# VISTA HEALTHPLAN, INC. v. CEPHALON, INC.

> District Court, E.D. Pennsylvania · April 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10398817

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** April 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10398817

## How later opinions describe it (automated extraction)

- noting that “size of the fund” should include attorneys’ fees, and administration expenses
- finding that the “percentage of the fund” method is the proper method for calculating attorneys’ fees in common fund class actions in this Circuit.

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________
:
VISTA HEALTHPLAN, INC., et al., : CIVIL ACTION
:
Plaintiffs, :
:
v. : No. 2:06-cv-1833
:
CEPHALON, INC., et al., :
:
Defendants. :
__________________________________________:

Goldberg, J. April 20, 2020

MEMORANDUM

This case arises out of a set of antitrust actions which involve reverse settlement payments
involving the drug Provigil®. The parties included a brand-name drug manufacturer, numerous
generic drug companies, retail drug distributors, the Federal Trade Commission, States Attorneys
General, direct purchasers, and end-payors. The End-Payor Plaintiff (“EPP”) action, captioned
under Vista Healthplan et al. v. Cephalon, et. al., Civ. A. No. 06-1833, culminated in a settlement
for which the EPPs now seek approval. On August 8, 2019, I granted preliminary approval of the
settlement and preliminarily certified two classes for settlement purposes.
The EPPs now move for final approval of the settlement. Upon review of the parties’
briefing and considering the arguments at the final fairness hearing on February 26, 2020, I will
certify a settlement class, grant final approval of the class action settlement, and award attorneys’
fees, costs, and incentive payments as requested.
I. FACTUAL HISTORY
A. Background of the EPPs’ Claims
In May and June 2006, several now-consolidated cases were filed on behalf all persons
who paid for Provigil and/or generic modafinil in twenty-seven states and the District of Columbia,

against Defendants Cephalon, Inc., Barr Laboratories, Inc., Teva Pharmaceutical Industries Ltd.,
Teva Pharmaceuticals USA, Inc. (collectively, “the Cephalon Parties”),1 Mylan Inc., Mylan
Pharmaceuticals Inc. (collectively “Mylan”), and Sun Pharmaceutical Industries, Ltd. as
successor-in-interest to Ranbaxy Laboratories, Ltd. and Ranbaxy Pharmaceuticals, Inc.
(“Ranbaxy”) (all of the foregoing collectively referenced as “Defendants”).
The lawsuit alleged that, in April 1997, the Patent and Trademark Office issued U.S. Patent
No. 5,618,845 (“the ‘845 patent”) to Cephalon, Inc., which patented a specific formulation of
modafinil known as Provigil, a wakefulness-promoting drug. In 2002, Cephalon, Inc. was granted
a reissue patent on Provigil, U.S. Patent No. RE 37,516 (“the RE ‘516 patent”), which was
scheduled to expire October 6, 2014. As a result of studying the drug’s effects on children,

Cephalon, Inc. received an additional six months of pediatric exclusivity on Provigil, extending
Cephalon, Inc.’s exclusivity period through April 6, 2015.
On December 24, 2002, four generic drug manufacturers—Barr Laboratories, Inc., Teva
Pharmaceutical Industries Ltd./Teva Pharmaceuticals USA, Inc., Mylan Inc./Mylan
Pharmaceuticals Inc., and Ranbaxy Pharmaceuticals, Inc. (collectively, the “Generics”)— filed
Abbreviated New Drug Applications (“ANDAs”) for generic Provigil, each certifying that
Cephalon Inc.’s patent was either invalid or would not be infringed by their generic modafinil

1 During the pendency of this litigation, Barr Laboratories, Inc. Teva Pharmaceutical Industries
Ltd., and Teva Pharmaceuticals USA, Inc. merged with Cephalon, Inc. making them all one entity,
which, for purposes of this Opinion, I collectively refer to as “the Cephalon Parties.”
product. As first-filers, all of the Generics, upon FDA approval, were entitled to share in 180 days
of exclusive marketing, a characteristic of the Hatch-Waxman Act, Pub. L. No. 98-417. On March
28, 2003, following the Generics’ ANDA filings, Cephalon, Inc. sued the Generics for patent
infringement.

All of the litigation between Cephalon, Inc. and the Generics was settled between
December 2005 and February 2006, while motions for summary judgment were pending. The
settlements each permitted the Generics to launch their generic Provigil product on April 6, 2012,
prior to the expiration of the RE ‘516 patent. The agreements further contained “contingent-launch
provisions,” which permitted each Generic to market generic Provigil prior to that date if any other
company marketed generic Provigil, whether through a license or at-risk, or if the RE ‘516 patent
was declared invalid, unenforceable, or not infringed by generic Provigil. Each of these settlement
agreements contained provisions for and/or were signed alongside licenses for intellectual
property, active pharmaceutical ingredient supply agreements, and pharmaceutical development
agreements. Cephalon, Inc. agreed to pay a total of approximately $300 million to the Generics

as a result of these agreements.
In subsequently-filed litigation, various groups—including direct purchasers, end-payors,
a generic drug companies, retail drug distributors, the Federal Trade Commission, and States
Attorneys General—alleged that these settlement transactions between Cephalon, Inc. and the
Generics were anticompetitive “reverse-settlement” payments that violated antitrust laws.
Specifically, they contended that but for these payments, the Generics would have launched
generic Provigil at risk, and thus lower-cost generic competition would have been brought to the
relevant market by June 2006.
B. Brief Procedural History of the Litigation
Multiple end-payor plaintiffs, or EPPs—including both consumers and large Third-Party
payors (“TPPs”) who paid for Provigil and/or modafinil in twenty-seven states and the District of
Columbia—filed antitrust complaints against Defendants. By way of an August 8, 2006 Court

Order, all actions that had been filed alleging claims against Defendants and seeking damages and
other relief for injuries allegedly sustained as a result of Defendants’ anti-competitive conduct
were consolidated for pre-trial purposes.
On April 6, 2009, the consolidated cases were transferred from the Honorable R. Barclay
Surrick to my docket for all further proceedings. The same day I entered an order vacating the
previous case management orders, and consolidating all EPP actions for all purposes under the
caption of Vista Healthplan Inc. v. Cephalon, Inc. et al., Civ. A. No. 06-1833.
An Amended Consolidated Class Action Complaint was filed in August 2009 on behalf of
all of the EPPs. On August 18, 2009, I entered an order formally appointing Kessler Topaz Meltzer
& Check, LLP, Spector Roseman & Kodroff, P.C. and Criden & Love, P.A. as Interim Co-Lead

Class Counsel to act on behalf of all plaintiffs in the EPP putative class action.
At the end of August 2009, Defendants filed renewed motions to dismiss. Following oral
argument, I substantially denied the motions to dismiss. Thereafter, over the next several years,
the parties engaged in extensive discovery involving written discovery, more than 180 depositions,
significant expert discovery, and extensive motion practice.
In 2013, the parties filed summary judgment motions. In March and June 2014, I granted
in part and denied in part the EPPs’ motion, and granted Defendants’ motions on the EPPs’
allegations of an overall conspiracy.
In the interim, the United States Supreme Court issued a decision in F.T.C. v. Actavis, Inc.,
570 U.S. 136 (2013), which recognized that settlements in which a holder of a pharmaceutical
patent makes a payment to an alleged patent infringer to resolve a challenge to the patent—i.e., a
reverse payment settlement—“can sometimes violate the antitrust laws.” Id. at 141. In light of

the guidance provided by Actavis, Defendants filed motions for summary judgment on the EPPs’
claims, which I denied.
The EPPs moved for class certification on May 12, 2014. Following extensive briefing
and a certification hearing, I denied class certification on June 10, 2015. Vista Healthplan, Inc. v.
Cephalon, Inc., No. 06-1833, 2015 WL 3623005 (E.D. Pa. June 10, 2015). Specifically, I found
that the EPPs had not met their burden of proving ascertainability for any class, predominance as
to antitrust impact for the proposed antitrust class, or predominance and superiority as to the
proposed unjust enrichment/consumer protection class. Id. Class Counsel sought immediate
review of this decision under Federal Rule of Civil Procedure 23(f), but the United States Court of
Appeals for the Third Circuit denied the petition.

C. Preliminary Negotiations and Settlement
In January 2014, settlement discussions among the EPPs and Defendants began before
United States Magistrate Judge David R. Strawbridge and two Special Masters, Robert Heim and
Constantine Canon. Following two full days of mediation, Class Counsel continued to engage in
settlement negotiations with Defendants.
The EPPs first reached a settlement with Mylan, which was announced at the class
certification hearing on March 24, 2015. Mylan agreed to pay the EPPs a total of $14,377,600 to
fully resolve all claims against it (“Mylan Settlement Agreement”).
In October 2015, following the Cephalon Defendants’ $1.2 billion settlement with the
Federal Trade Commission (“FTC”), the Cephalon Defendants orally agreed to a settlement with
the EPPS and a separate group of over forty health plans (the “Settling Health Plans” or “SHPs”),
who opted to proceed separately from the class proceedings following the denial of class

certification. The EPPs, SHPs, and the Cephalon Defendants entered a Memorandum of
Understanding (“MOU”) in December 2015, providing for Cephalon to pay $125 million—$48
million to the EPPs and $77 million to the SHPs—in exchange for releases (“Cephalon Settlement
Agreement”).
The Cephalon Settlement Agreement was delayed when United Health Care (“United”),
one of the SHPs that signed the MOU, renounced its agreement to settle and initiated its own
litigation against the Cephalon Defendants, Ranbaxy, and Mylan under Civil Action No. 17-555.
The Cephalon Defendants then sued United, under Civil Action No. 16-4870, to enforce the MOU.
Following summary judgment briefing and a non-jury trial, I determined, on September 19, 2018,
that United was bound by the terms of the MOU. While that litigation was pending, however, the

EPPs, SHPs, and the Cephalon Defendants executed a May 2018 settlement agreement, which
created a carve-out for United, while acknowledging the existence and lack of impact of the MOU
litigation.
The EPPs and Ranbaxy reached a settlement on the eve of trial in September 2018. The
settlement with Ranbaxy is for $3.5 million (“Ranbaxy Settlement Agreement”).
D. Preliminary Approval of the Settlement and Notice
On August 8, 2019, I entered an order for preliminary approval of the proposed settlements
(collectively, the “Settlement”), for preliminary certification of the Settlement Classes, and for
permission to disseminate notice of the proposed Settlement to members of the Settlement Classes
(“Preliminary Approval Order”). The Preliminary Approval Order certified the following classes:
State Antitrust/Consumer Protection Class

All persons or entities in Arizona, California, District of Columbia,
Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan,
Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New
York, North Carolina, North Dakota, South Dakota, Tennessee,
Utah, Vermont, West Virginia, and Wisconsin who purchased
Provigil and/or its generic equivalent intended for consumption by
themselves, their families or their members, employees, plan
participants beneficiaries or insureds between June 24, 2006 and
August 8, 2019.

State Unjust Enrichment Class

All persons or entities in Alabama, Arizona, California, District of
Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, Kentucky,
Louisiana, Maine, Massachusetts, Michigan, Minnesota,
Mississippi, Nebraska, Nevada, New Mexico, New York, North
Carolina, North Dakota, South Dakota, Tennessee, Utah, Vermont,
West Virginia, and Wisconsin who purchased Provigil and/or its
generic equivalent modafinil, intended for consumption by
themselves, their families or their members, employees, plan
participants, beneficiaries or insureds between June 24, 2006 and
August 8, 2019.

(ECF No. 592.)
The following persons or entities were excluded from the proposed Settlement Classes:
(i) the Defendants and their respective subsidiaries, affiliates and employees; (ii) all governmental
entities (except for government funded employee benefit plans); (iii) insured individuals covered
by plans imposing a flat dollar co-pay that was the same dollar amount for generic as for brand
generic purchases; (iv) insured individuals who purchased only generic modafinil (not branded
Provigil) pursuant to a fixed co-pay applicable to generic drugs; (v) United Healthcare Services,
Inc. (“United Healthcare”), including its subsidiaries; and (v) fully-insured health plans, i.e. plans
that purchased insurance from another third-party payor covering 100% of the plan’s
reimbursement obligations to its members. In addition, the Settling Health Plans (“SHPs”),
identified in Schedule A to the Cephalon Settlement, are excluded from the Cephalon Settlement.
Following entry of the Preliminary Approval Order, Class Counsel worked with Settlement
Administrator A.B. Data, Ltd. (“A.B. Data”) to implement the approved notice program (“Notice

Program”). The EPPs coordinated notice with the California State Attorney General, who filed a
separate action in this Court for approval of its own settlement with Cephalon under Civil Action
No. 19-3281 (the “California Settlement”). As described by the EPPs, the Notice Program
consisted of:
• Direct notice to potential Class Members identified through subpoenas to twenty-five
providers of retail pharmacy services and pharmacy benefits managers, including mail-
order pharmacies;
• Direct notice to potential members of the Settlement Class identified through the States’
Attorneys General Provigil Settlement;

• Publication notice in national consumer magazines;
• Internet banner and newsfeed ads on multiple networks, including social media and
targeted websites;
• Distributing notice via PR Newswire’s US1 Newsline;
• Developing and launching a dedicated information website for the Settlement at
ProvigilSettlement.com; and
• Establishing a dedicated toll-free telephone number with an interactive voice response
system and live operators.

