan Segura, Esquire, Smith Segura Raphael & Leger LLP, 221 Ansley Boulevard, Alexandria, LA 71303, Consolidated Plaintiffs: Burlington Drug Company, Inc., Dakota Drug, Inc., J M Smith Corporation, Louisiana Wholesale Drug Co., Inc., North Carolina Mutual Wholesale Drug Company, Prescription Supply, Inc., Value Drug Company. MEMORANDUM OPINION AND ORDER Rebecca Beach Smith, Senior United States District Judge
This matter comes before the court on the Direct Purchaser Plaintiffs ("DPPs") and End Payor Plaintiffs ("EPPs") objections, ECF No. 2026, as well as the Retailer Plaintiffs objections, ECF No. 2029, [hereinafter Plaintiffs' Objections or Objections], to Magistrate Judge Douglas E. Miller's Memorandum Opinion and Order, filed on March 17, 2023. ECF No. 2000 (Order). In his Order, Judge Miller denied Plaintiffs' Motion in Limine No. 19, ECF No. 1817 ("Motion"), filed on January 17, 2023, which sought to exclude evidence and argument at trial related to the "reissuance of the RE'461 patent and its assertion by Merck against Mylan," ECF No. 1820 at 6 (Memorandum in Support). For the reasons stated below, the court SUSTAINS Plaintiffs' Objections and GRANTS Plaintiffs' Motion.
I. BACKGROUND
The facts relevant to Plaintiffs' Objections have been set forth in numerous opinions of the court, most recently in the thorough factual summary in Judge Miller's Order, which the court now adopts and incorporates herein. See ECF No. 2000 at 3-19. Although Plaintiffs' Motion argued that developments in the Mylan litigation that occurred after Merck settled with Glenmark are irrelevant and highly prejudicial to their antitrust claim against Defendants, Judge Miller disagreed. Id. at 2-3. Instead, Judge Miller reasoned that the post-settlement Mylan evidence was "relevant to disputed issues of fact in this case" and that the probative value of that evidence was not substantially outweighed by the "serious risk of misleading and confusing the jury." Id.; see Fed. R. Evid. 403. However, in order to address the prejudicial effect of the post-settlement Mylan evidence, Judge Miller's Order proposed various evidentiary tools which would enable the trial court to "exercise its authority to prevent jury confusion . . . short of outright exclusion." Id. at 3.
Plaintiffs filed their Objections to Judge Miller's Order on March 23-24, 2023. See ECF Nos. 2026 (DPPs and EPPs), 2029 (Retailers). On March 31, 2023, Defendants responded, requesting that the court overrule Plaintiffs' Objections. ECF No. 2037. On April 3, 2023, Plaintiffs replied. ECF Nos. 2038 (Retailers), 2039 (DPPs and EPPs). Thereafter, on April 5, 2023, the court advised the parties that Plaintiffs' Objections were being taken under advisement until "expert testimony . . . and any relevant fact witness(es) have been heard and evaluated by the court." ECF No. 2041 at 4 (Notice Order). The court indicated that proffers, particularly of the parties' patent experts, would be taken outside the presence of the jury before any decision was made on the admission of the evidence by the court. See id.
On April 7, 2023, Defendants objected to the court's decision to take Plaintiffs' Objections under advisement in that manner, contending that "such an approach would be highly prejudicial to Defendants and undermine the fairness of the trial." ECF No. 2053 at 3. Instead, Defendants requested that the court hold a pre-trial hearing, pursuant to Federal Rule of Evidence 104, in which the court could "hear from both sides' patent experts" and thereafter resolve the matter before trial begins. Id. at 5; see Fed. R. Evid. 104(c)(3) (noting that the court "must conduct any hearing on a preliminary question . . . if justice so requires") (emphasis added).
On Friday, April 14, 2023, on the eve on trial, the parties convened before the undersigned for a hearing on Plaintiffs' Objections. See ECF No. 2088 (Minute Entry), 2099 (April 14, 2023, Hearing Transcript) [hereinafter Tr.]. At the hearing, the court heard argument from counsel and proffer of testimony from both parties' patent experts: Dr. Robert T. Hrubiec (for Plaintiffs) and Mr. Robert A. Armitage (for Defendants). Accordingly, after full briefing and the accommodation of Defendants' request for a pre-trial hearing on this matter, Plaintiffs' Objections are now ripe for judicial decision.
