In re: Suboxone Antitrust v.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 19-3640

______________

In re: Suboxone (Buprenorphine Hydrochlorine and

Naloxone) Antitrust Litigation

Indivior Inc. f/k/a Reckitt Benckiser Pharmaceuticals, Inc.,

Appellant

______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-13-md-02445)

District Judge: Honorable Mitchell S. Goldberg

______________

Argued July 1, 2020

______________

Before: GREENAWAY, JR., SHWARTZ, and RENDELL,

Circuit Judges.

(Filed: July 28, 2020)

______________

Bruce E. Gerstein

Joseph Opper

Garwin Gerstein & Fisher

Wall Street Plaza

88 Pine Street, 10th Floor

New York, NY 10036

Counsel for Plaintiff-Appellee Burlington Drug Co.

Inc.

Thomas M. Sobol

Hagens Berman Sobol Shapiro

55 Cambridge Parkway

Suite 301

Cambridge, MA 02142

Counsel for Plaintiff-Appellees Meijer Inc. and Meijer

Distribution Inc.

Caitlin G. Coslett

David F. Sorensen

Berger Montague

1818 Market Street

Suite 3600

Philadelphia, PA 19103

Peter Kohn [ARGUED]

Faruqi & Faruqi

1617 John F. Kennedy Boulevard

Suite 1550

Philadelphia, PA 19103

Counsel for Plaintiff-Appellee Rochester Drug

2

Cooperative Inc.

Jonathan B. Berman [ARGUED]

Jones Day

51 Louisiana Avenue, N.W.

Washington, DC 20001

James R. Saywell

Jones Day

901 Lakeside Avenue

North Point

Cleveland, OH 44114

Counsel for Defendant-Appellant Indivior Inc., f/k/a

Reckitt Benckiser Pharmaceuticals Inc.

Anthony Russomanno

Wisconsin Department of Justice

P.O. Box 7857

Madison, WI 53707

Counsel for Amicus State of Wisconsin in support of

Appellees

Randy Stutz

10418 Ewell Avenue

Kensington, MD 20895

Counsel for Amicus American Antitrust Institute in

support of Appellees

3

______________

OPINION

______________

SHWARTZ, Circuit Judge.

Indivior, Inc., formerly Reckitt Benckiser

Pharmaceuticals, Inc. (“Reckitt”), manufactured Suboxone, a

prescription drug used to treat opioid addiction. Direct

purchasers of Suboxone (“Purchasers”) allege that Reckitt

engaged in anticompetitive conduct that impeded the entry of

generic versions of the drug into the market in violation of § 2

of the Sherman Act, 15 U.S.C. § 2. In a thorough, thoughtful,

and well-reasoned opinion, the District Court certified a class

of those who purchased Suboxone from Reckitt, and Reckitt

appeals the certification order. We will affirm.

I

A

We first explain how prescription drugs enter the

market. A company wishing to offer a new drug for sale must

seek approval from the Food and Drug Administration

(“FDA”) by filing a New Drug Application (“NDA”). Mylan

Pharms. Inc. v. Warner Chilcott Pub. Ltd. Co., 838 F.3d 421,

427 (3d Cir. 2016) (citing 21 U.S.C. § 355). Once the drug is

approved for sale, it is considered a “brand” or “brand-name”

drug. Id. To increase competition and reduce prices, Congress

enacted a streamlined method for generic manufacturers to

introduce drugs by allowing them to “piggy-back” on the brand

drug’s “approval efforts.” FTC v. Actavis, Inc., 570 U.S. 136,

4

142 (2013). Specifically, a generic drug maker may submit an

Abbreviated New Drug Application (“ANDA”) that may “rely

on a name-brand drug company’s original NDA approval for a

particular drug in order to gain quicker, less costly FDA

approval of a generic version.” Mylan, 838 F.3d at 427.