(Decl. of Joseph Meltzer (“Meltzer Decl.”), Ex. 4, ¶¶ 3, 6–19.)
As described in the Notice, in order to submit claims, Class Members need only provide
information regarding the total amount they paid for Provigil or modafinil from June 24, 2006
through August 8, 2019, with only one proof of purchase, which can take any number of forms
including pharmacy records, an insurance EOB (explanation of benefits) form, or letter from the

claimant’s doctor. (Decl. of Eric Miller (“Miller Decl.”), Ex. C.) Absent a proof of purchase, a
Class Member can seek help from the Settlement Administrator to file a valid claim. (Id.) As then
explained in the End-Payors’ Plan of Allocation, the Settlement Administrator will review and
process all submitted claims to determine whether there are any deficiencies and, if so, to notify
the Claimant how to cure the deficiency. (Meltzer Decl., Ex. 5.) Once all non-deficient claims
are collected, the Settlement Administrator will review the claims to determine which claims are
authorized for approval or are ineligible. (Id.)
The proposed Plan of Allocation then calls for payment of any approved attorneys’ fees,
litigation costs, settlement administration costs, escrow administration costs, and incentive
payments from the settlement funds received from each of the three Defendants. Following those

disbursements, the net settlement funds (“Net Class Settlement Fund”) will be used to pay class
claims that have been approved and authorized. The Net Class Settlement Fund will be disbursed
to “Authorized Consumer Claimants” (who will receive 14% of the net Class Settlement Fund)
and “Authorized Third Party Payor (TPP) Claimants” (who will receive 86% of the Net Class
Settlement Fund) by the Settlement Administrator, under the supervision of Class Counsel and
upon Court approval. If there are sufficient funds, each Authorized Consumer Claimant shall
receive 100% of their Authorized Consumer Claim (reduced by money that the Authorized
Consumer Claimant has received in any other modafinil settlement). If there are insufficient funds
to pay each Authorized Consumer Claimant 100% of their Authorized Consumer Claim, then each
Authorized Consumer Claimant shall receive a pro rata share of the fund. If, after all Authorized
Consumer Claimants are paid 100% of their claims, funds remain in the Consumer Distribution
Fund, those remaining funds shall be added to the TPP Settlement Fund and paid out to Authorized
TPP Claimants.

As of February 2020, there were a total of eighteen potential Class Members who sought
exclusion from the Class. (Supp. Decl. of Eric Miller (Supp. Miller Decl.) ¶¶ 5–6.) Nearly 40,000
Settlement Class Members had responded by filing claims to participate in the Settlement. (Id. ¶
7.) Finally, there were objections from three potential Class Members—Barry Balach, Carlton
Davis, and Daniel Dunham—each of whom submitted a one to two page letter.
E. Motion for Final Approval
In December 2019, Class Counsel filed the present Motion for Approval of Proposed
Settlements with All Defendants, for Certification of Settlement Classes, and for Final Approval
of the Plan of Allocation. Class Counsel also filed a Motion for an Award of Attorneys’ Fees, for
Reimbursement of Litigation Expenses, and for Incentive Awards for the Class Representatives.

I held a final fairness hearing on February 26, 2020 on both this $65,877,600 Settlement
and the $25.25 million California Settlement.
II. LEGAL STANDARDS
Class actions settlements are distinguished from those in most normal suits because
Federal Rule of Civil Procedure 23(e) mandates that “[a] class action shall not be dismissed or
compromised without the approval of the court.” Fed. R. Civ. P. 23(e); see also In re GMC Pick–
Up Truck Fuel Tank Prods. Liab. Litig. (“G.M. Trucks”), 55 F.3d 768, 785 (3d Cir. 1995). This
rule “imposes on the trial judge the duty of protecting absentees, which is executed by the court’s
assuring the settlement represents adequate compensation for the release of the class claims.” In
re Prudential Ins. Co. Am. Sales Litig., 148 F.3d 283, 316 (3d Cir. 1998) (quoting G.M. Trucks, 55
F.3d at 805). A district court may approve a settlement agreement only “after a hearing and on
finding that it is fair, reasonable, and adequate.” In re Nat’l Football League Players Concussion
Injury Litig. (“In re NFL”), 775 F.3d 570, 581 (3d Cir. 2014) (quoting Fed. R. Civ. P.

23(e)(2)). The factual determinations necessary to make Rule 23 findings must be made by a
preponderance of the evidence. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d
Cir. 2008).
In order to fulfill this duty, the court is required to “independently and objectively analyze
the evidence and circumstances before it in order to determine whether the settlement is in the best
interest of those whose claims would be extinguished.” In re Cendant, 264 F.3d 201, 231 (3d Cir.
2001). “The court cannot accept a settlement that the proponents have not shown to be fair,
reasonable and adequate.” G.M. Trucks, 55 F.3d at 785 (quotations omitted). While the court is
to employ a vigorous analysis in fulfilling its fiduciary duty to protect the rights of absent class
members, it must also “guard against demanding too large a settlement based on its view of the

merits of the litigation; after all, settlement is a compromise, a yielding of the highest hopes in
exchange for certainty and resolution.” In re Prudential, 148 F.3d at 317 (quoting G.M. Trucks, 55
F.3d at 806). “The decision of whether to approve a proposed settlement of a class action is left
to the sound discretion of the district court.” Id. at 299 (quoting Girsh v. Jepson, 521 F.2d 153,
156 (3d Cir. 1975)).
Where, as here, the court has not already certified the class prior to evaluating
the settlement, the court must determine whether the proposed settlement class satisfies the
requirements of Rule 23(a) and (b), and then separately determine whether the settlement is fair to
the class under Rule 23(e). In re NFL, 775 F.3d at 581; In re Pet Food Prods. Liab. Litig., 629
F.3d 333, 341 (3d Cir. 2010).
Under Rule 23(h), at the conclusion of a successful class action, class counsel may apply
to a court for an award of attorney’s fees. The amount of an attorney’s fee award “is within the

district court's discretion so long as it employs correct standards and procedures and makes finding
of fact not clearly erroneous[.]” Sullivan v. DB Invs., Inc., 667 F.3d 273, 329 (3d Cir. 2011) (en
banc) (internal quotation marks omitted).
III. CERTIFICATION OF A SETTLEMENT CLASS
Prior to inquiring into the fairness of the Settlement, I must first ensure that the certification
requirements set forth in Federal Rule of Civil Procedure 23(a) and (b) have been satisfied.
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619 (1997); In re NFL, 775 F.3d at 581. The
Supreme Court has made clear that “[s]ettlement is relevant to a class certification.” Amchem
Prods., 521 U.S. at 619. Consequently, a district court “may take the proposed settlement into
consideration when examining the question of certification.” In re Prudential Ins. Co., 148 F.3d

at 308. Specifically, the Supreme Court has explained:
Confronted with a request for settlement-only class certification, a
district court need not inquire whether the case, if tried, would
present intractable management problems, for the proposal is that
there be no trial. But other specifications of [Rule 23]—those
designed to protect absentees by blocking unwarranted or
overbroad class definitions—demand undiluted, even heightened,
attention in the settlement context. Such attention is of vital
importance, for a court asked to certify a settlement class will lack
the opportunity, present when a case is litigated, to adjust the class,
informed by the proceedings as they unfold.

Amchem, 521 U.S. at 620 (citations omitted). The court should put particular emphasis on the
Rule 23(a)(4) requirement that the representative will fairly and adequately protect the interests of
the class. In re Pet Food Prods., 629 F.3d at 341–42.
To obtain certification, a class must satisfy the requirements of Federal Rule of Civil
Procedure 23(a), which sets forth four prerequisites to class certification:
(1) the class is so numerous that joinder is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the
interests of the class.

Fed. R. Civ. P. 23(a).

Following consideration of these four prerequisites—often referred to as numerosity,
commonality, typicality, and adequacy of representation—the court must examine whether the
class falls within one of the three categories of class actions set forth in Federal Rule of Civil
Procedure 23(b). In re Cmty. Bank of N. Va., 418 F.3d 277, 302 (3d Cir. 2005). The EPPs move
for class certification under Rule 23(b)(3), which provides for certification when:
[T]he court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy. The
matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation
of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3). Stated differently, to satisfy Rule 23(b)(3), the court must find
“predominance” and “superiority.” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 527 (3d
Cir. 2004).
Finally, the Third Circuit has recognized that Rule 23(b)(3) carries with it an

“ascertainability” requirement. Byrd v. Aaron’s Inc., 784 F.3d 154, 161–62 (3d Cir. 2015). “The
ascertainability requirement as to a Rule 23(b)(3) class is consistent with the general understanding
that the class-action deviates from the normal course of litigation in large part to achieve judicial
economy.” Id. at 162. It “ensures that a proposed class will actually function as a class.” Id. The
Third Circuit has explained that “[t]he ascertainability inquiry is two-fold, requiring a plaintiff to
show that: (1) the class is defined with reference to objective criteria, and (2) there is a reliable
and administratively feasible mechanism for determining whether putative class members fall
within the class definition.” Id. at 163 (internal quotation marks omitted).
Ultimately, a court’s class certification analysis must be “rigorous.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350–51 (2011). “[T]he decision to certify a class calls for findings by the

court, not merely a ‘threshold showing’ by a party, that each requirement of Rule 23 is met,” and
that “[f]actual determinations supporting Rule 23 findings must be made by a preponderance of
the evidence.” Hydrogen Peroxide, 552 F.3d at 307. Thus, “to certify a class the district court
must find that the evidence more likely than not establishes each fact necessary to meet the
requirements of Rule 23.” Id. at 320.
A. Rule 23(a) Requirements
1. Numerosity
A plaintiff seeking certification must first demonstrate that the class is so numerous that
joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). “In recent years, the numerosity
requirement has been given ‘real teeth.’” Mielo v. Steak ‘n Shake Operations, Inc., 897 F.3d 467,
484 (3d Cir. 2018). Third Circuit precedent demands that a court “make a factual determination,
based on the preponderance of the evidence, that Rule 23’s requirements have been met.” Id.
(quoting Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 596 (3d Cir. 2012)).

The first part of the numerosity inquiry is the size of the class. “No magic number exists
satisfying the numerosity requirement, nor must plaintiff allege the exact number or identity of
class members.” Moskowitz v. Lopp, 128 F.R.D. 624, 628 (E.D. Pa. 1989); see also Chakejian v.
Equifax Info. Servs., LLC, 256 F.R.D. 492, 497 (E.D. Pa. 2009). As a general rule, “if the named
plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule
23(a) has been met.” Stewart v. Abraham, 275 F.3d 220, 226–27 (3d Cir. 2001). On the other
hand, a class of fifteen to twenty is likely too small to meet the numerosity requirement. In re
Modafinil Antitrust Litig., 837 F.3d 238, 250 (3d Cir. 2016). Classes with between twenty-one
and forty members are given varying treatment, depending on the circumstances of each case. Id.
The second half of the numerosity inquiry looks at the impracticability of joinder. Whether

joinder of all of the class members would be impracticable depends on the circumstances
surrounding the case and not merely on the number of class members. In re Modafinil, 837 F.3d
at 249. The Third Circuit has enumerated a non-exhaustive list of factors to consider, including:
judicial economy, the claimants’ ability and motivation to litigate as joined plaintiffs, the financial
resources of class members, the geographic dispersion of class members, the ability to identify
future claimants, and whether the claims are for injunctive relief or for damages. Id. at 253. Of
those factors, both judicial economy and the ability to litigate as joined parties are of primary
importance. Id.
Where, as here, plaintiffs seek a to certify a class of thousands of Consumer Class Members
and TPP Class Members, numerosity is easily satisfied. See In re Wellbutrin XL Antitrust Litig.,
282 F.R.D. 126, 137 (E.D. Pa. 2011) (finding numerosity met where plaintiff class involved
hundreds of thousands of consumer class members and thousands of TPP class members). In my

prior Opinion denying certification of a litigation class, I noted that the EPPs’ expert had identified
in excess of five million total Provigil prescriptions filled in the relevant jurisdictions from 2006
through January 2011. Vista Healthplan, Inc. v. Cephalon, Inc., 06-1833, 2015 WL 3623005, at
*13 (E.D. Pa. June 10, 2015) (“Prior Certification Opinion”). Consistent with that prior decision,
I again find numerosity satisfied.
2. Commonality
Rule 23(a)(2) next requires Plaintiffs to demonstrate that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). “[C]ommonality does not require perfect identity
of questions of law or fact among all class members. Rather, ‘even a single common question will
do.’” Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (quoting Dukes, 564 U.S. at