Juror selection and voir dire in this case was to begin on Monday, April 17, 2023, but was then moved to Tuesday, April 18, 2023. See ECF No. 2078 (Notice Order No. 2).
II. Standard of Review
A. Review of a Magistrate Judge's Non-Dispositive Ruling
Normally, the court will not disturb a magistrate judge's ruling on non-dispositive pre-trial matters, unless the ruling is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). "[A]ltering a magistrate judge's non-dispositive orders is extremely difficult to justify." CertusView Techs., LLC v. S&N Locating Servs., LLC, 107 F.Supp.3d 500, 504 (E.D. Va. 2015) (Davis, J.) (cleaned up). However, some non-dispositive matters have such consequence for the proceedings that the court may instead review the matter de novo. Fed. R. Civ. P. 72(b); see 12 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 3069 (3d ed. 2002) (noting that non-dispositive matters "may" require de novo review). As set forth infra Part III, the court finds such import here. Accordingly, the court proceeds with review of Plaintiffs' Objections to Judge Miller's Order de novo.
B. Relevance
Pursuant to Rule 401 of the Federal Rules of Evidence, evidence is relevant if "it has a tendency to make a fact more or less probable; and . . . the fact is of consequence in determining the action." Fed. R. Evid. 401. Finding evidence relevant under Rule 401 is a "low bar," Jones v. Ford Motor Co., 204 Fed. App'x 280, 283 (4th Cir. 2006), but may be otherwise limited by the Rules, see e.g., Fed. R. Evid. 403.
Rule 403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed" by other concerns. Fed. R. Evid. 403 (emphasis added). Such concerns include "unfair prejudice, confusing the issues," and "misleading the jury." Id.; see Altria Group, Inc. v. United States, 694 F. Supp. 2d 259, 285-286 (S.D.N.Y. 2010) (finding that the testimony of an IRS agent was properly excluded from the jury trial to avoid misleading the jury with complicated transactional matters). In making Rule 403 determinations, the trial court is afforded "broad discretion." See Steves and Sons, Inc. v. JELD-WEN, Inc., 988 F.3d 690, 713 (4th Cir. 2021). To exercise this broad discretion, the trial court should "balance the probative value of and need for the evidence against the harm likely to result from its admission." Fed. R. Evid. 403 advisory committee's note.
III. DISCUSSION
A. The Mylan Evidence
To begin, it is important to cabin the types of Mylan evidence that encircles this case. First, there are facts about the Mylan litigation which existed prior to the date on which Merck and Glenmark settled their patent dispute: May 10, 2010. See ECF No. 1083-18 at 29 ("Hrubiec Rpt.") These facts certainly were known, or could have been known, by a reasonable patent attorney advising Merck and Glenmark on their respective chances of prevailing at trial, as well as by a reasonable economist advising the parties on the agreements' provision for generic entry. The pre-settlement facts show, as the parties seem to agree, that "there is no evidence that the Mylan case would have been evaluated any differently from the Glenmark case at the time of [the Merck-Glenmark] settlement." ECF No. 2030 at 8 (quoting ECF No. 1732 at 2, Def. Obj. to R&R on Summary Judgment) (cleaned up). Further, pre-settlement facts certainly include the understanding that the Mylan litigation would continue after the Glenmark settlement, to conclude sometime prior to expiry of the challenged RE'721 patent, on October 25, 2016. See Hrubiec Rpt. at 18. However, this type of pre-settlement Mylan evidence is not the subject of Plaintiffs' Motion in Limine No. 19. ECF No. 1817.
The second type of Mylan evidence, which is at issue in Plaintiffs' Motion and Objections, are developments that occurred in the Mylan litigation after Merck and Glenmark settled in May 2010. As noted in Judge Miller's Order, these subsequent developments include "the reissue of the RE'721 patent as the RE'461 patent, changes to Merck's witness list, and the Federal Circuit's Therasense II decision on the legal standard for inequitable conduct." ECF No. 2000 at 21 (citing Plaintiffs' Memorandum in Support, ECF No. 1820 at 23-24, 29-33).
