Zoladex consumers entitled to treble damages, Court rules

Nov 21 2009

The United States Court of Appeals for the First Circuit upheld an earlier District Court ruling yesterday, approving a settlement in the long-running Average Wholesale Price (AWP) pharmaceutical litigation against AstraZeneca Pharmaceuticals ( AZN).

The ruling affirms a settlement that awarded consumers who purchased the pharmaceutical giant's prostate cancer drug Zoladex treble damages, a rare if not unprecedented event in consumer litigation.

The case, argued by Steve W. Berman a Seattle plaintiff's attorney with Hagens Berman Sobol Shapiro (HBSS), afforded thousands of consumers access to a $24 million settlement against the drug giant accused of manipulating the price of Zoladex.

Under the settlement approved by the U.S. District Court in November 2007, any consumer who could provide reasonable documentation can receive three times the actual damages. Any funds left over from the $24 million settlement would go to non-profit organizations. Experts representing the plaintiffs expect that only about $21 million will be claimed by class members, many of whom have passed away since the case was filed.

The distribution to charities falls under a legal doctrine cy pre, a Norman French expression for "as near as it comes," allowing for the unclaimed amount of the settlement to benefit those in the class, even if indirectly.

This is the first time the First Circuit has affirmed the use of cy pre in this way.

The ruling was in response to an appeal filed by a class member who objected to the settlement, claiming the cy pre fund lowered the amount of recovery to class members. The objecting claimant also argued that the payment methodology was flawed; that payments discriminated against class members with supplemental insurance and that a conflict of interest existed since one of the plaintiffs could receive cy pre funding.

The court dismissed each of the objector's claims filed by attorney Don Haviland as "meritless."

"We are heartened that the Court of Appeals agreed with U.S. District Court Judge Patti Saris' early ruling approving the settlement," said Berman, noting that HBSS filed the first AWP case in 2002. "This settlement is perhaps the first time a consumer class was awarded treble damages in a case of this size."

Berman noted that the court's conclusion that no conflict of interest existed in the cy pre could have positive ramifications in other settlements in the AWP litigation.

Under the terms of the settlement, consumers who paid or contributed to the purchase of Zoladex through co-payments between December 1997 and 2003 are entitled to treble damages. Other class members will receive treble damages if money is left from the $24 million settlement. Experts agree that there will be sufficient funds to pay treble damages for all class members, with approximately $6.8 million remaining for cy pre funding.

The First Circuit ruling noted the District Court's work, applauding Judge Patti Saris, saying her court has "handled this matter with sensitivity and care." Judge Saris has presided over this case since 2001.