In re: Flonase Antitrust Litigation, No. 16-1124 (3d Cir. 2017)Annotate this Case
Private indirect purchasers of prescription Flonase filed a class action, alleging that GSK had filed sham petitions with the FDA to delay the introduction of generic Flonase and force them to pay more for Flonase than they would have if the generic version were available. Those plaintiffs moved for final approval of settlement after the court certified the class and approved the notice to settlement class members. Louisiana, an indirect Flonase purchaser, qualified as a potential class member but did not receive the notice; it only received a Class Action Fairness Act (CAFA) Notice, for “the appropriate State official of each State in which a class member resides,” 28 U.S.C. 1715(b) The settlement “permanently enjoined” all members of the settlement class, including Louisiana, from bringing released claims against GSK, even in state court. In an ancillary suit, GSK moved to enforce the settlement against the Louisiana Attorney General. The Third Circuit affirmed denial of the request, finding that under the Eleventh Amendment “a State retains the autonomy to choose ‘not merely whether it may be sued, but where it may be sued.'" Although some of Louisiana’s claims fall within the settlement, the state did not waive its sovereign immunity. Receipt of the CAFA Notice was insufficient to unequivocally demonstrate that the state was aware that it was a class member and voluntarily chose to have its claims resolved.