Yet another type of Mylan evidence is the actual result of the Mylan patent infringement suit, in which Merck ultimately prevailed in a bench trial and the RE'461 patent was not found to be invalid based on Mylan's inventorship defense. Schering Corp. v. Mylan Pharms., Inc., No. 09-6383, 2012 WL 1473329 at *13 (D.N.J. Apr. 27, 2012) (Linares, J.) (referred throughout as the Mylan case or litigation). As a part of this ruling, Judge Linares found that Dr. Adriano Afonso, who was also the subject of Glenmark's inventorship defense, "did not contribute to the invention of Compounds 4E and 4F because he did not first conceive the operative method he used to make them." Id. at *12.
Schering Corp. has since merged with Merck.
Plaintiffs contend that the latter two types of Mylan evidence are "substantially more prejudicial than probative." ECF No. 2027 at 4. The court agrees. As Judge Miller identified in his Order, "the parties vigorously dispute the relationship between the Mylan and Glenmark litigations." ECF No. 2000 at 28. As such, "if the jury is allowed to hear that Merck ultimately won its case against Mylan, the parties will have to explain the highly technical similarities and differences between the Glenmark and Mylan cases." Id. In effect, if the door to Mylan evidence which post-dates the Glenmark settlement is opened at all, the flood gates will be flung wide.
B. Prejudicial Effect of Post-Settlement Mylan Developments
For the reasons set forth below, the court finds that post-settlement developments in the Mylan litigation pose a high risk of confusing the issues and misleading the jury. Fed. R. Evid. 403. At the Rule 104 hearing on April 14, 2023, Plaintiffs' patent expert, Dr. Hrubiec, repeatedly testified that he did not intend to offer testimony at trial which implicated post-settlement Mylan evidence. However, Defendants patent expert, Mr. Robert T. Armitage, insisted that he would.
See Tr. at 62:2-3 (Dr. Hrubiec: "I did not rely on any post-May 2010 facts or information."); Tr. at 73:13-23 (Dr. Hrubiec noting that he does not need nor intend to testify at trial regarding any post-May 2010 Mylan evidence). Should Plaintiffs introduce or implicate post-settlement Mylan evidence at trial, either through the testimony of Dr. Hrubiec or any other witness, the court will not restrict Defendants' right to introduce similar evidence to rebut.
But see infra Part III.D.1. at 18-19 (excerpts of Mr. Armitage's testimony).
Specifically, during Mr. Armitage's proffer, he first discussed the elements of an inequitable conduct claim related to an inventorship defense and the elements required to establish joint inventorship. See Tr. at 93:16-24, 94:23-95:8, 95:18-96:3. Mr. Armitage then analyzed the differences between Glenmark's position against the RE'721 patent and Mylan's position against the RE'461 patent, with reference to the predecessor RE'115 patent and '440 application, as well as the changes to the compounds claimed by the RE'721 and RE'461 patents. Tr. at 99:4-6, 122-123. Finally, Mr. Armitage opined, at length, about the materiality of the changes to Merck and Mylan's positions following the Glenmark settlement and the patent reissuance. Tr. at 103:24-104:21, 127:3-12.
Therefore, through Mr. Armitage's proffer, it was clear to the court that, should the parties be permitted at trial to introduce evidence of the post-settlement developments in the Mylan case, the jury will be forced to wade through the "highly technical similarities and differences" between the Glenmark and Mylan cases, ECF No. 2000 at 28, as well as nuanced aspects of patent law, before ever reaching the actual issue in the instant case: whether Merck and Glenmark violated the antitrust laws. As Plaintiffs' counsel aptly argued, this would essentially result in a patent trial within a patent trial within an antitrust trial.
Mr. Armitage confirmed this court's conclusion in his testimony. See Tr. at 132:22-133:17.
See supra note 5 and accompanying text.
