Frequently Asked Questions
Why did I get a notice?
You received a notice because, according to available records, you may have purchased brand Glumetza® directly from Bausch and/or generic Glumetza directly from Lupin or Oceanside at some point from May 6, 2012 through August 15, 2020. A prior notice about the Lawsuit and the Court’s decision to certify the Class was mailed to you on or about November 6, 2020. A second notice was sent to you because Settlements with Bausch, Assertio, and Lupin have been reached in the Lawsuit.
What is this lawsuit about?
The Lawsuit is a class action known as In re Glumetza Antitrust Litigation, No. 3:19-cv-05822-WHA. United States District Judge William Alsup of the United States District Court for the Northern District of California is overseeing the Lawsuit.
The Lawsuit alleges that Defendants violated federal antitrust laws by engaging in an unlawful scheme to delay and impede market entry of less expensive, generic versions of Glumetza. Specifically, the Lawsuit alleges that Lupin agreed to delay the launch of a generic version of Glumetza in exchange for payment from Bausch/Assertio in the form of reimbursement of attorneys’ fees and an agreement to delay the launch of an authorized generic product. The Lawsuit claims that, as a result of Defendants’ scheme, Class Members were injured by losing the opportunity to purchase less expensive, generic versions of Glumetza and suffered antitrust overcharges in their purchases of brand and/or generic Glumetza. A copy of the operative Class Action Complaint, filed April 9, 2020, is available here. This website was established to keep Class Members informed of the status of the Settlements.
Defendants deny all of Plaintiffs’ allegations, including that any Class Member is entitled to damages or other relief, and respond that none of their conduct violated any applicable law or regulation.
Following the completion of fact discovery, expert discovery, class certification, and summary judgment, and following extensive negotiations overseen by a magistrate judge appointed as a mediator by the Court, Plaintiffs, individually and on behalf of the Class, entered into the Settlements with Bausch, Assertio, and Lupin. The Settlement Agreements are available for review here.
The Settlements are not an admission of wrongdoing by Defendants or an admission by Plaintiffs of any lack of merit in their claims.
THE COURT HAS NOT DECIDED WHETHER ANY OF THE DEFENDANTS VIOLATED ANY LAWS. THIS NOTICE IS NOT AN EXPRESSION OF ANY OPINION BY THE COURT AS TO THE MERITS OF PLAINTIFFS’ CLAIMS OR THE DEFENSES ASSERTED BY DEFENDANTS.
Why is this lawsuit a class action?
In a class action, one or more entities may serve as class representatives to sue on behalf of other entities with similar claims. In this case, the Class representatives are Plaintiffs Meijer, Inc., Meijer Distribution, Inc., BI-LO, LLC, Winn-Dixie Logistics, Inc., and KPH Healthcare Services, Inc. The Class representatives and the entities on whose behalf they have sued together are called the “Class” or “Class Members,” and their attorneys are called “Class Counsel.”
The companies that have been sued are called the “Defendants.” In this case, the Defendants are Bausch, Assertio, and Lupin.
In a class action lawsuit, one court resolves the issues for everyone in the class, except for those class members who exclude themselves (i.e., “opt out”) from the class. The Court, by order dated August 15, 2020, determined that this Lawsuit can proceed as a class action because it meets the requirements of Federal Rule of Civil Procedure 23, which governs class actions in federal courts. Specifically, the Court found that:
- Members of the Class share common legal or factual issues relating to the claims in this case;
- The claims of the Class representatives are typical of the claims of the rest of the Class;
- The common legal questions and facts predominate over questions affecting only individual members of the Class, and this Class action will be more efficient than individual lawsuits;
- The number of Class Members is so numerous that joining them all into one suit is impractical; and
- The Class representatives and Class Counsel will fairly and adequately protect the Class’s interests.
A copy of the Court’s order certifying the Class may be found here
Why are there settlements with Bausch, Assertio, and Lupin?
The Settlements are the product of extensive negotiations between Class Counsel and counsel for Bausch, Assertio, and Lupin, with a magistrate judge serving as a mediator and after lengthy, hard-fought litigation. At the time of the Settlements, discovery was complete, expert reports had been exchanged and experts examined, motions for class certification and summary judgment had been decided, and Plaintiffs and Defendants were preparing for trial in October 2021. By settling, the Class and Defendants avoid the cost and risks of trial and possible appeals.