359). “The focus of the commonality inquiry is not on the strength of each plaintiff’s claim, but
instead is on whether the defendant[s’] conduct was common as to all of the class members.”
Rodriguez v. Nat’l City Bank, 726 F.3d 372, 382 (3d Cir. 2013) (internal quotation and citations
omitted). All plaintiffs need not suffer the same injury. The fact that the plaintiffs were subjected
to the injury or faced the immediate threat of these injuries suffices for Rule 23. Baby Neal for
and by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994); see also Rodriguez, 726 F.3d at 383
(“[T]here may be many legal and factual differences among the members of a class, as long as all
were subjected to the same harmful conduct by the defendant.”). “Even where individual facts
and circumstances do become important to the resolution, class treatment is not precluded.” Baby
Neal, 43 F.3d at 57.
Ultimately, the commonality bar is not a high one. Rodriguez, 726 F.3d at 382. To satisfy
Rule 23(a)(2), the resolution of the common question of law or fact must “resolve an issue that is

central to the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350.
Commonality exists in cases where “[e]ach putative class member alleges that Defendants caused
overcharges by engaging in an anticompetitive scheme to delay and suppress generic competition.”
In re Loestrin 24 Fe Antitrust Litig., No. 13-2472, 2019 WL 3214257, at *11 (D.R.I. July 2, 2019);
see also In re Flonase Antitrust Litig., 284 F.R.D. 207, 217 (E.D. Pa. 2012) (“Resolving the
allegations surrounding [defendant’s] alleged conduct in delaying generic entry will resolve issues
that are ‘central to the validity of each one of the claims in one stroke.’”)
In my Prior Certification Decision, I noted that the Class Members’ claims here depend on
common evidence of whether or not Defendants engaged in anticompetitive behavior to limit the
entry of generic competitors. Vista Healthplan, 2015 WL 3623005, at *14. At this stage, that

common question remains. Accordingly, I find that commonality has been satisfied.
3. Typicality
The third Rule 23(a) factor considers typicality. “Typicality” aids a court in determining
whether “maintenance of a class action is economical and whether the named plaintiff’s claim and
the class claims are so interrelated that the interests of the class members will be fairly and
adequately protected in their absence.” Marcus, 687 F.3d at 597–98 (citing Gen. Tel. Co. of the
Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982)). Typicality “screen[s] out class actions in which
the legal or factual position of the representatives is markedly different from that of other members
of the class even though common issues of law or fact are present.” Id. at 598. To determine
whether a named plaintiff is markedly different from the class as a whole, the court must address
three distinct concerns: “(1) the claims of the class representative must be generally the same as
those of the class in terms of both (a) the legal theory advanced and (b) the factual circumstances
underlying that theory; (2) the class representative must not be subject to a defense that is both

inapplicable to many members of the class and likely to become a major focus of the litigation;
and (3) the interests and incentives of the representative must be sufficiently aligned with those of
the class.” Id. at 598 (quoting In re Schering Plough Corp. ERISA Litig., 589 F.3d 585, 599 (3d
Cir. 2009)).
The Third Circuit has set a “low threshold” for typicality, such that “[e]ven relatively
pronounced factual differences will generally not preclude a finding of typicality where there is a
strong similarity of legal theories or where the claim arises from the same practice or course of
conduct.” In re NFL, 821 F.3d at 428 (internal quotation marks omitted). “[I]n instances wherein
it is alleged that the defendants engaged in a common scheme relative to all members of the class,
there is a strong assumption that the claims of the representative parties will be typical of the absent

class members.” In re Linerboard Antitrust Litig., 203 F.R.D. 197, 207 (E.D. Pa. 2001) (quotations
omitted).
In my Prior Certification Opinion, I noted that typicality was established because both the
named and absent Class Members maintained the same claims and legal theories—that the
allegedly anticompetitive conduct of Cephalon and the Generic Defendants constituted a violation
of state antitrust, consumer protection and unjust enrichment laws. Vista Healthplan, 2015 WL
3623005, at *14. I also found that there were no potential conflicts of interest. Nothing in the
record before me suggests anything to undermine these findings. As such, I deem typicality
satisfied.
4. Adequacy of Representation
The last Rule 23(a) factor considers adequacy of representation. “The principal purpose of
the adequacy requirement is to determine whether the named plaintiffs have the ability and the
incentive to vigorously represent the claims of the class.” In re Cmty. Bank of N. Va. Mortg.

Lending Practices Litig., 795 F.3d 380, 393 (3d Cir. 2015). The adequacy requirement has two
components: (1) the interests and incentives of the representative plaintiffs; and (2) the experience
and performance of class counsel. Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 181
(3d Cir. 2012) (citation omitted).
Questions concerning the adequacy of class counsel are governed by Federal Rule of Civil
Procedure 23(g), which requires a court to consider the following: (1) the work counsel has done
in identifying or investigating potential claims in the action; (2) counsel’s experience in handling
class actions, other complex litigation, and claims of the type asserted in the action; (3) counsel’s
knowledge of the applicable law; and (4) the resources counsel will commit to representing the
class. Fed. R. Civ. P. 23(g); see also Dewey, 681 F.3d at 181 n.13 (noting that adequacy of class

counsel must be considered under factors in Fed. R. Civ. P. 12(g)).
As I found in my Prior Certification Opinion, there is no valid challenge to the adequacy
of Class Counsel, all of whom have extensive experience handling complex class action litigation,
particularly in the antitrust context. Vista Healthplan, 2015 WL 3623005, at *15. Class Counsel
was appointed as Interim Class Counsel in August 2009, and has managed the case with efficiency
and professionalism ever since.
As to the adequacy of the class representatives, I likewise harbor no doubts. Again, as I
found in my Prior Certification Opinion, there is no real probability of a conflict of interest among
Class Members and “[a]ll [C]lass [M]embers have a common interest in maximizing classwide
damages.” Id. at *16. Any speculative concerns about damages allocation that presented during
the litigation class certification proceedings are no longer a concern at this settlement stage of the
case.
B. Rule 23(b)(3) Requirements

1. Predominance
The predominance requirement is similar to commonality and “tests whether proposed
classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 623 (1997). While commonality and predominance present similar
considerations, the predominance standard is “far more demanding.” In re Hydrogen Peroxide
Antitrust Litig., 552 F.3d 305, 311 (3d Cir. 2008), as amended (Jan. 16, 2009) (quotations omitted).
The plaintiff need not prove his claims for purposes of the predominance inquiry. He must only
show that he can establish the elements of his claim at trial by common, and not individualized,
proof. Sullivan v. DB Invs., Inc., 667 F.3d 273, 305 (3d Cir. 2011).
“Rule 23(b)(3) requires a showing that questions common to the class predominate, not

that those questions will be answered, on the merits, in favor of the class.” Amgen, Inc. v.
Connecticut Retirement Plans and Trust Funds, 568 U.S. 455, 459 (2013) (emphasis in original).
The merits underlying the cause of action need be considered only to the extent that they are
“enmeshed” with the certification inquiry. Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013)
(citations omitted). “Put another way, what matters for purposes of the predominance
determination is whether there are common questions, not common answers.” In re Mushroom
Direct Purchaser Antitrust Litig., 319 F.R.D. 158, 187–88 (E.D. Pa. 2016). As such, to decide
whether class-action treatment is appropriate, the court must “give careful scrutiny to the relation
between common and individual questions.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036,
1045 (2016). Common questions are those “where the same evidence will suffice for each member
to make a prima facie showing or the issue is susceptible to generalized, class-wide
proof.” Id. (quotation and alterations omitted). Individual questions are those “where members
of a proposed class will need to present evidence that varies from member to

member . . . ” Id. (quotation omitted).
To assess predominance at the certification stage, a court must examine each element of
the asserted legal claim “through the prism” of Rule 23(b)(3). Marcus, 687 F.3d at 600 (quoting In
re DVI, Inc. Sec. Litig., 639 F.3d 623, 630 (3d Cir. 2011)). The plaintiff must “demonstrate that
the element of [the legal claim] is capable of proof at trial through evidence that is common to
the class rather than individual to its members.” Id. (quoting Hydrogen Peroxide, 552 F.3d at 311).
Thus, a court must predict how specific issues will play out at trial “in order to determine whether
common or individual issues predominate in a given case.” Malack v. BDO Seidman, LLP, 617
F.3d 743, 746 (3d Cir. 2010) (quoting Hydrogen Peroxide, 552 F.3d at 311).
Here, the EPPs set forth antitrust violations and state consumer protection claims. I address

each individually.
a. Antitrust Class
For the antitrust class, the EPPs must show that common issues predominate with respect
to their ability to prove: (1) a violation of the antitrust laws; (2) antitrust impact from the violation,
i.e. causation; and (3) measurable damages. See Hydrogen Peroxide, 552 F.3d at 311.
With respect to the first element—antitrust violation—my Prior Certification Opinion
found that predominance clearly existed. Vista Healthplan, 2015 WL 3623005, at *16. This
finding continues to hold true at the settlement stage. The United States Supreme Court has noted
that “[p]redominance is a test readily met in certain cases alleging consumer [] fraud or violations
of antitrust laws.” Amchem, 521 U.S. at 625; see also In re Warfarin, 391 F.3d 516, 528 (3d Cir.
2004). As a general rule, liability for anticompetitive conduct focuses on the defendants’ actions,
not the conduct of individual class members. In re Warfarin, 391 F.3d at 528. “The issues of
relevant market, monopoly power, and exclusionary conduct can be proven using common, class-

wide evidence because such issues focus on the defendants’ conduct rather than
individual class members.” In re Wellbutrin, 282 F.R.D. at 140. Accordingly, I deem
predominance satisfied on this element.
With respect to the third element of damages, the EPPs need to demonstrate that common
issues predominate as to the element of “measurable damages” on a classwide basis. Hydrogen
Peroxide, 552 F.3d at 311–12 (citing 15 U.S.C. § 15). “[T]he plaintiffs are not required to
prove damages by calculating specific damages figures for each member of the class, but rather
they must show that a reliable method is available to prove damages on a class-wide basis.” In re
Wellbutrin, 282 F.R.D. at 144. Variation of damages between and among class members does not
necessarily defeat predominance. In re Processed Egg Prods. Antitrust Litig., 312 F.R.D. 171, 203

(E.D. Pa. 2015).
In my Prior Certification Opinion, I found that the EPPs had demonstrated predominance
with respect to antitrust damages. Vista Healthplan, 2015 WL 3623005, at *22–25. I noted that
Plaintiff’s economist, Dr. Hartman, presented a formulaic and well-established methodology by
which to calculate damages on a class-wide basis. Id. at *25. As that is the same measure of
damages to be used with the Settlement Class, I find that predominance is satisfied.
Finally, with respect to the second element of antitrust impact, the EPPs must demonstrate
that they can prove by common evidence that the Class Members suffered an injury, or antitrust
impact, from the antitrust violation. In re Processed Egg Prods., 312 F.R.D. at 183. As to this
element—unlike with the previous elements—my Prior Certification Opinion declined to find that
the EPPs had established predominance. Vista Healthplan, 2015 WL 3623005, at *21.
Specifically, I credited the testimony of Defendants’ expert that numerous groups of uninjured
persons remained within the class definition, including, for example: TPPs that were uninjured
due to capitation agreements2 between the TPPs and pharmacies; TPPs that paid more for the

generic than branded Provigil because they aggressively promoted generic substitution through
their copayment structure; consumers with no out-of-pocket payment; and consumers who
received no cost-benefit from switching to the generic. Id. at *19–20. I further noted that the EPPs
had put forth no methodology using common evidence to identify these uninjured persons,
meaning that every Class Member would need to be reviewed on an individualized basis to see if
they were impacted by Defendants’ anticompetitive actions. Id. at *19.
These concerns are no longer at issue for several reasons.
First, the EPPs have redefined the Settlement Classes to specifically exclude: (1) insured
individuals covered by plans imposing a flat dollar co-pay that was the same dollar amount for

generic as for brand drug prices, and (2) insured individuals who purchased only generic modafinil
pursuant to a fixed co-pay applicable to generic drugs. These exclusions are specified on the
Consumer Claim form, and in order to participate in the Settlement, Class Members must swear in
their claim forms, under penalty of perjury, that they do not fall within such exclusions. (Meltzer
Decl., Ex. 4, at exhs. C and D.) This process carves out the uninjured individuals and eliminates
some of my prior concerns about the inclusion of uninjured persons or entities.

2 According to the EPPs’ expert, W. Paul DeBree, a “capitation contract” is an agreement that
provides for the payment of a flat fee for each covered individual. (Expert Report of W. Paul
DeBree (“DeBree Report”), ECF No. 586-11, ¶ 35.)
Second, as defined, the Settlement Classes condition class membership on a Provigil or
modafinil “purchase,” which requires claiming Class Members to verify that they paid for such a
purchase or purchases. (Id.) This refined definition excludes consumers with no out-of-pocket
payment for Provigil or modafinil.