If a generic drug manufacturer demonstrates that “the

proposed generic product is both a ‘bioequivalent’ and a

‘pharmaceutical’ equivalent of the name-brand drug,” then it

may “have [its] product deemed ‘AB-rated’ to the name-brand

drug by the FDA.” Id. at 427-28.1 State laws either allow or

require pharmacists to substitute these AB-rated, lower-cost

generic drugs for a name-brand version. Id. at 428. Due to

such substitution laws and the generic drugs’ low cost, generics

often significantly erode a brand drug’s market share. See In

re: Suboxone (Buprenorphine Hydrochloride & Naloxone)

Antitrust Litig. (Motion to Dismiss), 64 F. Supp. 3d 665, 673

(E.D. Pa. 2014).

B

Reckitt developed Suboxone tablets. The FDA granted

Reckitt a seven-year period of exclusivity in which other

manufacturers could not introduce generic versions of

Suboxone tablets. As the exclusivity period neared its end for

its brand drug, Reckitt developed an under-the-tongue film

1

An “AB-rating” denotes that the generic is

“bioequivalent” and “pharmaceutically equivalent to the brand

drug, meaning it has the same active ingredient, dosage form,

strength, and route of administration as the brand drug.” New

York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 645

(2d Cir. 2015).

5

version of Suboxone, which would enjoy its own exclusivity

period. Generic versions of Suboxone tablets would not be

AB-rated to Suboxone film, so state substitution laws would

not require pharmacists to substitute generic Suboxone tablets

if a patient were prescribed Suboxone film.

According to the Purchasers, Reckitt’s transition to

Suboxone film was coupled with efforts to eliminate demand

for Suboxone tablets and to coerce prescribers to prefer film.

To that end, Reckitt allegedly: (1) engaged in a widespread

campaign falsely disparaging Suboxone tablets as more

dangerous to children and more prone to abuse; (2) publicly

announced that it would withdraw Suboxone tablets from the

market due to these safety concerns; (3) ended its Suboxone

tablet rebate contracts with managed care organizations in

favor of Suboxone film rebate contracts; (4) increased tablet

prices above film prices; (5) withdrew brand Suboxone tablets

from the market; and (6) impeded and delayed the market entry

of generic Suboxone tablets by manipulating the FDA’s Risk

Evaluation and Mitigation Strategy (“REMS”) process2 and

2

The FDA can require REMS from manufacturers to

ensure that the benefits of a drug outweigh its risks. 21 U.S.C.

§ 355-1(a)(1). A REMS can include elements such as

medication guides, package inserts, and communication plans

for healthcare providers. § 355-1(e). If the FDA requires a

REMS for a generic product, the FDA can require that the

ANDA sponsor coordinate with the brand-name to create a

Single Shared REMS program. § 355-1(i). However, brand-

name manufacturers cannot use REMS “to block or delay

approval of” ANDAs. § 355-1(f)(8).

6

filing a baseless citizen petition.3 Through these actions,

Reckitt shifted the market to Suboxone film by the time generic

Suboxone tablets hit the market and continued to dominate the

Suboxone market as the exclusive maker of Suboxone film.

The Purchasers sued Reckitt,4 alleging that its efforts to

suppress generic competition amounted to unlawful

maintenance of monopoly power, in violation of § 2 of the

Sherman Act. The Purchasers moved to certify a class of “[a]ll

persons or entities . . . who purchased branded Suboxone

tablets directly from Reckitt” during a specified period. App.

5-6. The proposed class representatives were Burlington Drug

Company, Inc. and two other purchasers. Burlington’s

corporate designee testified that although Burlington was not

“control[ling]” class counsel, Burlington is aware it is a

“fiduciary” for the class, understands the injury claimed, and

has been kept apprised of activities in the case. App. 186. In

addition, Burlington has produced thousands of pages of

electronic transaction level data reflecting purchases, charge

backs, and sales of Suboxone tablets, as well as documents

from the electronic files of ten employees.

In support of class certification, the Purchasers

submitted an expert report by Dr. Russell Lamb, an economist.

Dr. Lamb concluded that, due to Reckitt’s allegedly

3

Persons or entities can raise concerns to the FDA

regarding drug approvals through a citizen petition, and “[t]he

filing of a citizen petition can substantially delay approval of a

generic drug.” FTC v. Shire ViroPharma, Inc., 917 F.3d 147,

152 (3d Cir. 2019). Congress has passed restrictions on using

citizen petitions to delay drug approvals. Id. at 152 n.7.

4

This appeal concerns only the Purchasers.

