Class Action Services

MDL DigestDecember 2013 Las Vegas, NV

Volume 2 Issue 6

As a commitment to practitioners, KCC produces the MDL Digest to provide hearing details for MDL participants and attendees. KCC provides this resource in advance of each hearing to stay informed on case updates, hearing schedules and industry news.

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Carla PeakDirector, Legal Notification Servicescpeak@kccllc.com(610) 304-4308

KCC MDL REPRESENTATIVE

INSIDE THIS ISSUE

MDL Hearing Information pg. 1Upcoming Hearing Sessions pg. 1Matters Designated for Oral Arg. pg. 2MDL Case Updates pg. 2September 2013 Hearing Recap pg. 3Class Certified in MDL No. 2409 pg. 3

MDL HEARING INFORMATION

Counsel presenting oral argument must be present at 8:00 a.m.

Oral argument will commence at 9:30 a.m.

Lloyd D. George United States CourthouseCourtroom 7C, 7th Floor333 Las Vegas Boulevard SouthLas Vegas, Nevada 89101

Counsel appearing for oral argument before the Panel may bring cell phones and laptop computers into the courthouse. All cell phones must be turned off before entering the courtroom.

January 30, 2014 New Orleans, LAMarch 27, 2014 San Diego, CAMay 29, 2014 Chicago, ILJuly 31, 2014 Kansas City, KSOctober 2, 2014 Louisville, KYDecember 4, 2014 Charleston, SC

UPCOMING HEARING SESSIONS

December 5, 2013

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Robert DeWitteDirector, Class Action Servicesrdewitte@kccllc.com(312) 776-7385

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MDL Digest Page 2

MDL Case Updates

IN RE: Aredia & Zometa Products Liability Litigation (MDL No. 1760): On October 2, Judge Michael W. Fitzgerald granted Novartis Pharmaceutical Corporations motion for summary judgment on all counts. The Court held that the Plaintiffs lawsuit was time-barred and therefore did not reach a decision regarding the other arguments made by the Defendant.

IN RE: TFT-LCD (Flat Panel) Antitrust Litigation (MDL No. 1827): On October 31, the government of Japan asked Judge Illston to reconsider her 2012 summary judgment which allows Motorola Mobility to move forward with antitrust claims against foreign subsidiaries. The Japanese government claims that the ruling violates their sovereignty.

IN RE: CertainTeed Fiber Cement Siding Litigation (MDL No. 2270): On November 4, the parties announced that they have reached a $103.9 million settlement over the allegedly defective siding. The settlement includes CertainTeed Weatherboards (TM) Fiber Cement Siding, Lap Siding, Vertical Siding, Shapes, Soffit, Porch Ceiling, and 7/16 Trim installed before September 30, 2013. The final fairness hearing is scheduled for February 19, 2014 in front of Judge Thomas P. ONeill of the Eastern District of Pennsylvania.

IN RE: Frito-Lay North America, Inc.,All Natural Litigation (MDL No. 2413): On September 27, Judge Mauskopf dismissed the: claims against PepsiCo; Magnuson-Moss Warranty Act claim, New York Business Law, New York warranty and New York intentional misrepresentation claims as they related to the non-New York plaintiffs; Florida warranty claims; California and Florida misrepresentation claims; and Unfair Competition Law, False Advertising Law, Consumer Legal Remedies Act, and Florida Deceptive and Unfair Trade Practices Act claims. All other claims will proceed.

IN RE: Google Inc. Gmail Litigation (MDL No. 2430): On October 9, Google asked Judge Koh if it could take questions about the Electronic Communications Privacy Act to the 9th Circuit for review before the case moves forward. The trial in this case is currently scheduled to begin in late 2014.