Finally, the EPPs have produced the report of W. Paul DeBree, an expert in the Pharmacy
Benefit Manager (“PBM”) Industry, to address my previous concerns that the proposed litigation
class included uninjured TPPs, such as (a) those with capitation agreements with pharmacies and
(b) those that pay more for the generic than branded Provigil because they aggressively promote
generic substitution through their co-payment structure. At the time of the prior certification
proceedings, the EPPs had no information about or response to the inclusion of these TPPs. Mr.
DeBree now explains that, with respect the first possible category of uninjured TPPs, capitation
agreements have not existed in the TPP marketplace for over a decade and were not in place “in
any meaningful way” during any part of the class period, making the existence of TPP Class
Members with such plans very unlikely. (Expert Report of W. Paul DeBree (“DeBree Report”),

ECF No. 586-11, ¶ 35.) As to second proposed category of uninjured TPPs, Mr. DeBree opines
that “the theoretical possibility that a TPP would pay more for the generic modafinil than for the
branded Provigil version of modafinil due to a co-pay structure is virtually non-existent. As a
practical matter the differential between branded and generic prices for expensive drugs, like
Provigil, so substantially exceed the differential between the co-pays for each that the amount paid
by the TPP for the branded drug will always be greater.” (Id. ¶ 47.)
Given this enhanced record with a new expert opinion, together with refined class
definitions, I find that the EPPs have cured the problems of predominance found within the
proposed litigation class. Indeed, unlike previously “where the certification inquiry was set against
the backdrop of an impending trial, here we are not as concerned with ‘formulat[ing] some
prediction’ as to how this element of [an antitrust] violation would ‘play out’ at trial . . . ‘for the
proposal is that there be no trial,’ . . . and instead our inquiry into the element of antitrust injury is
solely for the purpose of ensuring that issues common to the class predominate over individual

ones.” In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 269 (3d Cir. 2009) (internal quotations
omitted). Accordingly, for purposes of certifying a settlement class, I find that the element of
predominance is satisfied.
b. State Unjust Enrichment/Consumer Protection Class
With respect to the state unjust enrichment/consumer protection claims, I previously found
that predominance could not be satisfied due to material differences in state law. Vista Healthplan,
2015 WL 3623005, at *33–34. Specifically, I remarked that because of the variations in state law,
combined with the EPPs’ inability to account for those differences during trial, common issues did
not predominate. Id.
This concern is no longer relevant at the settlement class stage. “Confronted with a request

for settlement-only class certification, a district need not inquire whether the case, if tried, would
present intractable management problems.” Amchem Prods., 521 U.S. at 620. “[V]ariations [in
state laws] are irrelevant to certification of a settlement class since a settlement would eliminate
the principal burden of establishing the elements of liability under disparate laws.” Sullivan, 667
F.3d at 303 (internal quotations omitted) (alterations in original). Accordingly, I find that the state
law variations do not defeat predominance as to the state unjust enrichment/consumer protection
class.
2. Superiority
In addition to predominance, plaintiffs seeking certification under Rule 23(b)(3) must show
that “a class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). To determine whether plaintiffs have met their burden on

superiority, courts consider “class members’ interests in pursuing separate actions, the extent of
any independent litigation already begun by class members, the desirability of concentrating the
litigation in this forum, and the difficulties likely to be encountered in the management of a class
action.” In re Mushroom, 319 F.R.D. at 208 (quotations omitted). “In settlement situations, the
superiority requirement arguably translates into the question whether the settlement is a more
desirable outcome for the class than individualized litigation, and may assure that the settlement
has not grossly undervalued plaintiffs’ interests.” Newton v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 259 F.3d 154, 192 (3d Cir. 2001) (citing G.M. Trucks, 55 F.3d at 796).
In my Prior Certification Opinion, I found that superiority was not met because the EPPs
had failed to offer a manageable and efficient way to instruct the jury on the important substantive

differences in the various states’ laws. As noted above, however, that litigation manageability
concern is no longer an issue as the Settlement resolves the case without trial. Moreover, and
perhaps more importantly, I note that many of the individual Class Members have smaller damage
awards, which they would likely not individually litigate against the behemoth pharmaceutical
companies that comprise the Defendants. See In re Namenda Direct Purchaser Antitrust Litig.,
331 F. Supp. 3d 152, 220 (S.D.N.Y. 2018) (“Class treatment is appropriate in such ‘negative value
cases,’ in which each class members’ interest in the litigation is less than the cost to maintain an
individual action.”). The Settlement therefore provides monetary remuneration for individuals and
small health plans who would likely otherwise have no recovery. Accordingly, I deem the
superiority element satisfied.
C. Ascertainability
The final element that I must consider regarding certification of the Settlement Classes is

whether the classes are ascertainable.
“[A]scertainability” is closely tied to the requirement that plaintiffs provide a proper class
definition. Byrd v. Aaron’s, Inc., 784 F.3d 154, 164 (3d Cir. 2015). “A trial court . . . needs
a class to be ‘defined with reference to objective criteria’ and some assurance that there can be ‘a
reliable and administratively feasible mechanism for determining whether putative class members
fall within the class definition,’ in order to rigorously analyze the explicit Rule 23(a) and (b)
certification requirements.” Id. at 164–65 (internal citations omitted). The separate
ascertainability requirement ensures that class members can be identified after certification and,
therefore, “prepares a district court to direct to class members the best notice that is practicable
under the circumstances.” Id. at 165 (internal quotation marks omitted). “If class members are

impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a
class action is inappropriate.” Marcus, 687 F.3d at 593.
The Third Circuit has clarified that the ascertainability inquiry is “narrow.” Byrd, 784
F.3d at 165. “If defendants intend to challenge ascertainability, they must be exacting in their
analysis and not infuse the ascertainability inquiry with other class-certification requirements.” Id.
“[A]scertainability only requires the plaintiff to show that class members can be identified.”
Carerra v. Bayer Corp., 727 F.3d 300, 308 n.2 (3d Cir. 2013). The proposed method for identifying
class members must be “administratively feasible,” meaning that “identifying class members is a
manageable process that does not require much, if any individual factual inquiry.” Carrera, 727
F.3d at 307–08 (quotations omitted).
In my Prior Certification Opinion, I found that the EPPs had failed to present a clear
methodology to identify Class Members and distinguish Class Members from persons that fell

within an exclusion. Vista Healthplan, 2015 WL 3623005, at *10. I further found that the EPPs
had not established any administratively feasible approach that would be effective without
extensive individualized inquiry and mini-trials. Id.
Here, the revised class definitions and Notice Program obviate all of my previous
ascertainability concerns. As detailed above, the Classes were re-defined to exclude (1) insured
individuals covered by plans imposing a flat dollar co-pay that was the same dollar amount for
generic as for brand drug prices, and (2) insured individuals who purchased only generic modafinil
pursuant to a fixed co-pay applicable to generic drugs. These exclusions are specified on the
Consumer Claim form and, in order to participate in the Settlement, Class Members must swear in
their claim forms, under penalty of perjury, that they do not fall within such exclusions. (Miller

Decl., Exs. C & D.) The proposed Settlement Classes specifically condition class membership on
a Provigil or modafinil “purchase” and require claiming Class Members to verify that they paid
for such a purchase. (Id.)
Moreover, the Notice Program has borne out the desired results of identifying Class
Members. As set forth above, the Notice Program consisted of (a) direct notice to potential Class
Members identified through subpoenas to twenty-five providers of retail pharmacy services and
pharmacy benefits managers, including mail-order pharmacies; (b) direct notice to potential
members of the Settlement Class identified through the A.G. Provigil Settlement; (c) publication
notice in national magazines; (d) internet banner and newsfeed ads on multiple networks; (e)
distributing notice via PR Newswire’s US1 Newsline; (f) developing and launching a dedicated
informational website for the Settlement at ProvigilSettlement.com; and (g) establishing a
dedicated toll-free telephone number. As a result of this Notice Program, over 40,000 eligible
claimants have been identified. As represented by the EPPs’ Class Counsel, all money obtained

from the Settlement will be distributed, leaving no surplus.
Ultimately, I find that the EPPs have met their burden of setting forth objective criteria by
which the Settlement Classes are defined and providing reasonable assurance of a reliable and
administratively feasible mechanism for determining whether putative Class Members fall within
the class definition. My previous concerns about the need for individualized fact-finding or mini-
trial to identify Class Members has been adequately addressed by the EPPs.
D. Conclusion as to Class Certification
Following a “rigorous analysis,” I find that the EPPs have proven that class certification is
warranted and proper. The EPPs have established all of the Rule 23(a) elements of numerosity,
commonality, typicality, and adequacy of class representation. Moreover, common, class-wide

issues will predominate, and the EPPs have adduced sufficient classwide evidence to prove
anticompetitive conduct, antitrust impact, and damages. Finally, I conclude that a class action is
a superior method to fairly and efficiently adjudicate this controversy, and that the class is
ascertainable. Accordingly, the EPPs’ Motion for Class Certification of the Settlement Classes
will be granted.
E. Appointment of Interim Class Counsel as Class Counsel
Having certified the Settlement Class, I must now appoint Class Counsel.
Questions concerning the adequacy of class counsel are governed by Federal Rule of Civil
Procedure 23(g), which requires a court to consider the following: (1) the work counsel has done
in identifying or investigating potential claims in the action; (2) counsel’s experience in handling
class actions, other complex litigation, and claims of the type asserted in the action; (3) counsel’s
knowledge of the applicable law; and (4) the resources counsel will commit to representing the
class. Fed. R. Civ. P. 23(g); see also Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 181

n.13 (3d Cir. 2012) (noting that adequacy of class counsel must be considered under factors in Fed.
R. Civ. P. 23(g)).
I have already twice determined that the three firms that were appointed as Interim Class
Counsel—Spector Roseman & Kodroff, Kessler Topaz Meltzer & Check, and Criden & Love—
are qualified under Rule 23(g) factors. I have again reviewed these factors in the course of the
adequacy of representation factor of Rule 23 and found that these firms have actively, efficiently,
and competently litigated this case for over twelve years. They have applied their past experience
in handling antitrust class actions and their extensive knowledge of the applicable law, and they
have committed extraordinary resources to this matter. Having no reason to doubt the collective
experience of Interim Class Counsel, I appoint these firms as Class Counsel.

IV. FAIRNESS OF THE SETTLEMENT
After determining that a proposed settlement class may properly be certified under Rule
23, the court must evaluate the fairness of a proposed class action settlement under Rule
23(e). See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 258 (3d Cir. 2009) (“‘Even if it has
satisfied the requirements for certification under Rule 23, a class action cannot be settled without
the approval of the court and a determination that the proposed settlement is fair, reasonable and
adequate.’” (quoting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d
283, 316 (3d Cir. 1998)).
Where, as here, “settlement negotiations precede class certification, and approval
for settlement and certification are sought simultaneously,” the court must protect absentee class
members by applying an “even more rigorous, heightened standard.” In re Pet Food Prods. Liab.
Litig., 629 F.3d 333, 350 (3d Cir. 2010) (internal quotation marks omitted) (In re Warfarin, 391

F.3d 516, 534 (3d Cir. 2004)). However, the Third Circuit, in In re Cendant Corp. Litigation, 264
F.3d 201 (3d Cir. 2001), has directed a district court to apply an initial presumption of fairness
when reviewing a proposed settlement where: “(1) the negotiations occurred at arm’s length; (2)
there was sufficient discovery; (3) the proponents of the settlement are experienced in similar
litigation; and (4) only a small fraction of the class objected.” Id. at 232 n.18; see also In re
Warfarin, 391 F.3d at 535.
In Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975), the Third Circuit “identified certain
factors which district courts may employ in informing their discretion before
granting final approval to the class action settlement.” Schwartz v. Dallas Cowboys Football
Club, Ltd., 157 F. Supp. 2d 561, 571 (E.D. Pa. 2001) (citing Girsh). “[T]he district court must

make findings as to each of the nine Girsh factors in order to approve a settlement as fair,
reasonable, and adequate, as required by Rule 23(e).” In re Pet Food Prods., 629 F.3d at 350.
The Girsh factors include:
(1) the complexity, expense and likely duration of the litigation; (2)
the reaction of the class to the settlement; (3) the stage of the
proceedings and the amount of discovery completed; (4) the risks of
establishing liability; (5) the risks of establishing damages; (6) the
risks of maintaining the class action through the trial; (7) the ability
of the defendants to withstand a greater judgment; (8) the range of
reasonableness of the settlement fund in light of the best possible
recovery; (9) the range of reasonableness of the settlement fund to a
possible recovery in light of all the attendant risks of litigation.

Girsh, 521 F.2d at 157.
Subsequently, in In re Prudential Insurance Company America Sales Practice Litigation
Agent Actions, 148 F.3d 283 (3d Cir. 1999), the Third Circuit cited a “sea-change in the nature
of class actions” and advised that “it may be useful to expand the traditional Girsh factors” when
appropriate. Id. at 323. The additional factors for consideration cited by the Prudential Court

include:
[T]he maturity of the underlying substantive issues, as measured by
experience in adjudicating individual actions, the development of
scientific knowledge, the extent of discovery on the merits, and
other factors that bear on the ability to assess the probable outcome
of a trial on the merits of liability and individual damages; the
existence and probable outcome of claims by other classes and
subclasses; the comparison between the results achieved by
the settlement for individual class or subclass members and the
results achieved—or likely to be achieved—for other claimants;
whether class or subclass members are accorded the right to opt out
of the settlement; whether any provisions for attorneys’ fees are
reasonable; and whether the procedure for processing individual
claims under the settlement is fair and reasonable.