7

anticompetitive conduct, the proposed class paid more for

brand Suboxone products.5 Dr. Lamb attributed these

overcharges to Reckitt’s actions that: (1) suppressed generic

tablet competition, so the Purchasers had to buy brand tablets

or film instead of less expensive generic tablets; (2) delayed

market entry of generic tablets, increasing the time more

expensive brand tablets could dominate the market; and

(3) increased the price of brand tablets. To reach these

conclusions, Dr. Lamb relied on internal Reckitt documents

reflecting its national Suboxone strategy and economic

analysis of tablet pricing. Dr. Lamb also calculated the

damages attributable to this injury. Using economic modeling

and data from Reckitt, he estimated, in the aggregate, the

difference between the actual prices charged for brand

Suboxone tablets and film and the price class members would

have paid for generic and non-Reckitt-brand versions.

The District Court certified the class. In re: Suboxone

(Buprenorphine Hydrochloride & Naloxone) Antitrust Litig.

(Class Certification), 421 F. Supp. 3d 12, 26 (E.D. Pa. 2019).

As relevant to this appeal, the Court held that (1) common

evidence of injury and damages showed that the Purchasers

paid more for brand Suboxone products than they would have

5

As the Purchasers clarified at oral argument, the class

consists of direct purchasers of name-brand Suboxone tablets,

but the alleged injuries are for paying more for name-brand

tablets and, for certain members who also purchased film,

paying more for film as a result of Reckitt’s alleged

anticompetitive conduct. Therefore, the damages the

Purchasers seek are overcharges for name-brand tablets, and

paying more for name-brand tablets and film than they would

have for generic tablets.

8

for generic tablets due to Reckitt’s actions to promote film,

disparage tablets, and suppress generics’ market entry, id. at

62-63; (2) although the Purchasers’ aggregate damages model

did not allocate damages among class members, “[i]ssues

regarding allocation of individual damages [were] insufficient

to defeat class certification,” id. at 64; and (3) Burlington was

an adequate class representative because it had the requisite

knowledge of the litigation, including “the basis for the

claimed injury,” and its interests aligned with the class, id. at

51. Reckitt appeals.

II6

Federal Rule of Civil Procedure 23 sets forth the

requirements for class certification. Gonzalez v. Corning, 885

F.3d 186, 192 (3d Cir. 2018). As relevant here, Rule 23(b)(3)

requires that common questions predominate and Rule 23(a)(4)

requires that the named plaintiffs adequately represent the

class, two requirements Reckitt disputes are satisfied.

6

The District Court had jurisdiction under 28 U.S.C.

§§ 1331 and 1337(a), and 15 U.S.C. § 15(a). We have

jurisdiction under 28 U.S.C. § 1292(e) and Federal Rule of

Civil Procedure 23(f).

“We review a class certification order for abuse of

discretion, which occurs if the district court’s decision rests

upon a clearly erroneous finding of fact, an errant conclusion

of law or an improper application of law to fact.” Grandalski

v. Quest Diagnostics Inc., 767 F.3d 175, 179 (3d Cir. 2014)

(internal quotation marks and citation omitted).

9

A

Rule 23(b)(3) requires that “questions of law or fact

common to class members predominate over any questions

affecting only individual members.” Fed. R. Civ. P. 23(b)(3).

“To assess predominance, a court . . . must examine each

element of a legal claim through the prism of Rule 23(b)(3)”

by determining whether each element is “capable of proof at

trial through evidence that is common to the class rather than

individual to its members.” Marcus v. BMW of N. Am., LLC,

687 F.3d 583, 600 (3d Cir. 2012) (internal quotation marks and

citations omitted). The Purchasers’ claims require them to

prove (1) “a violation of the antitrust laws” (here, unlawful

monopolization by Reckitt);7 (2) “individual injury resulting

from that violation”; and (3) “measurable damages.” In re

Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 311 (3d Cir.

2008), as amended (Jan. 16, 2009).

1

Reckitt first argues that the Purchasers have not

provided common evidence of injury or damages8 that matches

7

Section 2 of the Sherman Act makes it unlawful to

“monopolize, or attempt to monopolize . . . any part of the

trade or commerce among the several States.” 15 U.S.C. § 2.