Naturally, the court recognizes that regardless of the admissibility of the post-settlement Mylan evidence, the jury will need to be educated on and analyze certain applicable areas of patent law in order to understand and assess the credibility of Drs. Hrubiec and Armitage's opinions on what a reasonable patent attorney would have advised Merck and Glenmark in May 2010 regarding their respective chances of prevailing at trial. However, introducing evidence and argument related to subsequent changes in Merck's position against Mylan after the Merck-Glenmark settlement, including the reissuance of the RE'721 patent as RE'461, will essentially require the jury to apply additional, even more complex, patent law principles to a second case, and then contrast the results with the case at bar. This task would be, as Judge Miller said "a tremendous burden" and would "further strain [the jury's] ability to understand and decide" this complex reverse payment antitrust case. ECF No. 2000 at 29.
C. Prejudicial Effect of the Mylan Result
The court also finds that evidence of the Mylan result, including Judge Linares' conclusions as well as the ultimate holding that the RE'461 Patent was not invalid based on Mylan's inventorship defense, poses an incredibly high risk of not only misleading the jury, but confusing the issues and imposing undue prejudice on Plaintiffs' case. Fed. R. Evid. 403. While there were certainly marked similarities between the Glenmark and Mylan cases at the time of the Merck-Glenmark Settlement Agreement, the subsequent changes in Merck's position in the Mylan case resulted in important distinctions. Allowing the jury to hear and review Judge Linares' findings, conclusions, and ultimate holding risks diverting the jury's attention from these nuanced distinctions and invites the possibility that jury would too readily conclude that Judge Linares' decision in Mylan serves as the final word on how he would have resolved the Glenmark litigation.
The weight of the apparent authority, in and itself, of a federal judge's findings and conclusions on a lay jury in another case would be highly prejudicial to Plaintiffs' (and this court's) ability to place Judge Linares' decision in its proper context. Further, as Judge Miller noted, Defendants have consistently, throughout their briefings before the court, "impl[ied] that the jury should use the Mylan result as a proxy for what would have happened in the Glenmark litigation had the parties not settled." ECF No. 2000 at 31 (citing ECF No. 1912 at 7, 29 (Defendants' Opposition to Plaintiffs' Motion)). The court must protect the jury from this improper implication and intrusion on their role as jurors in this case at bar.
Defendants actually propose to admit Judge Linares' Opinion in this case as Merck Exhibit No. 639, see Tr. at 114:24-115:18, to which Plaintiffs adamantly object.
Accordingly, the court finds an extremely high risk of prejudice in both the post-settlement Mylan developments and in its result. The next inquiry is whether this extremely high risk of prejudice substantially outweighs the probative value of the evidence. Fed. R. Evid. 403.
D. Probative Value of the Mylan Evidence
Regarding probative value, Judge Miller "conclude[d] that evidence related to the reissued Zetia patent and its assertion against Mylan is relevant to disputed issues of fact in the case, including [1] Plaintiffs' alternative settlement causation theory and [2] Defendants' defense that the settlement had procompetitive effects." See ECF No. 2000 at 2. The court agrees that the Mylan evidence has probative value for both Plaintiffs' alternative settlement theory and Defendants' proposed procompetitive justifications. However, for the reasons stated below, that probative value is limited and substantially outweighed by its prejudicial effects. Fed. R. Evid. 401, 403.
1. Alternative Settlement Causation Theory
As discussed at length in this court's Opinion on Summary Judgment, Plaintiffs are proceeding in this reverse payment antitrust case on an alternative settlement theory of causation. See ECF No. 1929 at 23-24, 31-37. In order to establish their alternative settlement theory, Plaintiffs need to prove at trial that Merck paid Glenmark in exchange for a generic entry date that was later than a competitively balanced entry date, set forth in an alternate settlement without the reverse payment. Id. at 43.
To calculate the competitively balanced generic entry date, Plaintiffs rely on the models of two economists: Dr. Thomas G. McGuire and Dr. Keith B. Leffler. See ECF Nos. 1130-9 ("McGuire Rbt. Rpt."), 1084-18 ("Leffler Rbt. Rpt."). One input to the economists' models is Dr. Hrubiec's opinion that Glenmark had a 65-75% chance of winning against Merck, which is based primarily on the merits of Glenmark's inventorship defense. See McGuire Rbt. Rpt. at 27, Leffler Rbt. Rpt. at 4. After essentially "split[ting] the profits from settling between Merck and Glenmark in the same proportion as the actual settlement," Drs. McGuire and Leffler calculate that the competitively balanced generic entry date, as set forth in an alternate settlement, would have been sometime between January and May 2015. ECF No. 2030 at 6; see McGuire Rbt. Rpt. at 26, ECF No. 1130-4 at 54-55 ("Leffler Rpt.").