The Settlements, if approved by the Court, ensure that Class Members will receive compensation. Plaintiffs and Class Counsel believe that the terms of the Settlements, including payment by Bausch of $300 million, payment by Assertio of $3.85 million, and payment by Lupin of $150 million, in exchange for a release of Plaintiffs’ claims against Defendants, are fair, adequate, and reasonable and in the best interests of the Class.
WHO CAN PARTICIPATE IN THE SETTLEMENTS?
To see if you are in the Class and, if so, how you will be able to share in the Settlement Funds, you first have to determine if you are a Class Member.
Am I part of the Class?
You are in the Class if you are an entity in the United States or its territories that purchased brand Glumetza directly from Bausch or generic Glumetza directly from Lupin or Oceanside at any time from May 6, 2012 through August 15, 2020 and you are not excluded from the Class.
Excluded from the Class are Defendants and any of their officers, directors, management, employees, subsidiaries, or affiliates and all federal governmental entities.
At their request, in response to the previous notice of this Lawsuit sent to all Class Members, the following entities were also excluded from the Class: Albertsons Companies, Inc., Albertsons LLC, CVS Pharmacy, Inc., H-E-B L.P., Humana Pharmacy, Inc., Hy-Vee, Inc., The Kroger Co., Rite Aid Corporation, Rite Aid Hdqtrs. Corp., R&S Northeast LLC., and Walgreen Co.
If you are not sure whether you are included, you may call or write to the lawyers in this case at the telephone numbers or addresses listed in FAQ 10.
THE SETTLEMENT BENEFITS: WHAT YOU GET
What do the settlements with Bausch, Assertio, and Lupin provide?
The Class’s expert has estimated that the Class’s single damages in the Lawsuit range from $500 million to $900 million. The Settlements total $453.85 million, representing approximately 50% to 90% of single damages.
Under the terms of the Bausch Settlement Agreement, Bausch will pay $300 million into the Bausch Settlement Fund, which will be held in escrow for the benefit of the Class (including any interest that accrues) pending the Court’s approval of the Bausch Settlement and Class Counsel’s plan to distribute the Settlement Fund to Class Members. Plaintiffs allege that Bausch was responsible for a significant increase in the price of branded Glumetza in 2015, before generic Glumetza was available; the Class alleges that that price increase would not have happened had generic Glumetza been available by that time.
Under the terms of the Assertio Settlement Agreement, Assertio will pay $3.85 million into the Assertio Settlement Fund, which will be held in escrow for the benefit of the Class (including any interest that accrues) pending the Court’s approval of the Assertio Settlement and Class Counsel’s plan to distribute the Settlement Fund to Class Members. The Settlement with Assertio is small compared to the Class’s maximum potential recovery at trial because of Assertio’s difficult financial situation. Class Counsel obtained confidential information about Assertio’s financial condition from Assertio’s counsel and retained an expert to analyze Assertio’s financial position, credit analysis, and credit risk. The expert opined that Assertio would be unable to survive a significant adverse financial event such as an adverse judgment and that the $3.85 million is “at the high end of the range of payments [it] can afford while still meeting its other obligations.”
Under the terms of the Lupin Settlement Agreement, Lupin will pay $150 million into the Lupin Settlement Fund, which will be held in escrow for the benefit of the Class (including any interest that accrues) pending the Court’s approval of the Lupin Settlement and Class Counsel’s plan to distribute the Settlement Fund to Class Members.
All three Settlements include a “most favored nation” clause that guarantees the recovery by the Class Members is at least as favorable, if not more favorable, on a pro rata basis than the recovery by any purchaser that opted out of the class and pursued a claim separately. The Class Members’ pro rata recovery equals the opt-out purchasers’ pro rata recovery for the Assertio Settlement and exceeds the opt-out purchasers’ pro rata recovery for the Bausch and Lupin Settlements.
Class Counsel will apply to the Court for an award of attorneys’ fees of up to 25% of each of the Bausch, Assertio, and Lupin Settlement Funds (net of litigation expenses and including a proportionate share of the interest), for reimbursement of litigation expenses incurred prior to the Settlements, and for payment of the costs of administering the Settlement Funds. The remainder (the “Net Settlement Funds”) will be divided among Class Members that timely return valid, approved claim forms.