8

“Proof of injury (whether or not an injury occurred at

all) must be distinguished from calculation of damages (which

determines the actual value of the injury).” In re Lamictal

Direct Purchaser Antitrust Litig., 957 F.3d 184, 194-95 (3d Cir.

2020) (quoting Newton v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 259 F.3d 154, 188 (3d Cir. 2001), as amended

(Oct. 16, 2001)).

10

a viable theory of liability, as required by Comcast Corp. v.

Behrend, 569 U.S. 27, 37-38 (2013) (holding that class

certification was inappropriate when a damages model

reflected injury from four antitrust injuries, but only one viable

theory of antitrust liability and injury remained in the case).

Reckitt does not dispute that the Purchasers have provided

common evidence showing that the class paid more for

Suboxone products. Reckitt, however, argues that it could

lawfully raise the prices on Suboxone tablets and change its

rebate program,9 so the Purchasers do not have an antitrust

injury.

The Purchasers’ theory of their case, however, “is not

[simply] that Reckitt’s pricing of brand tablets individually

caused harm.” Class Certification, 421 F. Supp. 3d at 62.

Rather, they allege that the totality of Reckitt’s actions, such as

raising prices, withdrawing tablets from the market, providing

rebates only for film, disparaging the safety of tablets, and

delaying the generics’ entry by filing a citizen petition and not

cooperating in the REMS process, suppressed generic

competition and thus violated the antitrust laws. They contend

that such conduct resulted in the following antitrust injury:

having to pay more for brand Suboxone products when less-

expensive generic tablets should have been available but were

not because of Reckitt’s actions.10 Reckitt incorrectly asks us

9

Reckitt acknowledges, however, that nonpricing

conduct, such as the allegations that Reckitt falsely disparaged

the tablets’ safety, if proven, would be unlawful and subject to

common evidence.

10

Reckitt’s price-cost argument is inapt. This case is

not one involving a pricing scheme alone. Rather, this case

includes a scheme to suppress generic competition through a

11

to examine each of these acts individually. Rather, we look at

“all the acts taken together [to determine whether they] show

the willful acquisition or maintenance of a monopoly.”

Bonjorno v. Kaiser Aluminum & Chem. Corp., 752 F.2d 802,

813 (3d Cir. 1984); see also Phila. Taxi Ass’n, Inc. v. Uber

Techs., Inc., 886 F.3d 332, 339 (3d Cir.) (explaining that we

“look to the monopolist’s conduct taken as a whole rather than

considering each aspect in isolation” (citation omitted)), cert.

denied, 139 S. Ct. 211 (2018). The common evidence here

would be used to prove that these actions occurred and together

suppressed generic competition, and thereby caused the

Purchasers to buy the higher-priced brand Suboxone products

because Reckitt’s actions made it difficult for the less

expensive generics to compete.11 Thus, common evidence

series of actions that will be proven by common evidence.

Higher tablet pricing and the cancellation of tablet rebates were

just two acts used to keep generic tablets out of the market, and

which led the Purchasers to pay for higher priced Suboxone

tablets when, in a competitive market, they would have been

able to purchase less expensive generic tablets. When

reviewing similar allegations, we have held that common

evidence that class members paid higher prices than they

otherwise would have easily satisfies the predominance

standard. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516,

528 (3d Cir. 2004).

11

Reckitt relies mainly on Comcast, 569 U.S. 27, to

argue that the Purchasers’ theory of injury for which they have

common evidence does not match any viable theory of

liability, so certification is wrong. Comcast is distinguishable.

In Comcast, plaintiffs alleged four theories of antitrust injury,

but the district court certified a class based on one theory. 569

U.S. at 31. The damages model plaintiffs used estimated

12

exists to prove the Purchasers’ antitrust theory and the resulting

injury.

2

Next, Reckitt argues that the Purchasers did not satisfy

the predominance requirement because their damages model

only calculates aggregate damages, and the eventual need for

damages based on the combined effects of all four theories; but

the district court held that certification was still proper. Id. at

31-32. The Supreme Court held that class certification was

wrong because “the model failed to measure damages resulting

from the particular antitrust injury on which petitioners’

liability in this action is premised.” Id. at 36. That is, the

model “identifie[d] damages that are not the result of the

wrong” suffered by the certified class. Id. at 37.