In his Order, Judge Miller identified that Plaintiffs' alternative settlement model thus appears to include an implicit assumption that Merck would win the Mylan case because the Mylan litigation concluded in April 2012, approximately four years before the alternative settlement model's generic entry date. ECF No. 2000 at 26. This implicit assumption is important because, had Merck's RE'461 patent been invalidated as a result of the Mylan litigation, Glenmark's generic entry could have occurred at that time. Against this even earlier generic entry date, the "profits from settling" for both Merck and Glenmark would change. With one of the inputs to the economists' alternative settlement model adjusted, the model's output, the competitively balanced entry date, should also change. Drs. McGuire and Leffler have already been confronted with this question. In response, the economists explained that they need not account for the risk of Merck losing to Mylan "because a Mylan loss would impact settlement profits and litigation risk equally," as assessed at the time of the Merck-Glenmark settlement. ECF No. 2030 at 8 (citation omitted).
In effect, Plaintiffs argue that their alternative settlement model of causation "does not implicate post-settlement evidence," id. at 5, and reject the contention that the model contains an implicit assumption that Merck would prevail against Mylan, ECF No. 2027 at 11. Rather, Plaintiffs submit that the model's only assumption related to Merck's patent exclusivity is that Merck would be able to maintain exclusivity through whatever date Glenmark's generic ultimately entered the market, pursuant to either the license provision or the acceleration clause that would be triggered by a Mylan loss. ECF No. 2027 at 11.
In response, Defendants point to two cases which they claim support that post-settlement events are probative to the issue of causation in reverse payment settlement cases. See ECF No. 2037 at 32-33. In Opana, the district court refused to exclude the defendants' expert opinions that "opined in some way on the [additional] patents acquired" after the patent holder's settlement with the first generic filer. See In re Opana ER Antitrust Litig., No. 14 C 10150, 2021 WL 2291067, at *23 (N.D. Ill. June 4, 2021). However, the plaintiffs in Opana were not proceeding solely on an alternate settlement theory; the plaintiffs in Opana also advanced a "continued litigation" theory, which alleged that, absent the reverse payment, the parties would have continued to litigate the patent infringement suit to completion. The continued litigation theory necessarily implicates post-settlement evidence because it contemplates how the parties to the original infringement suit could have continued to strengthen their positions.
In Apotex, the district court found that "the evidence of a patent's subsequent invalidation is highly probative" to the question of causation in that case. Apotex v. Cephalon, Inc., 255 F. Supp. 3d 604, 614 (E.D. Pa. 2017). There too, however, the plaintiffs were proceeding on a different theory of causation. In Apotex, the plaintiffs advanced the "at-risk" theory, which alleged that the generic challenger, but for the reverse payment, would have "risked" improperly launching its generic before resolution of the infringement suit. Apotex, 255 F. Supp. 3d at 608. The at-risk theory, like the continued litigation theory, necessarily implicates post-settlement events, in that context, because the plaintiffs are required to prove that the generic challenger's "at-risk" launch was ultimately lawful. Id. at 614. In Apotex, "the patent in question ha[d] been found to be invalid and non-infringed" and that fact was thus "relevant evidence on that required proof." Id.
In the alternative settlement context, as applied to the facts of this case, had Mylan won against Merck in 2012, generic entry would have occurred even earlier than the starting point of Plaintiffs' alternative settlement model: the competitively balanced generic entry date in early 2015. See McGuire Rbt. Rpt. at 26, Leffler Rpt. at 54-55. But Mylan did not prevail against Merck in 2012. The Mylan result could have, but in fact did not, interrupt Plaintiffs' causation model. Thus the alternate settlement theory does not implicate the post-settlement Mylan evidence which actually occurred. Ultimately, due to the differing theories of causation in Opana and Apotex, the court does not find that those cases support Defendants' position in this regard.