In exchange, Plaintiffs’ and the Class’s claims against Defendants will be dismissed with prejudice, and Defendants will be released by the Class Members from all claims concerning the subject matter of or acts, omissions, or other conduct alleged in the complaint. The full text of the releases included in the Settlement Agreements
The Settlement Agreements may be terminated if, for example, the Court does not approve the Settlements. If the Settlement Agreements are terminated, the Lawsuit will proceed against Defendants as if a settlement had not been reached.
How much will my payments be?
Each Class Member’s share of each of the Net Settlement Funds will be based on its qualifying purchases of brand and/or generic Glumetza and will be determined according to Plaintiffs’ proposed Allocation Plan, if approved by the Court. The detailed Allocation Plan, which is similar to other court-approved pro rata allocation plans in cases involving alleged overcharges from delayed generic competition, can be reviewed here.
Under the proposed Allocation Plan, your share of each of the Net Settlement Funds will be calculated, pro rata, based on the combined total amount of Glumetza units you purchased directly from Bausch from May 6, 2012 through August 15, 2020 (net of returns) and generic Glumetza units you purchased directly from Lupin or Oceanside from February 1, 2016 (when generic Glumetza first became available) through August 15, 2020 (net of returns). Your share of each of the Net Settlement Funds will also depend on the number of valid claim forms that Class Members submit. If fewer than 100% of the Class Members send in a valid claim form, you could get a larger pro rata share. Or, if you have assigned the right to recover on some or all of your purchases, you will have a lower pro rata share.
The Class’s expert determined that the per-unit dollar overcharge is roughly the same for brand and generic Glumetza. Therefore, brand and generic purchases will be treated equally for purposes of determining pro rata shares.
Based on available information from Defendants, the Class Members purchased a total of 73,810,441,704 mg of brand and generic Glumetza between May 2012 and November 2019. (This data will be supplemented to reflect purchases through August 15, 2020.) If the Court grants Class Counsel’s request for fees and reimbursement of expenses, Class Counsel estimates a per-milligram recovery of approximately $0.0044, i.e., $4.40 per 1000 mg tablet and $2.20 per 500 mg tablet. This is only an estimate: the final per unit recovery will depend upon a number of factors, including among other things, any additional data received, whether one or more Class Members opt out, and the amount of any attorneys’ fees and reimbursement of expenses awarded to Class Counsel.
HOW YOU GET PAYMENTS: SUBMITTING A CLAIM FORM
How can I get payments?
If the Court approves the Settlements, all Class Members will receive an individualized, pre-populated claim form to request their pro rata shares of each of the Net Settlement Funds. You will not be responsible for calculating the amounts you are entitled to receive; transactional sales data produced by Defendants, supplemented with other sales data if necessary, will be used to make the calculations.
You will be asked to verify the accuracy of the information in the claim form and to sign and return the form according to the directions provided. If you believe that the information contained in the claim form is not accurate, you will be able to submit your own purchase records or other data to supplement or correct this information.
Each Class Member making a claim will be required to execute and return the claim form to receive any distribution from the Settlement Funds.
Additional information on the claims process can be found in the proposed Allocation Plan, which can be reviewed here.
When would I get my payment?
When you get your payment depends on the timing of final approval of the Settlements by the Court and any appeal of that decision. The Net Settlement Funds will be allocated to Class Members as soon as possible after the Court approves the Settlements.
THE LAWYERS REPRESENTING YOU
Do I have a lawyer in this case?
The law firms listed below has been appointed by the Court as Lead Counsel for the Class. Lead Counsel for the Class are experienced in handling similar cases against other companies. Lead Counsel for the Class are:
Lauren G. Barnes
HAGENS BERMAN SOBOL SHAPIRO LLP
55 Cambridge Parkway, Suite 301
Cambridge, MA 02142
HILLIARD & SHADOWEN LLP
1135 W. 6th Street, Suite 125
Austin, TX 78703
Shana E. Scarlett
HAGENS BERMAN SOBOL SHAPIRO LLP
715 Hearst Avenue, Suite 202
Berkeley, CA 94710
Joseph M. Vanek
SPERLING & SLATER, P.C.
55 W. Monroe Street, Suite 3200
Chicago, IL 60603
Should I get my own lawyer?