This case is unlike Comcast because there is only one

theory of antitrust injury, and that theory corresponds to a

theory of liability. To make Comcast seem applicable, Reckitt

construes the Purchasers’ claim as one alleging that Reckitt

unlawfully raised prices (the liability theory, which Reckitt

argues is not viable), and the Purchasers paid higher prices as

a result (the injury theory). Raising prices, however, was just

one aspect of Reckitt’s alleged monopolistic conduct, which is

better described as a multifaceted yet single scheme to move

the market to Suboxone film to stifle competition from generic

tablets. As a result, the Purchasers could not purchase less-

expensive generic tablets. Thus, while Reckitt would argue

that each of the six allegedly anticompetitive actions represents

a different theory of liability, in fact there is one theory of

liability proven by a variety of acts resulting in one antitrust

injury.

13

individualized damages inquiries defeats predominance.

Reckitt is incorrect. Antitrust plaintiffs may satisfy the

predominance requirement by using a model that estimates the

damages attributable to the antitrust injury, even if more

individualized determinations are needed later to allocate

damages among class members. In re Modafinil Antitrust

Litig., 837 F.3d 238, 262 (3d Cir. 2016), as amended (Sept. 29,

2016).12 For example, in Modafinil, a brand-name

manufacturer entered into agreements with four manufacturers

to hold off marketing generic versions of the drug, id. at 245,

and direct-purchaser plaintiffs “created a damages model that

calculated the savings to the class if generic entry had occurred

earlier,” id. at 262. The defendants argued that this model was

insufficient because it did not “attribute a certain amount of

harm” from each agreement or “identify which class members

were harmed by which [agreement].” Id. We rejected the need

to show each class member suffered identical damages because

“Plaintiffs’ theory of liability is not that each individual

agreement caused an individual harm,” but instead “that each

individual agreement contributed to the market-wide

harm” and this “match[ed] Plaintiffs’ damages theory.” Id.

12

See also Kleen Prods. LLC v. Int’l Paper Co., 831

F.3d 919, 929 (7th Cir. 2016) (upholding use of aggregate

damages model and explaining that “at the class certification

stage, plaintiffs are not obliged to drill down and estimate each

individual class member’s damages,” as “the allocation of that

total sum among the class members can be managed

individually”); Vaquero v. Ashley Furniture Indus., Inc., 824

F.3d 1150, 1155 (9th Cir. 2016) (same); Carriuolo v. Gen.

Motors Co., 823 F.3d 977, 988 (11th Cir. 2016) (same).

14

Like in Modafinil, the Purchasers’ model does not

measure how Reckitt’s scheme harmed each class member and

recognizes that there could be differences among the class

members concerning the precise damages they suffered.

Individualized determinations, however, are of no

consequence in determining whether there are common

questions concerning liability. See id.; see also Tyson Foods,

Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (“[T]he

action may be considered proper under Rule 23(b)(3) even

though other important matters will have to be tried separately,

such as damages . . . .” (citation omitted)). Rather, we need be

assured only that common issues predominate. See Tyson

Foods, 136 S. Ct. at 1045. Such is the case here because the

Purchasers’ theory of injury and damages is provable and

measurable by an aggregate model relying on class-wide

data.13 Although allocating the damages among class members

13

To calculate aggregate damages, Dr. Lamb relied on

Reckitt’s sales data and explained that he could allocate

individualized damages based on this same data. Accordingly,

even individualized damages assessments would require

common evidence. Moreover, in this case, the class includes

seventy-two direct purchasers seeking only to recover the

money spent to buy name-brand Suboxone products that would

not have been spent had generic competition existed, and not

lost profits. Reckitt has produced their sales information.

From this common evidence, the Purchasers proposed a trial

plan for the pro rata allocation of Purchasers’ damages. See In

re Lidoderm Antitrust Litig., No. 14-md-02521-WHO, 2017

WL 679367, at *11 (N.D. Cal. Feb. 21, 2017) (approving

aggregate damages model using pro rata formula); see also

Lamictal, 957 F.3d at 194-95 (observing that “damages need

not be ‘susceptible of measurement across the entire class for

15

may be necessary after judgment, “such individual questions

do not ordinarily preclude the use of the class action device.”