In a separate substantive challenge to Plaintiffs' causation model, Defendants essentially submit that Plaintiffs picked the wrong model. Defendants argue that they should be able to present post-settlement Mylan evidence at trial which tends to support a finding that Merck never would have agreed to an alternate settlement. ECF No. 2037 at 9. Put differently, Defendants propose that since Merck ultimately went to trial in the Mylan case, this fact shows that, contrary to (any) alternate settlement model, if a reverse payment was demanded, Merck would have instead continued to litigate the dispute through trial. Id. Here, the court does not find the fact that Merck continued to litigate the Mylan case through trial particularly probative on the question of whether Merck would also have done so in the Glenmark case had a reverse payment been demanded. This is particularly so considering that Merck subsequently changed aspects of its defense.
To the extent that Merck intends to advance the position that it would not have agreed to an earlier generic entry date than that which was set forth in the settlement agreement, that challenge seems most appropriately aimed at combatting the existence of a reverse payment in the first place, the mechanism through which Plaintiffs' earlier alternative entry date of early 2015 is calculated. Evidence such as the negotiators' and contract drafters' testimony, as well as challenges to the reliability of Plaintiffs' models, are, in the court's view, the most appropriate way to advance that defense without implicating the highly prejudicial post-settlement Mylan evidence.
See ECF No. 1677 (Judge Miller's "Sword-Shield" order addressing Plaintiffs' motion to preclude argument and evidence related to Merck's privilege assertions, ECF Nos. 1053, 1074).
Separately, Defendants advance several collateral uses of the post-settlement Mylan evidence. In particular, Defendants assert that the evidence should be available (1) to impeach Dr. Hrubiec's opinion on Merck's likelihood of success and, ipso facto, validate Mr. Armitage's opinion on that matter; and (2) to challenge the accuracy of Plaintiffs' alternative settlement model insofar as the model does not account for the Mylan risk.
First, Defendants are correct to the extent they exclaim that Judge Linares' conclusions in the Mylan case tend to undermine Dr. Hrubiec's opinion that Merck was likely to lose against Glenmark. As explained above, and not to be reiterated in detail here, while there were many nuanced differences between Glenmark's defense in 2010 and Mylan's defense in 2012, perhaps the most important similarity remained: Both Glenmark and Mylan claimed that Dr. Afonso was an inventor of compounds 4E and 4F. Schering, 2012 WL 1473329 at *13. Judge Linares' conclusion to the contrary thus undermines Dr. Hrubiec's opinion that Merck was likely to lose against Glenmark, since Dr. Hrubiec's opinion was based primarily on the merits of Dr. Afonso's inventorship title.
However, as outlined above, there is extreme risk of prejudice in disclosing Judge Linares' findings and conclusions to the jury. Further, Defendants' rebuttal patent expert, Mr. Armitage, conceded at the April 14, 2023, pre-trial hearing that he did not rely on Judge Linares' conclusions to arrive at his own. Tr. at 91:23-92:1. Instead, Mr. Armitage stated that he relied on the "evidence that was available in the Glenmark case, and that Glenmark had available to submit at trial." Tr. at 102:25-103:2. Mr. Armitage then used the post-settlement Mylan evidence to validate his analysis:
[U]ltimately, in my view, because the decision in the Mylan case was consistent with the conclusions that I had reached, I found they were confirmatory, at least my view of the reliability of the analysis I had made.Tr. at 90:2-5. On cross-examination, Mr. Armitage reiterated the matter quite plainly:
Counsel: [Y]ou reached your conclusions independently of relying upon the Mylan results, correct?Tr. at 112:9-15.
Mr. Armitage: Correct.
Counsel: And so you don't need the Mylan result in order to reach your opinion, correct?
Mr. Armitage: Correct.
Accordingly, the post-settlement Mylan evidence, particularly Judge Linares' conclusions regarding the RE'461 patent, is not required for Defendants to effectively rebut Dr. Hrubiec's testimony and to present evidence that Merck was likely to defeat Glenmark's inventorship defense. Instead, the factual underpinnings of Mr. Armitage and Judge Linares' conclusions, such as the facts that "(1) a 1976 journal disclosed Afonso's methods for making 4E and 4E . . . and (2) Merck's '440 application already disclosed viable methods for making the compounds," are the types of evidence most apt for impeachment. See ECF No. 2037 at 18.