You do not need to hire your own lawyer because Class Counsel are working on your behalf. However, if you wish to do so, you may retain your own lawyer at your own expense.
How will the lawyers be paid?
If the Court approves the Settlements, Class Counsel will ask the Court for an award of attorneys’ fees of up to 25% of each of the Bausch, Assertio, and Lupin Settlement Funds (net of litigation expenses and including a proportionate share of the interest), for reimbursement of litigation expenses incurred prior to the Settlements, and for payment for the costs of administering the Settlement Funds. If the Court grants Class Counsel’s requests, these amounts would be deducted from the Settlement Funds. You will not have to pay these fees, expenses, and costs out of your own pocket.
Class Counsel’s request for an award of attorneys’ fees and reimbursement of expenses will be filed with the Court and made available for download or viewing on or before December 1, 2021 on this website, on the Court docket in this case, which can be accessed, for a fee, through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, and at the office of the Clerk of Court of the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, which can be visited between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays.
EXCLUDING YOURSELF FROM THE CLASS
Can I get out of the Class?
The Exclusion Deadline has passed.
OBJECTING TO THE SETTLEMENT
If you remain in the Class, you can tell the Court that you do not agree with any part of one or more of the Settlements or with Class Counsel’s request for attorneys’ fees and reimbursement of expenses.
How do I tell the court that I do not like the settlement with Bausch, Assertio, and/or Lupin?
The Objection Deadline has passed.
THE FAIRNESS HEARING
When and where will the court decide whether to approve the settlements with Bausch, Assertio, and Lupin?
The Court held a hearing at 11:00 a.m. on January 20, 2022, before Judge William Alsup in Courtroom 12 at the U.S. District Court for the Northern District of California where the Settlement was approved. The Judge also approved Class Counsel’s application for an award of attorneys’ fees and reimbursement of expenses. The applicable appeal period has not expired and the Settlement is Effective.
Do I have to come to the hearing?
No. Class Counsel will answer questions that the Court may have. But you are welcome to come at your own expense. If you send an objection, you do not have to come to Court to talk about it; as long as you mail your written objection on time, the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary. Attendance is not necessary to receive a pro rata share of the Settlement Funds.
May I speak at the hearing?
You may ask the Court for permission to speak at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney.
IF YOU DO NOTHING
What happens if I do nothing at all?
If you are a Class Member and you do nothing, you will remain in the Class and be eligible to participate in the Settlements as described in this notice, if the Settlements are approved. However, you will need to complete, sign, and return the claim form (once it is sent to you) in order to obtain a payment.
What are the key dates?
If you wish to exclude yourself from (i.e., “opt out” of) the Class, you must do so by sending a letter and/or email on or before November 19, 2021. See FAQ 13 above for more information on opting out.
Class Counsel’s request for an award of attorneys’ fees and reimbursement of expenses will be filed with the Court and made available for download or viewing on or before December 1, 2021. See FAQ 12 above more information on Class Counsel’s fees and expenses request.
If you remain in the Class (i.e., you do not “opt out”) and you wish to object to any of the Settlements and/or to Class Counsel’s request for attorneys’ fees and reimbursement of expenses, you must file or mail your written objection and supporting papers on or before December 22, 2021. See FAQ 14 above for more information on objecting.
The Court will hold a Final Approval Haring at 8:00 a.m. PST on January 20, 2022, before Judge William Alsup. The hearing will be held by telephone. If you’d like to attend, you may do so by dialing 888-684-8852, access code: 3707514.
The Claim Form postmark deadline for this Settlement is May 29, 2022. Claim Forms with a postmark after May 29, 2022 will be deemed late.
GETTING MORE INFORMATION
How do I get more information?
If you have questions about this case or want additional information, you may call or write to the lawyers listed in answer to FAQ 10 or visit this website. You may also contact the Settlement Administrator by email at info@GlumetzaAntitrustLitigation.com or by calling toll-free at (833) 728-1355. This is only a summary of the Bausch, Assertio, and Lupin Settlements and is qualified in its entirety by the terms of the Settlement Agreements. Copies of the Settlement Agreements are on public file with the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102 and available on this website.
PLEASE DO NOT WRITE OR CALL THE COURT OR THE CLERK’S OFFICE FOR INFORMATION.