Nexium Ruling Offers Road Map for Pay-for-Delay Classes

Law360
January 23, 2015


Gregory Asciolla discusses the benefit for pay-for-delay class cases resulting from the recent ruling


Regarding a First Circuit decision to uphold class certification in the Nexium antitrust pay-for-delay litigation regardless of the lack of some uninjured group members.

"Ultimately, pay-for-delay class cases will benefit from this ruling because it essentially settles the question as to whether a de minimis amount of uninjured class members identified at the class certification stage can defeat class certification," said Greg Asciolla, co-chair of the antitrust group at Labaton Sucharow LLP. "The First Circuit's common-sense, policy-grounded approach to addressing the presence of potentially uninjured class members at the class certification stage of a case is faithful to both the letter and spirit of Rule 23," of the Federal Rules of Civil Procedure, which lists criteria for class certification.

According to the article, the First Circuit's analysis of the question of antitrust impact — one of three elements plaintiffs have to prove in antitrust class actions along with liability and damages — may also help other courts analyzing reverse-payment claims.