While Judge Linares' opinion undoubtedly bolsters support to Mr. Armitage's intended testimony, the court cannot possibly justify putting highly prejudicial post-settlement evidence, including the findings, conclusions, and opinion of a federal judge in another factually different case in front of the jury in this complex antitrust matter simply for the purpose of validating and bolstering the Defendants' patent expert's opinion. It is the role and duty of the jury to assess and weigh the relative credibility of the patent experts' opinions and the other evidence in the antitrust case at bar, and not to do so through the lens of a federal judge in a different patent case involving a different plaintiff on a different factual record.
Second, the court agrees that Plaintiffs' alternative settlement model is vulnerable to attack for its failure to account for the Mylan risk. Although Drs. McGuire and Leffler have advanced their explanation for that omission, it is unclear to the court at this juncture whether that explanation could survive scrutiny on cross-examination. However, nothing related to the Mylan case that post-dates the Glenmark settlement is necessary to probe this vulnerability. The alternate settlement model is viewed based on what a reasonable expert advising Merck and Glenmark would have known immediately prior to the settlement in May 2010. A reasonable expert in May 2010 would have known (1) that the Mylan case would continue after the Glenmark settlement; (2) that Mylan's defense, at that time, was nearly identical to Glenmark's; and (3) that the Mylan litigation was likely to conclude sometime before Plaintiffs' alleged alternative entry date. These facts, pre-dating the Glenmark settlement, are all that is required to effectively suggest that Plaintiffs' alternative settlement model is unreliable for not accounting for the Mylan risk, as viewed in May 2010. Additional post-settlement evidence does not have any particular probative value in this regard.
To conclude, after considering the application of the post-settlement Mylan evidence on the various causation issues outlined above, the court finds that, at each turn, the probative value of the evidence is substantially outweighed by its prejudicial effect. Fed. R. Evid. 403.
2. Procompetitive Benefits of the Settlement Agreement
As an initial matter, aside from the Motion in Limine regarding the Mylan evidence, Plaintiffs also submitted Motion in Limine No. 15, which sought to exclude evidence and argument from trial that the Merck-Glenmark settlement agreement had procompetitive benefits. See ECF No. 1806 at 2. According to Plaintiffs, under the three-step rule of reason analysis, Defendants must offer offsetting procompetitive justifications for the reverse payment. See id.; ECF Nos. 2027 at 12, 2030 at 9. Defendants disagreed and argued in response that they are entitled to present evidence and argument that the settlement agreement, as a whole, benefitted competition. See ECF No. 1910.
Judge Miller sided with Defendants and denied Plaintiffs' Motion in Limine No. 15. See ECF No. 2063. In part, Judge Miller's reasoning focused on the complication present in any rule of reason jury trial: Absent a stipulation on the existence of a restraint, the jury does not decide whether the plaintiff has established the restraint nor its anticompetitive effects until their verdict. See id. Accordingly, Judge Miller found that it would be unfair and premature to restrict Defendants' ability at trial to defend themselves under the rule of reason by presenting procompetitive benefits of the settlement agreement as a whole. Id. at 12-15. No objection to this ruling is presently before the court, and the court finds Judge Miller's reasoning to be compelling.
Returning to the present Motion in Limine and to Plaintiffs' Objections to Judge Miller's Order, Plaintiffs argue that post-settlement Mylan evidence is irrelevant to the question of an antitrust violation because of the "fundamental antitrust principal that the anticompetitive effects of an agreement must be considered as of the time of the agreement." ECF No. 2030 at 10; see Apotex, 255 F. Supp. 3d at 611 ("[T]he Actavis rule of reason analysis is focused on whether the settlements were reasonable at the time they were entered into."); Valley Drug Co. v. Geneva Pharmaceuticals, Inc., 344 F.3d 1294, 1306 (11th Cir. 2003) ("[T]he reasonableness of agreements under the antitrust laws are to be judged at the time the agreements are entered into."). Thus, because post-settlement Mylan evidence, by definition, occurred after Defendants' agreement, Plaintiffs submit that the evidence is not relevant to the jury's procompetitive analysis. ECF No. 2030 at 12.
