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Sanofi Vaccine Customers Obtain Class Certification

DATE: October 1, 2015

On September 30, 2015, U.S. District Judge Madeline Cox Arleo granted class certification to over 26,000 pediatricians, medical practices, vaccine distributors, and health systems that purchased meningitis vaccines from defendant Sanofi Pasteur Inc.  The court simultaneously denied Sanofi’s motion to exclude plaintiffs’ class experts following a three-day Daubert hearing that was held earlier in September.

The antitrust suit was filed in 2011.  Judge Arleo’s opinion summarized the facts as such:

For many years, Sanofi had a 100% monopoly over the conjugate quadrivalent meningococcal vaccine (“MCV4”) market. Sanofi’s MCV4 vaccine, Menactra, usually is administered to children to inoculate against four strains of meningitis bacterium. Sanofi also had dominant market share in several other pediatric vaccine markets, including: (1) Diphteria, Tetanus, and Pertussis (“DTaP”) vaccines; (2) Inactivated Polio Virus (“IPV”) vaccines; and (3) Haemophilus influenzae type B (“HIB”) vaccines. Novartis-which did not sell other pediatric vaccines-planned to bring a competing MCV4 vaccine, Menveo, to market by late 2009. In mid-2009, Sanofi became aware of the potential competition. It responded by bundling Menactra with its other pediatric vaccines and substantially increasing its prices. Customers who purchased from Sanofi a certain percentage of all four pediatric vaccines-MCV4, DTaP, IPV, and HIB received a “loyalty discount” that dropped prices back to what those customers had paid immediately before Menveo entered the market. Customers who did not purchase a sufficient percentage of the relevant vaccines from Sanofi paid substantially higher prices on all four vaccines.

Thus, the complaint alleges that Sanofi’s bundling impeded competition from Menveo and caused meningitis vaccine prices to be higher than they otherwise would have been for pediatricians, medical practices, vaccine distributors, and health systems.

In response to the latest ruling, Berger Montague managing shareholder Eric L. Cramer, who is leading the case for the firm, said, “We are gratified that the Court denied Sanofi’s motion to exclude the testimony of our preeminent economic experts and certified a class that includes over 26,000 physicians and health systems across the country.  We look forward to advancing our case to trial and vindicating the rights and interests of the members of the class that we represent to purchase vaccines at competitive prices.”

Berger Montague is co-lead counsel to the class.  Managing shareholder Eric L. Cramer, shareholder Michael Kane, and associate Zachary D. Caplan oversaw the class certification and Daubert briefing and conducted the three-day Daubert hearing.

The case is Adriana M. Castro, M.D., P.A. et al. v. Sanofi Pasteur Inc., Civil Action No. 2:11-cv-07178, in the U.S. District Court for the District of New Jersey.

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