Id. These Prudential factors are “illustrative of additional inquiries that in many instances will be
useful for a thoroughgoing analysis of a settlement’s terms.” In re Pet Food Prods., 629 F.3d at
350.
Finally, in In re Baby Products Antitrust Litigation, 708 F.3d 163 (3d Cir. 2013), the Third
Circuit added that “one of the additional inquiries for a thorough analysis of settlement terms is
the degree of direct benefit provided to the class.”3 Id. at 174. “In making this determination, a
district court may consider, among other things, the number of individual awards compared to both
the number of claims and the estimated number of class members, the size of the individual awards

3 In In re Baby Products, the Third Circuit was addressing a proposed settlement with a cy
pres distribution. It is not entirely clear whether this factor applies only to those settlements that
include cy pres distributions or whether it should be considered in all class settlements. Although
the Settlement here does not include a cy pres component, for the sake of comprehensiveness, I
will address the Baby Products direct benefit consideration here.
compared to claimants’ estimated damages, and the claims process used to determine individual
awards.” Id.
Ultimately, the “decision of whether to approve a proposed settlement of a class action is
left to the sound discretion of the district court,” and the appellate court gives great deference to

the district court’s factual findings. Girsh, 521 F.2d at 156. There is an overriding public interest
in settling class action litigation, and it should therefore be encouraged. See G.M. Trucks, 55 F.3d
at 784 (“The law favors settlement, particularly in class actions and other complex cases where
substantial judicial resources can be conserved by avoiding formal litigation”); In re Sch. Asbestos
Litig., 921 F.2d 1330, 1333 (3d Cir. 1990) (noting that the court encourages settlement of complex
litigation “that otherwise could linger for years”). As a result, “when evaluating a settlement, a
court should be ‘hesitant to undo an agreement that has resolved a hard-fought, multi-year
litigation.” In re Comcast Corp. Set-Top Cable TV Box Antitrust Litig., No. 09-md-2034, 2019
WL 4645331, at *10 (E.D. Pa. Sept. 24, 2019) (quoting In re Baby Prods., 708 F.3d at 175)).
With these standards in mind, my review of the Settlement here entails several steps. I will

first address whether the Settlement is entitled to a presumption of fairness as described in the
Cendant case. I will then individually address the Girsh, Prudential and Baby Products factors.
A. Presumption of Fairness
As set forth above, a proposed settlement is entitled to an initial presumption of fairness
where: “(1) the settlement negotiations occurred at arm’s length; (2) there was sufficient
discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a
small fraction of the class objected.” In re Cendant, 264 F.3d at 232 n.18; see also In re NFL, 821
F.3d at 436.
All of these factors are satisfied here. First, it is undisputed that the settlement negotiations
occurred at arm’s length. The parties began settlement negotiations through two full days of
mediation conducted by United States Magistrate Judge David R. Strawbridge and the two Special
Masters he selected. (Meltzer Decl. ¶ 28.) Over the ensuing pendency of the litigation, settlement

discussions occurred intermittently, ultimately culminating in the Settlement after the denial of
class certification. (Id. ¶¶ 29–32.)
Second, sufficient discovery unequivocally occurred here. Discovery took place over the
course of over twelve years and involved the review and analysis of more than five million pages
of documents, over 180 depositions including those of all five named Plaintiffs, court hearings on
discovery, and extensive motion practice. (Id. ¶¶ 22–24.)
Third, as noted above, Class Counsel, who are the proponents of the Settlement, are highly
experienced in similar class litigation. As I found in my Prior Certification Opinion, Class Counsel
has extensive experience handling complex class action litigation, particularly in the antitrust
context. Vista Healthplan, 2015 WL 3623005, at *15.

Finally, as will be discussed in more detail below, the response to the Class Settlement has
been overwhelmingly favorable. Nearly 40,000 Settlement Class Members have filed claims to
participate in the Settlement, only eighteen potential Class Members have sought exclusion from
the Class, and only three individuals have filed generalized objections.
In light of these factors, I find that the proposed Settlement is entitled to a presumption of
fairness. While this presumption does not obviate the need for scrupulous analysis under the Girsh,
Prudential, and Baby Product factors, it does skew the analysis in favor of approving the
Settlement.
B. Application of the Girsh Factors
1. Complexity, Expense, and Likely Duration of the Litigation (Factor 1)
“The first factor ‘captures the probable costs, in both time and money, of continued
litigation.’” In re Warfarin, 391 F.3d 535–36 (quoting In re Cendant, 264 F.3d at 233)); see also

In re NFL, 821 F.3d at 437.
This suit involves complicated antitrust and patent issues in the realm of pharmaceutical
manufacturing. “An antitrust class action is arguably the most complex action to prosecute . . .”
In re Linerboard Antitrust Litig., 296 F. Supp. 2d 568, 577 (E.D. Pa. 2003) (quotations omitted);
see also In re Flonase Antitrust Litig., 951 F. Supp. 2d 739, 743 (E.D. Pa. 2013) (“Antitrust class
actions are particularly complex to litigate and therefore quite expensive.”). The Settlement
therefore avoided the need for a difficult and expensive multi-week trial involving numerous
Daubert motions, multiple motions in limine, fact witness testimony, and costly expert witness
testimony in scientific and regulatory areas. Moreover, given the significant amount of money at
stake, the likelihood of appeal by either side was high, further multiplying the projected

expenditures. Because such private resolution of the conflict “reduces expenses and avoids delay,”
this factor weighs heavily in favor of approving the Settlement. McDonough v. Toys R Us, Inc.,
80 F. Supp. 3d 626, 640 (E.D. Pa. 2015).
2. Reaction of the Potential Class Members to the Settlements (Factor 2)
The second Girsh factor—the reaction of the classes to the settlement—“attempts to gauge
whether members of the class support the settlement.” In re Warfarin Sodium Antitrust Litig., 212
F.R.D. 231, 254 (D. Del. 2002) (quoting In re Prudential, 148 F.3d at 318).
Here, the Notice to potential Class Members stated that Requests for Exclusions had to be
mailed to the Settlement Administrator so that they were received by December 6, 2019. (Miller
Decl., ECF 600-4, ¶ 21 & Ex. C, ¶ 15.) The Settlement Administrator received a total of eighteen
Requests for Exclusion. (Supp. Miller Decl. ¶ 6.) By contrast, nearly 40,000 Settlement Class
Members have filed claims to participate in the Settlement.
Three objections to the proposed Settlement were filed, none of which I find warrants non-

approval of the Settlement.
First, Mr. Barry Balach challenges the Cephalon Settlement because it does not include
Nuvigil purchases in those for which Class Members may recover. He asserts that any settlement
that does not take into account his out-of-pocket costs for Nuvigil is inadequate. He also believes
the amount of the Settlement is insufficient. (Barry Balach Obj., ECF No. 601.)
I note that the EPPs’ Amended Complaint originally alleged that Cephalon’s launch of
Nuvigil was part of an illegal “product hop” and that Nuvigil purchases should be recoverable
damages. The EPPs’ Class Counsel, however, averred that evidence received during discovery
revealed the weakness of the product hop allegations, and that damages related to Nuvigil
purchases “would be low if not impossible to prove.” (EPPs’ Suppl. Br. 4.) Indeed, Nuvigil

purchases were not recoverable in either the Direct Purchaser Settlement or the States’ Attorneys
General Settlement. As I find the decision to exclude Nuvigil purchases from the Settlement to be
reasonable, I will overrule Mr. Balach’s objection.
The second objection comes from Mr. Carlton Davis, who contends that the Cephalon
Settlement will be an insufficient deterrent because he understood that Cephalon “accrued as much
as $47.25 billion in overcharges” and that the Settlement amount will not impede the illicit conduct
because it is a “mild slap on the wrist to a greed-addicted company.” He also believes that the
Settlement “does nothing to address the real cost inflicted” on society and is “woefully inadequate
to compensate consumers” because only $20 million is going to be paid out to the class. He urges
that he should be compensated for his time and expenses in pursuing his claim, in the amount of
$8,000. (Carlton Davis Obj. ECF No. 602.)
I find no basis to sustain the objection for several reasons. First, Mr. Davis’s objection
relies on an overly-inflated overcharge number. As noted by the EPPs, the overcharge damages

were not calculated to be $47.25 billion, as Mr. Davis believes, but rather were calculated, by the
EPPs’ expert, to be approximately $1.244 billion. (Meltzer Decl. for Preliminary Approval, ECF
No. 586, Ex. 18.) Moreover, the Settlement amount itself is substantial. It gives approximately
$66 million to the EPP class, which, combined with $77 million obtained from the separate group
of Settling Health Plans (“SHP”s), results in a total settlement of $143 million to the entire group
of end-payors for whom the litigation was originally commenced. The amount of the Settlement
is even more substantial when viewed in light of the fact that the EPPs were denied class
certification, meaning that a collective recovery through litigation would have been impossible.
Finally, Mr. Davis’s concerns as to the amount of attorneys’ fees are unfounded, as I will discuss
later in this Opinion.

Mr. Davis’s request for $8,000 in personal attorneys’ fees—unaccompanied by any
documentation—has no legal basis. “Absent a showing that the objector substantially enhanced
the benefits to the class under the settlement, the objector is not entitled to a fee.” In Rent-Way
Secs. Litig., 305 F. Supp. 2d 491, 520 (W.D. Pa. 2003). As Mr. Davis has not demonstrated that
his participation has enhanced the benefits to the class under the settlement, he is not entitled to
any fees. Accordingly, I will overrule Mr. Davis’s objection as well.
Finally, Mr. Daniel Dunham4 generally objects that “[t]he actions alleged, if true, would
require penalties in excess of profit to have any deterring effect” and suggests that “the fund to be

4 Mr. Dunham filed an objection on the docket of the related case brought by the California
Attorney General, but clearly intended to address the EPP Settlement.
distributed be much larger, since victims can obtain nothing more than what was lost due to the
alleged behavior, and the total judgment has a finite limit.” He believes that “there is no reason a
company should retain any of the profit that is earning using unlawful methods.” (Daniel Dunham
Obj., ECF No. 607-4.)

This objection is meritless for the same reasons applied to Mr. Davis’s objection.
Moreover, Mr. Dunham has, contrary to his objection, filed a claim form to participate in the
Settlement. Accordingly, I will overrule this objection as well.
While I appreciate and carefully consider the objections of those who take the time to
participate in what is generally a lawyer-driven settlement, I do not find that any of the three
objections before me raise valid concerns to the fairness and adequacy of the EPP Settlement. By
contrast, the fact that approximately 40,000 individuals have filed forms to participate in the
Settlement reflects significant support for the Settlement. As a “small proportion of objectors does
not favor derailing [the] settlement,” Bell Atl. v. Bolger, 2 F.3d 1304, 1314 (3d Cir. 1993), I find
that this factor weighs in favor of approval.

3. Stage of Proceedings and Amount of Discovery Completed (Factor 3)
Through the “lens” of the third Girsh factor—the stage of the proceedings and the amount
of discovery competed—“courts can determine whether counsel had an adequate appreciation of
the merits of the case before negotiating.” In re Prudential, 148 F.3d at 319 (quoting G.M. Trucks,
55 F.3d at 813). “[P]ost discovery settlements are more likely to reflect the true value of the claim
and be fair.” Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 588 (3d Cir. 1999) (citing Bell Atl. v.
Bolger, 2 F.3d 1304, 1314 (3d Cir. 1993)).
Here, twelve years of active litigation transpired during which extensive discovery was
exchanged, over 180 depositions were taken, expert reports were obtained and exchanged, and
vigorous motion practice was pursued. Only after the denial of class certification and rulings on
summary judgment were issued did the parties reach the Settlement. Moreover, the parties had
the benefit of rulings in the related cases by the States’ Attorneys General and the Direct
Purchasers, as well as my ruling in the patent infringement case brought by Apotex. Given this

record, I find that the parties had a well-developed appreciation of the merits of the case prior to
negotiation.
4. Risks of Establishing Liability & Damages (Factors 4 and 5)
“These factors survey the potential risks and rewards of proceeding to litigation in order to
weigh the likelihood of success against the benefits of an immediate settlement.” In re Warfarin,
391 F.3d at 537.
As I have repeatedly noted over the twelve-year litigation period, a favorable outcome was
far from guaranteed to the EPPs. The EPPs put forth novel theories of antitrust liability in an ever-
changing legal landscape. Defendants—three large pharmaceutical companies—had
immeasurable resources to proceed to and through trial. Even if the EPPs were successful in

establishing an unlawful reverse-settlement payment Actavis scheme with respect to Provigil, they
faced an uncertain battle in establishing causation and damages. “The dispute over damages would
likely have resulted in an expensive battle of the experts and there was no way to anticipate a jury’s
response to intricate economic data.” McDonough, 80 F. Supp. 3d at 644.
By the same token, I note that while the EPPs’ likelihood of prevailing was far from certain,
“there is no indication that this case was brought in bad faith simply to generate attorneys’ fees, or
that the case [was] too weak to succeed under most circumstances.” Reibstein v. Rite Aid Corp.,
761 F. Supp. 2d 241, 253 (E.D. Pa. 2011). Ultimately, the Settlement provided the certainty of a
$66 million immediate recovery without subjecting the EPPs to the rigors of a difficult trial. As
such, I find these factors weigh in favor of the Settlement.
5. Likelihood of Obtaining and Keeping Class Certification Through Trial
(Factor 6)

The sixth Girsh factor “measures the likelihood of obtaining and keeping a class
certification if the action were to proceed to trial” in light of the fact that “the prospects for
obtaining certification have a great impact on the range of recovery one can expect to reap from
the class action.” In re Warfarin, 391 F.3d at 537 (internal quotations & citation omitted). Class
certification is tenuous, as a “district court retains the authority to decertify or modify a class at
any time during the litigation if it proves to be unmanageable.” Id. (citation omitted).
This factor weighs heavily in favor of approval. As noted above, I had already denied class
certification to the EPPs, meaning that any trial in this case would have been only on behalf of the
five individual EPPs and any recovery would have been limited to their individual damages.
Depending on the outcome of that trial, either the named Plaintiffs would have had to appeal my
class certification decision, or the non-named potential Class Members would have had to decide
whether to pursue their own costly individual cases against the Defendants. Given the relatively
small amounts of damages that these individual plaintiffs each sustained, individual litigation
would not likely be feasible.
By contrast, the Settlement here guarantees some recovery to all of the potential Class

Members, both named and unnamed. As such, this factor weighs in favor of approving the
Settlement.
6. Ability of Defendants to Withstand a Greater Judgment (Factor 7)
The ability of the Defendants to withstand a greater judgment generally only comes into
play when “a settlement in a given case is less than would ordinarily be awarded but the
defendant’s financial circumstances do not permit a greater settlement.” Reibstein, 761 F. Supp.
2d at 254. The Third Circuit has noted that simply because a defendant “could afford to pay more
does not mean that it is obligated to pay any more than what the Consumer and TPP Class Members
are entitled to under the theories of liability that existed at the time the settlement was reached.”