Id. Thus, the District Court correctly found that common

issues predominate.

B

Finally, Reckitt argues that Burlington is not an

adequate class representative. Rule 23(a)(4) requires a district

court to find that “representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P.

23(a)(4). “The adequacy inquiry under Rule 23(a)(4) serves to

uncover conflicts of interest between named parties and the

class they seek to represent.” In re Nat’l Football League

Players Concussion Injury Litig. (NFL), 821 F.3d 410, 431 (3d

Cir. 2016) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S.

591, 625 (1997)). For a class representative to be adequate, it

must have “[a] minimal degree of knowledge” about the case,

id. at 430 (quoting New Directions Treatment Servs. v. City of

Reading, 490 F.3d 293, 313 (3d Cir. 2007)), and have no

conflict of interest with class counsel, e.g., Larson v. AT&T

Mobility LLC, 687 F.3d 109, 132 (3d Cir. 2012), and members

of the class, Dewey v. Volkswagen Aktiengesellschaft, 681

F.3d 170, 183-84 (3d Cir. 2012).14 Only “fundamental”

purposes of Rule 23(b)(3)’” (quoting Modafinil, 837 F.3d at

260)).

14

Reckitt does not dispute that Burlington has a

minimal degree of knowledge of the litigation.

16

conflicts “will defeat the adequacy requirement.” Dewey, 681

F.3d at 184.

Reckitt argues that the Purchasers failed to satisfy the

adequacy requirement because Burlington has a risk of a

conflict with class counsel and lacks control over the litigation,

precluding it from protecting the class. Both arguments fail.

First, each conflict that Reckitt identifies is speculative or

without basis. Reckitt suggests that class counsel and the class

representative could have conflicting views on (1) what

allegations should be made, (2) who should be named as a

defendant, (3) whether to accept a settlement, (4) whether to

go to trial, and (5) whether litigation decisions will have effects

on other cases. Such hypothetical conflicts cannot defeat

adequacy. Id. (“A conflict that is unduly speculative, however,

is generally not fundamental.”); see also id. (noting that the

adequacy requirement can be satisfied when “[a]t this stage in

the litigation, the existence of such conflicts is hypothetical”

(quoting Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d 672,

680 (7th Cir. 2009))).15

15

Further, Reckitt’s hypothetical conflicts would apply

to most class actions. For example, Reckitt suggests as one

conflict that class representatives may seek to add defendants

to increase potential recovery, while class counsel might avoid

adding defendants due to “the cost of complicating the case”

and “extending the timetable before resolution.” Appellant’s

Br. at 50. Such a conflict is possible in many class actions.

Ironically, however, this conflict is not even at risk in this case

because the Purchasers’ allegations and facts focus exclusively

on Reckitt, and there is no other defendant to add.

17

Second, Reckitt’s claim that Burlington has ceded

control of this litigation to class counsel, and that this creates a

risk of conflicts, does not render Burlington an inadequate

representative. Reckitt cites no precedent from this Court for

its argument that a class representative must “control” the

litigation. Indeed, we have observed that “it is counsel for the

class representative and not the named parties . . . who direct

and manage [class] actions. Every experienced federal judge

knows that any statements to the contrary [are] sheer

sophistry.” In re Cmty. Bank of N. Va., 622 F.3d 275, 292 (3d

Cir. 2010) (alterations and omission in original) (quoting

Greenfield v. Villager Indus., Inc., 483 F.2d 824, 832 n.9 (3d

Cir. 1973)). Moreover, Burlington is not a disengaged

representative. The record shows that Burlington is aware of

its role as a fiduciary, understands the basis for the claimed

injury, has an incentive to recover its proportionate share of

damages, monitors the litigation, produced documents, and has

the requisite interest in and knowledge about the case to satisfy

the adequacy requirement. NFL, 821 F.3d at 430; In re Gen.

Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55

F.3d 768, 784 (3d Cir. 1995).

Accordingly, Reckitt’s attack on Burlington’s adequacy

as class representative lacks merit.

III

For the foregoing reasons, we will affirm the District

Court’s order certifying a direct purchaser class.

18