In response, Defendants again point to Opana, in which the court allowed evidence of later acquired patents to assess "the overall effect of the agreement [as] an unreasonable restraint on trade." Opana, 2021 WL 2291067 at *23. The court is not bound by that decision and does not find its brief analysis particularly persuasive. In addition, the court notes that Opana dealt with subsequently acquired additional patents on the challenged drug, not a reissued patent which replaced the original, with modifications, as here. Id. at *3. Evidence of a subsequently reissued patent and its assertion against a different generic challenger poses more risk of confusing the issues than that of subsequently acquired additional patents, whose relative impact in later litigation could be more easily compartmentalized than a reissued patent.
Nevertheless, Defendants argue that the post-settlement Mylan evidence is probative to the procompetitive benefits of Glenmark settlement by showing (1) objective evidence that Merck believed its patent was strong relative to Glenmark's challenge; and (2) that the settlement did, in fact, allow generic entry earlier than patent expiry. ECF No. 2037 at 29-32. First, citing Judge Miller's "Sword-Shield" order, see ECF No. 1677, Defendants submit that post-settlement Mylan evidence is appropriate "objective evidence of Merck's understanding of the strength of its case" against Glenmark which is probative to show that Merck's decision to settle was procompetitive in that Glenmark was not entitled to any early entry. ECF No. 2037 at 29.
For the same reasons stated above, the court does not view Merck's decision to go to trial in the Mylan case particularly probative on this question. The court gives particular consideration to the fact that, on its reissue application, Merck "stated to the [Patent and Trademark Office] that the RE'721 patent may have been 'inoperative or invalid' due to inherent anticipation of the claims related to Compounds 4E/F by the '048 application," a discovery they attributed to Glenmark's challenge. ECF No. 2000 at 9 (citing ECF No. 1083-1 at 8-10 (RE'721 Reissue Application)). A stipulation acknowledging that Merck continued to litigate the Mylan challenge after the Glenmark settlement could achieve Defendants' aim here without implicating the prejudicial effects of the post-settlement Mylan evidence.
Moreover, to the extent that Defendants argue that post-settlement Mylan evidence is probative on the question of whether Defendants' agreement "allowed earlier competition than they believed would otherwise have occurred," this point also does not require post-settlement evidence to be established. ECF No. 2037 at 31. Due to the acceleration clause in the Merck-Glenmark settlement agreement, the Mylan litigation had the potential to provide generic entry even earlier than the license provision provided: If Mylan either obtained an earlier agreed entry date in a settlement with Merck or prevailed at trial. However, neither option actually occurred.
Accordingly, to establish that the existence of the ongoing Mylan litigation provided for the possibility of even earlier generic entry than the Glenmark settlement's license provision allowed, Defendants need only point to the acceleration clause. This is a pre-May 2010 fact that does not require disclosing to the jury that Merck, in fact, ultimately prevailed at the bench trial in the Mylan case, which would, as indicated above, open the door to full disclosure of all the post-settlement Mylan developments. Further, Defendants can rely on the terms of the Glenmark settlement alone to indicate that it provided for generic entry prior to patent expiry, based on the license provision. Put simply, here too, the prejudicial effect of the post-settlement Mylan evidence clearly outweighs its probative value.
IV. CONCLUSION
After a de novo review, 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b), the court FINDS that the prejudicial effect of evidence related to the Mylan litigation that post-dates the Merck-Glenmark settlement substantially outweighs its probative value. Fed. R. Evid. 403. Accordingly, Plaintiffs' Objections, ECF Nos. 2026 (DPPs and EPPs), 2029 (Retailers) are SUSTAINED and Plaintiffs' Motion in Limine No. 19, ECF No. 1817, is GRANTED.
The parties are DIRECTED to proceed at trial in accordance with the directives of this Memorandum Opinion and Order. The Clerk is DIRECTED to send a copy of this Memorandum Opinion and Order to counsel for all parties.
IT IS SO ORDERED.