In re Warfarin, 391 F.3d at 538.
Here, there is no question that the Defendants’ total resources far exceed the Settlement
amount, and Defendants did not profess any inability to pay during settlement negotiations. That
factor does not appear to have come into play during the settlement negotiations. Defendants’
ability to pay is therefore irrelevant in determining the fairness of the Settlement and I decline to
give it any weight.
7. Range of Reasonableness of Settlement Fund in Light of Best Possible
Recovery and to a Possible Recovery in Light of All Attendant Risks of
Litigation (Factors 8 & 9)

“The last two Girsh factors evaluate whether the settlement represents a good value for a
weak case or a poor value for a strong case. The factors test two sides of the same coin:
reasonableness in light of the best possible recovery and reasonableness in light of the risks the
parties would face if the case went to trial.” In re Warfarin, 391 F.3d at 538 (citations omitted).
In order to assess the reasonableness of a settlement in cases seeking primarily monetary relief,
“the present value of the damages plaintiffs would likely recover if successful, appropriately
discounted for the risk of not prevailing, should be compared with the amount of the proposed
settlement.” In re Prudential, 148 F.3d at 322 (quoting G.M. Trucks, 55 F.3d at 806). In
conducting this evaluation, it is recognized “that settlement represents a compromise in which the
highest hopes for recovery are yielded in exchange for certainty and resolution and [courts should]
guard against demanding too large a settlement based on the court’s view of the merits of the
litigation.” In re Aetna Sec. Litig., No. MDL 1219, 2001 WL 20928, at *11 (E.D. Pa. Jan. 4,
2001). “The fact that a proposed settlement may only amount to a fraction of the potential recovery
does not, in and of itself, mean that the proposed settlement is grossly inadequate and should be
disapproved. The percentage recovery, rather must represent a material percentage recovery to

plaintiff in light of all the risks considered under Girsh.” In re Cendant Corp. Sec. Litig., 109 F.
Supp. 2d 235, 263 (D.N.J. 2000) (citations omitted) (internal quotations marks omitted), aff’d, 264
F.3d 201 (3d Cir. 2001).
The Settlement here is reasonable in light of the best possible recovery. As set forth above,
the Settlement provides $65,877,600 for Class Members, which amount was negotiated
simultaneously with the $77 million settlement from the Cephalon Parties for the Settling Health
Plans. The EPPs’ expert, Dr. Hartman, calculated the total overcharge damages as $1.244 billion.
(Meltzer Decl., ECF No. 586, Ex. 18 ¶ 44.) The total EPP Settlement of $142,877,300 is
approximately 11.5% of that best possible recovery situation. Courts have approved settlements
in and around this range. See In re Linerboard Antitrust Litigation, 321 F. Supp. 2d 619, 633 (E.D.

Pa. 2004) (citing in part In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 325 (N.D.
Ga. 1993) (approving a settlement in the appropriate amount of 12.7 to 15.3 percent of the
estimated $2 billion minimum possible trebled recovery); Erie Forge and Steel, Inc. v. Cyprus
Minerals Co., No. 94-404, 1994 WL 485803 (W.D. Pa. Dec. 23, 1996) (approving settlement of
$3.6 million where plaintiffs’ expert estimated damages of $44.4 million); Fox v. Integra Financial
Corp., No. 90-1504 (W.D. Pa. July 9, 1996) (approving a settlement of $6.5 million where
plaintiffs’ best estimate of provable damages was $33 million); In re Four Seasons Sec. Litig., 58
F.R.D. 19, 36–37 (W.D. Okla. 1972) ($8 million settlement approved although claims exceeded
$100 million)).
The Settlement becomes even more reasonable when considered in light of the attendant
risks of litigation. The combined Settlement of almost $143 million (EPP Class plus SHPs) was
achieved after twelve years of litigation. As noted above, class certification had been denied,
meaning that the best case recovery scenario—which accounted for damages to an entire class—

could not be obtained through a singular trial. And Defendants had their own competing economic
experts who would have challenged the EPPs’ damages calculation at every angle, potentially
lowering the amount of recoverable damages. “After considering the present-day-value of money,
the likelihood that the class would recover less than its maximum actual damages, all of the
attendant risks of litigation, and the interests in resolution, such a recovery is well within
the range of reasonableness.” Jackson v. Wells Fargo Bank, N.A., 136 F. Supp. 3d 687, 706 (W.D.
Pa. 2015); see also In re NFL, 821 F.3d 410, 440 (3d Cir. 2016) (holding that, in considering the
eighth and ninth Girsh factors, “we must take seriously the litigation risks inherent in pressing
forward with the case” including the possibility that litigation could leave class members with “no
recovery at all”).

Taking all of this into consideration, I find that the eighth and ninth Girsh factors weigh in
favor of approval of the Settlement.
8. Summary of the Girsh Factors
In sum, Girsh factors one through six, eight, and nine favor approval of the EPP Settlement.
Factor seven—the ability of the Defendants to withstand a greater settlement—is neutral and does
not persuade me either way. Although the Girsh factors are simply a guide, I find that, under these
considerations, the Settlement is fair and reasonable.
C. The Prudential Factors
The Prudential factors involve multiple additional considerations, including: (1) “the
maturity of the underlying substantive issues, as measured by experience in adjudicating individual
actions, the development of scientific knowledge, the extent of discovery on the merits, and other

factors that bear on the ability to assess the probable outcome of a trial on the merits of liability
and individual damages”; (2) “the existence and probable outcome of claims by other classes and
subclasses”; (3) “the comparison between the results achieved by the settlement for individual
class or subclass members and the results achieved—or likely to be achieved—for other
claimants”; (4) “whether class or subclass members are accorded the right to opt out of
the settlement”; (5) “whether any provisions for attorneys’ fees are reasonable”; and (6) “whether
the procedure for processing individual claims under the settlement is fair and reasonable.” In re
Prudential, 148 F.3d at 323. Only the Prudential factors relevant to the litigation in question need
be addressed. Id. 323–24; In re Cigna-American Specialty Health Admin. Fee Litig., No. 16-3967,
2019 WL 4082946, at *3 (E.D. Pa. Aug. 29, 2019).

The first factor—maturity of the underlying substantive issues—substantially mirrors
Girsh factor three, the stage of the proceedings. Under this factor, the advanced development of
the record weighs in favor of approval. See Chakejian v. Equifax Info. Servs., LLC, 275 F.R.D.
201, 215 (E.D. Pa. 2011) (finding settlement reasonable where underlying substantive issues were
“mature in light of the experience of the attorneys, extent of discovery, posture of case, and
mediation efforts undertaken.”). The Settlement here came on the heels of twelve years of active
litigation during which extensive discovery was exchanged, over 180 depositions were taken,
expert reports were obtained and exchanged, and vigorous motion practice was pursued. Class
Counsel had the benefit of assessing the strength and weaknesses of the case based on this
discovery, the Defendants’ motions, and the Supreme Court ruling in Actavis. Moreover, the
Settlement resulted from extensive negotiations with multiple mediators who had the benefit of an
expansive overview of the case. Accordingly, I find that the Settlement was premised on a
significantly mature record.

Factors two and three look at the outcomes of claims by other classes and other claimants.
Defendants here faced antitrust claims from multiple other claimants and classes including the
Federal Trade Commission, generic manufacturer Apotex, a group of retailer pharmacy chains, a
class of direct purchaser plaintiffs, and several States’ attorneys general, all of whom reached
settlements allowing for the recovery of overcharge damages. In addition, the State of California
has a pending settlement that allows its claimants to recover full reimbursement for their purchases
of Provigil and/or modafinil. Consistent with these settlements, the Settlement here likewise
permits Class Members to potentially recover the full amount of overcharge damages they suffered
as a result of the alleged anticompetitive conduct. Thus, there do not appear to be any disparities
in the success of the settlements obtained by the various claimants.

Factor four considers whether class or subclass members are accorded the right to opt out
of the settlement. The Settlement here specifically advised potential class members that they had
the option to be excluded from the class. (Miller Decl., Exs. C & D.) As of the date of the Final
Fairness Hearing, only eighteen class members had opted out of the Settlement. (Supp. Miller
Decl. ¶¶ 5–6.) The release of claims against Defendants does not apply to those Plaintiffs who opt
out.
Pursuant to the fifth factor—the reasonableness of attorneys’ fees—the Notice Program
specifically advised potential Class Members that:
Class Counsel will request an award from the Court for attorneys’
fees of up to one-third of the total amount of the Settlement funds
plus any accrued interest, plus reimbursement for the costs and
expenses they advanced in litigating the case. All awards for
attorneys’ fees and expenses shall be paid from the Settlement Funds
after the Court approves them. In addition, pursuant to an agreement
between Class Counsel and the lawyers for the Settling Health Plans
or SHPs (a group of TPPs who separately settled with the Cephalon
Defendants), Class Counsel received 40% of the fees paid to the
SHP’s lawyers from their separate agreement with the Cephalon
Defendants. The fees paid pursuant to this agreement are separate
from any attorney fees the Court awards to Class Counsel from the
Settlement Funds in this case. Further, also pursuant to the
agreement between the SHPs’ lawyers and Class Counsel, Class
Counsel will pay the SHPs’ lawyers approximately 32.2% of any
fees awarded by the Court in connection with the settlement with the
Cephalon Defendants.

(Miller Decl., Exs. C & D.) While the reasonableness of these requested fees is discussed in more
detail below, I find—for purposes of approving the fairness of the Settlement—that the notice to
the Class Members about the requested fees was reasonable.
Finally, under the sixth factor, I find that the procedure for processing individual claims is
both fair and reasonable. In order to submit claims, Class Members need only provide information
regarding the total amount they paid for Provigil or modafinil from June 24, 2006 through August
8, 2019, with only one proof of purchase, which can take any number of forms including pharmacy
records, an insurance EOB (explanation of benefits) form, or letter from the claimant’s doctor.
(Miller Decl., Ex. C.) Absent a proof of purchase, a Class Member can seek help from the
Settlement Administrator to file a valid claim. (Id.) The Settlement Administrator will then
process all submitted claims to determine whether there are any deficiencies and, if so, to notify
the Claimant how to cure the deficiency. (Meltzer Decl., Ex. 5.) Once all non-deficient claims
are collected, the Settlement Administrator will review the claims to determine which ones are
authorized for approval and which ones are ineligible. (Id.) Upon final approval of the Settlement,
the approved Settlement Notice Costs, Settlement Administration Costs, Escrow Administration
Costs, taxes, approved attorneys’ fees and costs, and lead plaintiff incentives shall be paid from
the settlement funds. The Settlement Administrator shall then pay all authorized Consumer Claims
from the final Consumer Distribution Fund allowing claimants to receive up to 100% of their
authorized Consumer Claim, depending on the sufficiency of the funds available and whether the

claimant has received reimbursements from either the State Attorney General settlement or the
California Attorney General settlement.
Overall, the Prudential factors raise no concerns regarding the fairness of the Settlement.
The Settlement was reached at mature stage of the litigation, and the Settlement’s terms
appropriately set forth how to file a claim, how the monies will be distributed, how to opt out of
the Settlement, and what the potential attorneys’ fees and costs awards could be. Ultimately, the
Settlement is consistent with those obtained by the other claimants in the related actions. As such,
I find that the Prudential factors favor approval of the Settlement.
D. Baby Products Direct Benefit Factor
The final factor I must consider in my analysis of the Settlement’s fairness is “the degree

of direct benefit provided to the class.” In re Baby Products Antitrust Litig., 708 F.3d 163, 174
(3d Cir. 2013). As noted above, “[i]n making this determination, a district court may consider,
among other things, the number of individual awards compared to both the number of claims and
the estimated number of class members, the size of the individual awards compared to claimants’
estimated damages, and the claims process used to determine individual awards.” Id.; see also In
re Google Inc. Cookie Placement Consumer Privacy Litig., 934 F.3d 316, 329 (3d Cir. 2019).
Here, the Plan of Allocation provides that:
• The separate settlement funds provided by each of the Cephalon Settlement, the Mylan
Settlement, and the Ranbaxy Settlement shall be deposited into three separate accounts.

• From those accounts, there will be several deductions made on a pro rata basis:
− Any and all allowed costs (including Settlement Notice costs, Settlement
Administration costs, Escrow Administration costs, and taxes).
− Any allowed class attorneys’ fees and costs.
− Court-authorized incentive awards to the named Plaintiffs.
− Any future Settlement Administration Costs, Escrow Administration costs, and
taxes likely to be incurred through completion of the claims process.

• Following these disbursements, the Settlement Administrator shall combine the remaining
funds in the three accounts (the “Net Class Settlement Fund”), which will be used to pay
Consumer and TPP claims that have been processed and authorized by the Settlement
Administrator in accordance with the Plan of Allocation.

• The Net Class Settlement Fund will be so allocated and disbursed to “Authorized
Consumer Claimants” (who will receive 14% of the net Class Settlement Fund) and
“Authorized TPP Claimants” (who will receive 86% of the Net Class Settlement Fund) by
the Settlement Administrator, under the supervision of Class Counsel and upon Court
approval.

• If there are sufficient funds, each Authorized Consumer Claimant shall receive 100% of
their Authorized Consumer Claim (reduced by money that Authorized Consumer Claimant
has received in any other modafinil settlement).

• If there are insufficient funds to pay each Authorized Consumer Claimant 100% of their
Authorized Consumer Claim, then each Authorized Consumer Claimant shall receive a
pro rata share of the fund.

• If, after all Authorized Consumer Claimants are paid 100% of their claims, funds remain
in the Consumer Distribution Fund, those remaining funds shall be added to the TPP
Settlement fund and paid out to Authorized TPP Claimants.

As discussed above, Class Members will be entitled to recover up to 100% of their purchase
price if sufficient funds are available. Potential Class Members have already received sufficient
notice with detailed information and an easy-to- complete claim form. Ultimately, this Settlement
prioritizes the maximum number of potential Class Members receiving a direct benefit from the
litigation. In re Comcast Corp. Set-Top Cable Television Box Antitrust Litig., 333 F.R.D. 364,
385 (E.D. Pa. 2019) (approving class settlement where, “[d]espite a weak case, Class Counsel
continued to prioritize obtaining a direct benefit for potential Class Members and ultimately
achieved a Settlement with the potential to directly benefit an estimated 3.5 million consumers.”).
E. Conclusion as to Fairness of the Settlement
In light of the foregoing, I find that the EPP Settlement is fair, reasonable, and adequate.
Lending the Settlement the requisite presumption of fairness, I note that all but one of the Girsh
factors, all of the Prudential factors, and the Baby Products direct benefit consideration weigh in

favor of approval. Accordingly, I will grant final approval to Settlement.
V. APPROVAL OF THE PLAN OF ALLOCATION
When assessing proposed plans of allocation, courts use the same standard for determining
whether to approve the settlement itself. McDonough v. Toys R Us, Inc., 80 F. Supp. 3d 626, 648
(E.D. Pa. 2015). “Therefore, the proposed plan needs to be fair, reasonable and adequate.” Id.
(citing In re Baby Prods., 708 F.3d at 174). “A district court’s ‘principal obligation’ in approving
a plan of allocation ‘is simply to ensure that the fund distribution is fair and reasonable as to all
participants in the fund.’” Sullivan v. DB Investments, Inc., 667 F.3d 273, 326 (3d Cir. 2011)
(quoting Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 964 (3d Cir. 1983)).
“In general, a plan of allocation that reimburses class members based on the type and extent

of their injuries is reasonable.” In re Ikon Office Solutions, Inc., Secs. Litig., 194 F.R.D. 166, 184
(E.D. Pa. 2000). Repeatedly, courts have approved of similar plans of allocation. See, e.g., In re
Flonase Antitrust Litig., 951 F. Supp. 2d 739, 752 (E.D. Pa. 2013) (approving plan of allocation
as fair, reasonable, and adequate where, in antitrust action against brand name drug manufacturer,
each class member receives their pro rata share of the net settlement fund, based on their share of
qualifying purchases of the brand name drug); Bradburn Parent Teacher Store, Inc. v. 3M
(Minnesota Mining and Manufacturing Company), 513 F. Supp. 2d 322, 335 (E.D. Pa. 2007)
(approving as reasonable a distribution plan that allocated settlement funds to class members based
upon their pro rata share of the class’s total transparent tape purchases during the damage period,
net of invoice adjustments and rebates paid as of the date of the settlement); In re Remeron Direct
Purchaser Antitrust Litig., No. 03-0085, 2005 WL 3008808, at *11 (D.N.J. Nov. 9, 2005)
(“Plaintiffs propose to allocate the Settlement funds, net of Court approved attorneys’ fees,
incentive award, and expenses . . . in proportion to the overcharge damages incurred by

each Class member due to Defendants’ alleged conduct in restraint of trade. Such a method of
allocating the Net Settlement Fund is inherently reasonable.”); see also In re Corel Corp. Inc. Secs.
Litig., 293 F. Supp. 2d 484, 493 (E.D. Pa. Jan. 4, 2001) (noting that courts “generally consider
plans of allocation that reimburse class members based on the type and extent of their injuries to
be reasonable.”).
Here, the proposed Plan of Allocation is fair, reasonable, and adequate as it provides a
straightforward method for determining each Class Member’s pro rata share of the Net Settlement
Fund and then reimburses Class Members based on the type and extent of their injuries. As set
forth in more detail above, the process for submission of claims is simple as Class Members need
only provide information regarding the total amount they paid for Provigil or modafinil from June

24, 2006 through August 8, 2019, with only one proof of purchase, which can take any number of
forms. Once all non-deficient claims are collected, the Settlement Administrator will review the
claims to determine which claims are authorized for approval or are deemed ineligible.
The Settlement funds from each of the three Defendants will be subject to deductions for
approved attorneys’ fees, administrative costs, litigation costs, and incentive payments. The net
amounts will then be combined into a single Class Settlement Fund. Authorized Consumer
Claimants will receive 14% of Net Settlement Fund and Authorized TPP Claimants will receive
86% of the Net Settlement Fund. The amounts will be allocated on a pro rata basis and all Class
Members will receive a proportionate award based on the amounts they paid for Provigil and
modafinil during the class period, up to 100% depending on the number of claims. All of the net
settlement amounts will be reimbursed to Class Members.
I will therefore approve the proposed Plan of Allocation.
VI. MOTION FOR ATTORNEYS’ FEES, LITIGATION EXPENSES, AND
INCENTIVE AWARDS

The final portion of my review of the Settlement requires consideration of the EPPs’
Motion for (1) an award of attorneys’ fees, (2) reimbursement of litigation expenses, and (3)
incentive awards for the class representatives.
A. Attorneys’ Fees
The EPPs first seek an award of attorneys’ fees in the amount of $21,959,200 plus accrued
interest—approximately one-third of the Class Settlement Fund—on behalf of Class Counsel and
two other participating firms (Finklestein Thompson and the Law Offices of Robert Sink).5
Under Federal Rule of Civil Procedure 23(h), at the conclusion of a successful class action,
class counsel may apply to a court for an award of attorneys’ fees. The amount of
an attorneys’ fee award “is within the district court’s discretion so long as it employs
correct standards and procedures and makes finding of fact not clearly erroneous[.]” Sullivan v.
DB Invs., Inc., 667 F.3d 273, 329 (3d Cir. 2011) (en banc) (internal quotation marks omitted).
“’[A] private plaintiff, or plaintiff’s attorney, whose efforts create, discover, increase, or preserve
a fund to which others also have a claim, is entitled to recover from the fund the costs of his

5 I note that Class Counsel has an agreement with the SHPs to share fees related to the Cephalon
Settlement. Specifically, under the agreement, Class Counsel has already received forty percent
of the SHP Counsels’ fee from that settlement, for a total of $4,960,000. In exchange for this
advanced payment, Class Counsel is obligated to provide SHP’s Counsel 32.21% of the fees
awarded in this matter related solely to the Teva portion of the settlement. This private agreement
has no impact on my decision here.
litigation, including attorneys’ fees.’” In re Cendant, 404 F.3d at 187 (quoting G.M. Trucks, 55
F.3d 768, 820 n.39).
In assessing attorneys’ fees, courts typically apply either the percentage-of-recovery
method or the lodestar method. The percentage-of-recovery method is generally favored in

common fund cases, such as the one here, because it allows courts to award fees from the fund “in
a matter that rewards counsel for success and penalizes it for its failure.” Prudential, 148 F.3d at
333 (internal quotations omitted); see also In re Rite Aid Sec. Litig., 396 F.3d 294, 300 (3d Cir.
2005) (finding that the “percentage of the fund” method is the proper method for calculating
attorneys’ fees in common fund class actions in this Circuit.); Kirsch v. Delta Dental of New
Jersey, 534 F. App’x 113, 115 (3d Cir. 2013) (“The percentage of recovery method is generally
favored in common fund cases . . .”) (quotations omitted).
In Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 1990), the Third Circuit
directed that, when analyzing a fee award in a common fund case, a district court must consider
several factors, including:

(1) the size of the fund created and the number of persons benefitted;
(2) the presence or absence of substantial objections by members of
the class to the settlement terms and/or fees requested by counsel;
(3) the skill and efficiency of the attorneys involved; (4) the
complexity and duration of the litigation; (5) the risk of
nonpayment; (6) the amount of time devoted to the case by
plaintiffs’ counsel; and (7) the awards in similar cases.

Id. at 195 n. 1. This list was not intended to be exhaustive. Id.
In In re Prudential, the Third Circuit identified three other factors that may be relevant and
important to consider: (1) the value of benefits accruing to class members attributable to the efforts
of class counsel as opposed to the efforts of other groups, such as government agencies conducting
investigations, (2) the percentage fee that would have been negotiated had the case been subject to
a private contingent fee agreement at the time counsel was retained, and (3) any “innovative” terms
of settlement. Id. at 336–40.
Ultimately, in reviewing an attorneys’ fees award in a class action settlement, a district
court should consider the Gunter factors, the Prudential factors, and any other factors that are

useful and relevant with respect to the particular facts of the case. The fee award reasonableness
factors “need not be applied in a formulaic way” because each case is different, “and in certain
cases, one factor may outweigh the rest.” In re Rite Aid, 396 F.3d at 301 (quoting Gunter, 223
F.3d at 195 n.1). In cases involving extremely large settlement awards, district courts may give
some of these factors less weight in evaluating a fee award. See In re Cendant Corp. Litig., 264
F.3d 201, 283–84 (3d Cir. 2001); In re Prudential, 148 F.3d at 339. What remains important is
that, in all cases, the district court “engage in robust assessments of the fee award reasonableness
factors,” In re Rite Aid, 396 F.3d at 302, recognizing “an especially acute need for close judicial
scrutiny of fee arrangements in class action settlements.” In re Cendant Corp. PRIDES Litig., 243
F.3d 722, 730 (3d Cir. 2001) (internal quotations omitted); see also In re AT&T Corp., 455 F.3d

160, 165–66 (3d Cir. 2006).
Once all of the Gunter and Prudential factors have been considered, the Third Circuit has
suggested that it is “sensible” for district courts to “cross-check” the percentage fee award against
the “lodestar” method. In re Prudential, 148 F.3d at 333. More specifically, the district court
should apply the percentage-of-recovery method and then do “an abridged lodestar analysis”—
multiplying the number of hours reasonably worked on a case by a reasonable billing rate—and
compare it against the percentage-of-recovery method. In re Rite Aid, 396 F.3d at 305–06. In
doing so, the court can ensure that the percentage-of-recovery method does not yield too high or
low of an award. Id. at 306.
With these standards in mind, I consider each of the Gunter and Prudential factors and then
cross-check the percentage-of-recovery amount against a lodestar analysis to provide an overall
assessment of the reasonableness of the requested attorneys’ fees.
1. Gunter/Prudential Factors

a. Size of the Fund Created & Number of Persons Benefitted
The Settlement Agreement establishes a total recovery of $65,877,600, from which
administrative expenses, attorneys’ fees, and costs must be paid. See Jackson v. Wells Fargo Bank,
N.A., 136 F. Supp. 3d 687, 713 (W.D. Pa. 2015) (noting that “size of the fund” should include
attorneys’ fees, and administration expenses); Lake Forest Partners, L.P. v. Sprint Commc’ns Co.
L.P., No. 12-00999, 2013 WL 3048919, at *2 (W.D. Pa. June 17, 2013) (the size of the fund should
include the “separate payment of attorney’s fees and expenses, and the expenses of
administration”) (citing Boeing Co. v. Van Gemert, 444 U.S. 472, 479 (1980)). Notice has been
disseminated to thousands of potential Class Members through the Notice Program as described
above, and nearly 40,000 Class Members have filed claims to date.

Class Counsels’ requested fees in this case represent 33 1/3 % of the total recovery, which
is well within the range of reasonable fees, on a percentage basis, in the Third Circuit. See,
e.g., Esslinger v. HSBC Bank Nevada, No. 10-3213, 2012 WL 5866074, at *12 (thirty percent fee
award reasonable considering size of the fund); In re Processed Egg Prods. Antitrust Litig., No.
08–2002, 2012 WL 5467530, at *7 (E.D. Pa. Nov. 9, 2012) (approving a thirty percent (30%) fee
award for $25,000,000.00 settlement); In re Flonase Antitrust Litig., 291 F.R.D. 93, 104 (E.D. Pa.
2013) (citing cases and remarking that “[a] one-third fee award is standard in complex antitrust
cases of this kind” and “is consistent with awards in other complex antitrust actions involving the
pharmaceutical industry”) (quotations omitted). Accordingly, this factor weighs in favor of
finding the fee request reasonable.
b. Presence or Absence of Substantial Objections
The Notice Program specifically advised potential Class Members that Class Counsel

would request an award of attorneys’ fees of up to one-third of the total amount of the Settlement
funds, plus costs, all of which would be paid from the Settlement funds. Despite this widespread
notice, only three individuals filed objections. Of those, only one objector—Carlton Davis—
challenged the amount of the requested attorneys’ fees. Specifically, he stated that the Settlement
was inequitable because “[o]ver 50% of [the settlement funds] is allocated to the state and private
litigators to compensate for replenishing funds, for time spent, and expenses incurred.” He
believed that “[f]unds need to be provided to us consumers for our time and expenses researching
our cost, calculating our time, and our damages.” (Carlton Davis Obj., ECF No. 602.)
This singular objection, standing alone, would not be sufficient for me to deny the
requested fees. Moreover, I note that, in their Supplemental Filing, the EPPs represented that a

member of Class Counsel spoke with Mr. Davis by phone on January 27, 2000, to further explain
the details of the Settlement. During that phone call, Class Counsel addressed some of Mr. Davis’s
concerns. Mr. Davis expressed appreciation for the call and advised that he had no objection to a
one-third attorneys’ fee award, indicating that he was aware that such amount was common in
contingent fee cases. (EPPs’ Supp. Br., ECF No. 607, p. 6 n.6.) Finally, I remain cognizant that
nearly 40,000 individuals have submitted claims, thus tacitly indicating their approval for the
Settlement and requested attorneys’ fees.
c. Skill and Efficiency of Attorneys’ Involved
The Third Circuit has explained that the goal of the percentage fee-award device is to
ensure “that competent counsel continue to undertake risky, complex, and novel litigation.”
Gunter, 223 F.3d at 198 (quotations omitted). “The single clearest factor reflecting the quality of

class counsels’ services to the class are the results obtained.” Cullen v. Whitman Med. Corp., 197
F.R.D. 136, 149 (E.D. Pa. 2000) (quotations omitted).
As repeatedly discussed above, both in regard to class certification and with respect to the
fairness of the Settlement, Class Counsel are skilled and effective class action litigators that have
obtained a highly favorable settlement in an extremely complex case despite the fact that an end-
payor litigation class was not certified. I need not reiterate those same considerations again here.
This factor therefore supports a 33 1/3% attorney fee award.
d. Complexity and Duration of the Litigation
“[C]omplex and/or novel legal issues, extensive discovery, acrimonious litigation, and tens
of thousands of hours spent on the class by class counsel” are factors which “increase the

complexity of class litigation.” In re Cendant Corp. PRIDES, 243 F.3d at 741. All of those factors
favor the requested fee award here.
First, the legal issues involved here were novel and complex, implicating both patent and
antitrust issues. Various groups of plaintiffs proceeded against Defendants under a reverse-
payment settlement antitrust theory. Several years into the litigation, that theory was significantly
altered and shaped in the wake of the Supreme Court decision in FTC v. Actavis, Inc., 570 U.S.
136 (2013). To further complicate matters, the case against Defendants involved complex patent
issues under the Supreme Court case of Walker Process Equip., Inc. v. Food Mach. & Chem. Corp.,
382 U.S. 172 (1965).
Second, discovery was extensive and far-reaching. The parties proceeded through years of
certification, fact, and expert discovery involving approximately five million pages of documents,
over 180 depositions, and depositions of numerous experts.
Third, the case was hard-fought on both sides. The parties briefed multiple, highly-

contested motions, including motions to dismiss, discovery motions, certification motions, and
motions for summary judgment. Counsel spent approximately 41,000 hours on the litigation.
Finally, the case was subject to numerous delays that were out of the EPPs’ control. I first
delayed the matter to conduct a patent infringement trial and resolve the underlying patent issues
before reaching the antitrust issues. Thereafter, the matter was delayed by the Supreme Court’s
impending ruling in Actavis. Finally, after the Settlement was reached, one of the members of the
SHPs group—United Healthcare Corporation—attempted to withdraw from the Settlement,
resulting in additional litigation and further delay of the resolution of this case.
In short, the litigation has been more than sufficiently lengthy and complex to justify the
requested amount of attorneys’ fees.

e. Risk of Nonpayment
The risk of nonpayment in this matter was not negligible. Counsel began this litigation in
2006 on a contingent fee basis. See In re Flonase, 291 F.R.D. at 104 (“[A]s a contingent fee case,
counsel faced a risk of nonpayment in the event of an unsuccessful trial. Throughout this lengthy
litigation, Class Counsel have not received any payment. This factor supports approval of the
requested fee.”). Over the next twelve years, Class Counsel devoted extensive amounts of time
and resources to litigating this case, all while pursuing complex legal theories which brought with
them no guarantee of recovery at trial. Even in the event of recovery, the EPPs faced the substantial
likelihood of challenge on appeal. The risk of nonpayment was then significantly heightened by
the denial of class certification. Given Class Counsels’ diligent pursuit of this case for more than
a decade with significant risk and no immediate financial reward in sight, I find that this factor
weighs in favor of the requested fee award.
f. Amount of Time Devoted to the Case by Counsel

According to the Declaration submitted in support of Class Counsels’ Motion for
Attorneys’ Fees, Class Counsel has spent 41,000 hours prosecuting of this case, all without any
guarantee of payment. (Meltzer Decl. ¶¶ 46–52 & Exs. 6, 7, 8 & 10.) Such expenditure of time
at such great risk warrants the requested 33 1/3 % fee award. See In re Ikon Office Solutions, Inc.,
Secs. Litig., 194 F.R.D. 166, 194 (E.D. Pa. 2000) (granting a 30% fee request because “[c]ounsel
expended more than 45,000 hours on this case and paid out expenses of more than $4 million with
no guarantee of recovery” and the case presented “the legal obstacles of establishing scienter,
damages, causation, and the like.”); Cullen, 197 F.R.D. at 149–50 (finding that counsel’s
expenditure of 3,899.84 hours on litigation represented a “substantial commitment to this
litigation” that warranted a counsel fee of 33 1/3 % of the settlement fund); Wallace v. Powell,

288 F.R.D. 347, 375 (finding that counsel’s expenditure of 34,900.48 hours on prosecuting the
matter reflected a “substantial commitment to this litigation” and “the complexity of Plaintiffs’
claims”).
g. Awards in Similar Cases
“While there is no benchmark for the percentage of fees to be awarded in common fund
cases, the Third Circuit has noted that reasonable fee awards in percentage-of-recovery
cases generally range from nineteen to forty-five percent of the common fund.” Stevens v. SEI
Invs. Co., No. 18-4205, 2020 WL 996418, at *12 (E.D. Pa. Feb. 26, 2020) (citing G.M. Trucks,
55 F.3d at 822). Courts have consistently approved such awards. See, e.g., Myers v. _Jani-King
of Philadelphia, Inc., No. 09-1738, 2019 WL 4034736, at *11 (E.D. Pa. Aug. 26, 2019) (citing
cases and noting that “the requested fee of one-third (1/3) of the settlement amount is reasonable
in comparison to awards in other cases.”); In re Fasteners Antitrust Litig., No. 08-md-1912, 2014
WL 296954, at *7 (E.D. Pa. Jan. 27, 2014) (“Co-Lead Counsel’s request for one third of the

settlement fund is consistent with other direct purchaser antitrust actions) (citing cases); Stagi v.
Nat’l R.R. Passenger Corp., 880 F. Supp. 2d 564, 571 (E.D. Pa. 2012) (noting that this District's
fee awards generally range between nineteen and forty-five percent of the common fund); In re
Merck & Co., Inc. Vytorin Erisa Litig., No. 08-285, 2010 WL 547613, at *11 (D.N.J. Feb. 9, 2010)
(“review of 289 settlements demonstrates “average attorney’s fee percentage [of] 31.71% with a
median value that turns out to be one-third”) (quoting In re Remeron Direct Purchaser Antitrust
Litig., No. 03-0085, 2005 WL 3008808, at *15 (D.N.J. Nov. 9, 2005)); SmithKline Beecham
Corp., No. 00-6222. 2005 WL 950616, at *24 (E.D. Pa. Apr. 22, 2005) (approving 30% fee of the
$65 million settlement in pharmaceutical antitrust class action); In re Linerboard Antitrust Litig.,
No. MDL 1261, 2004 WL 1221350, at *16 (E.D. Pa. June 2, 2004) (approving 30% fee of a $202

million settlement in an antitrust class action).
Given the magnitude of this case, the efforts of Class Counsel, the risks borne, and the
positive outcome, I find that the requested fee of 33 1/3 % recovery remains consistent with the
awarded fee in other, similar cases.
h. Value of Benefits Accruing to Class Members Attributable to the
Efforts of Class Counsel as Opposed to the Efforts of Other Groups,
Such as Government Agencies

A significant factor to consider is whether Class Counsel was aided by a government
investigation. In re AT&T Corp., 455 F.3d 160, 173 (3d Cir. 2005). “Allowing private counsel to
receive fees based on the benefits created by public agencies would undermine the equitable
principles which underline the concept of the common fund, and would create an incentive for
plaintiffs[s] attorneys to ‘minimize the costs of failure . . . by free riding on the monitoring efforts
of others.’” In re Prudential, 148 F.3d at 337 (further quotations omitted).
Here, the EPPs filed suit almost two years before the Federal Trade Commissions (“FTC”)

initiated suit in FTC v. Cephalon, Inc., Civ. A. No. 08-2141 (Feb. 13, 2008). Prior to the FTC
suit, the EPPs had already engaged in their own investigation of the Provigil market and developed
their own antitrust theories regarding the reverse-payment settlements between Cephalon and the
generic modafinil manufacturers. Class Counsel were subsequently able to coordinate discovery
and the exchange of information with other classes and claimants, including the FTC, generic
manufacturer Apotex, a group of large pharmacy chains, a direct purchaser class, and a group of
state attorneys general. Such cooperation, however, does not detract from the exorbitant time and
effort expended by Class Counsel on this matter and does not impact the percentage fee to which
they are entitled.
i. The Percentage Fee that Would Have Been Negotiated Had the
Case Been Subject to a Private Contingent Fee Agreement at the
Time Counsel Was Retained

“In making a common benefit award, we must try to ascertain what the market would pay
for the attorneys’ efforts. That is, we must consider ‘the percentage fee that would have been
negotiated had the case been subject to a private contingent fee agreement at the time counsel was
retained.’” In re Diet Drugs Prods. Liab. Litig., 553 F. Supp. 2d 442, 482 (E.D. Pa. 2008)
(quoting AT & T, 455 F.3d at 165). While not an easy calculation, it is an important exercise
because “the goal of the fee setting process [is] to ‘determine what the lawyer would receive if he
were selling his services in the market rather than being paid by Court Order.’” In re Linerboard
Antitrust Litig. (“Linerboard II”), 333 F. Supp. 2d 343, 351 (E.D. Pa. 2004) (quoting In re
Continental Ill. Sec. Litig., 962 F.2d 566, 568 (7th Cir. 1992)). “[I]n private contingency fee cases
. . . plaintiffs’ counsel routinely negotiate agreements providing for between thirty and forty
percent of any recovery. In re Ikon Office Solutions, 194 F.R.D. at 194 (E.D. Pa. 2000); see also
In re Remeron Direct Purchaser Antitrust Litig., No. 03-0085, 2005 WL 3008808, at *16 (D.N.J.

2005) (“Attorneys regularly contract for contingent fees between 30% and 40% with their clients
in non-class commercial litigation.”)
The requested fees here fall squarely within that range, as Class Counsel seeks an award of
33 1/3% of the Settlement Fund. Therefore, this factor supports the requested fees.
j. Innovative Terms of Settlement
In certain cases, a district court may find that “class counsels’ representation and the results
achieved [by the settlement agreement] were ‘nothing short of remarkable.’” In re Prudential, 148
F.3d at 339 (quotations omitted). Such a finding may be warranted where a settlement involved
“innovative” or unique terms. Id. (describing the findings of the lower court regarding plaintiffs’
counsels’ work on the settlement, including “the availability of full compensatory relief, the

extensive and comprehensive outreach, and the multi-tiered review process designed to ensure fair
scoring of claims,” among other characteristics).
Nothing in the Settlement here is particularly remarkable or innovative. Accordingly, there
is no indication that this factor should bear on an attorney fee award.
k. Overall Review of the Gunter and Prudential Factors
All of the Gunter and Prudential factors—except one, which weighs neither for nor against
approval—supports the award of an attorneys’ fees in the amount of 33 1/3 % of the Settlement.
Taking them as a whole, I find that the scale is heavily tipped in favor of the requested attorneys’
fee award.
2. Cross-Check Against Class Counsels’ Lodestar
The Third Circuit has suggested that it is “sensible” for district courts to cross check the
percentage fee a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10398817. Public record. Not legal advice.