IN RE: Incretin Products Liability Sales and Marketing Litigation (MDL No. 2452): On October 7, the Plaintiffs proposed a Plaintiffs Steering Committee to take leadership of the 60 lawsuits that were consolidated in the Southern District of California. The initial conference was held on October 17. The lawsuits claim that while taking Januvia, Byette, Janumet

Matters Designated for Oral Argument

MDL No. 2481 In re: Aluminum Warehousing Antitrust LitigationMDL No. 2483 In re: Urban Outfitters Fair Labor Standards Act (FLSA) and Wage and Hour LitigationMDL No. 2484 In re: Ocwen Loan Servicing, LLC, Fair Debt Collection Practices Act (FDCPA) LitigationMDL No. 2485 In re: New Cingular Wireless PCS, LLC Data Services Sales Tax Refund LitigationMDL No. 2486 In re: Prospect Mortgage, LLC, Fair Labor Standards Act (FLSA) and Wage and Hour LitigationMDL No. 2488 In re: Cybil Fisher LitigationMDL No. 2491 In re: GNC Corp. Triflex Products Marketing and Sales Practices Litigation (No. II)MDL No. 2492 In re: National Collegiate Athletic Association Student-Athlete Concussion Injury LitigationMDL No. 2493 In re: Monitronics International, Inc., Telephone Consumer Protection Act LitigationMDL No. 2494 In re: Columbia and Snake River Dams Clean Water Act LitigationMDL No. 2495 In re: Atlas Roofing Corporation Chalet Single Products Liability LitigationMDL No. 2496 In re: Korean Ramen Noodle Products Antitrust LitigationMDL No. 2497 In re: Air Crash at San Francisco, California, on July 6, 2013MDL No. 2498 In re: Nutramax Cosamin Marketing and Sales Practices LitigationMDL No. 2499 In re: Goodman Manufacturing Co., L.P., HVAC Products Liability Litigation

and Victoza to regulate blood sugar and control type II diabetes, the plaintiffs developed pancreatic cancer, pancreatitis and thyroid cancer.

MDL Digest Page 3

MDL Case Updates Contd.

September 2013 Hearing Recap

MDL No. 2478 In re: Convergent Telephone Consumer Protection Act Litigation - District of Connecticut, Honorable Alvin W. Thompson

MDL No. 2477 In re: Electrolux Dryer Products Liability Litigation - Order Denying TransferMDL No. 2476 In re: Credit Default Swaps Antitrust Litigation - Southern District of New York, Honorable Denise L. CoteMDL No. 2475 In re: North Sea Brent Crude Oil Futures Litigation - Southern District of New York, Honorable Andrew L.

Carter, Jr.MDL No. 2474 In re: H&R Block IRS Form 8863 Litigation - Western District of Missouri, Honorable Fernando J.

Gaitan, Jr.MDL No. 2473 In re: Monsanto Company Genetically-Engineered Wheat Litigation - District of Kansas, Honorable

Kathryn H. VratilMDL No. 2472 In re: Loestrin 24 FE Antitrust Litigation - District of Rhode Island, Honorable William E. SmithMDL No. 2471 In re: Vehicle Carrier Services Antitrust Litigation - District of New Jersey, Honorable Esther SalasMDL No. 2470 In re: Schnuck Markets, Inc., Customer Data Security Breach Litigation - Eastern District of Missouri,

Honorable John A. Ross

Class Certified in MDL No. 2409

In re Nexium Antitrust Litig., No. 12-md-02409 (D. Mass. Nov. 14, 2013) (Young, J.).End-payors who purchased or provided reimbursements for Nexium, a prescription heartburn drug, brought suit for violation of the antitrust laws by virtue of Defendants delaying generic marketing, and sought class certification of a class of end-payors including individual consumers, third party payors, union plan sponsors, and insurance companies.

The Court granted class certification. The chief areas of contention in the Rule 23 analysis were adequacy and predominance. In considering arguments on adequacy, the Court credited Plaintiffs argument that all potential class members suffered the same harm and had fully aligned interests by virtue of the fact that they were all unlawfully overcharged for the same products. While Defendant argued that all the named plaintiffs were end-payors, and that third party payors should thus be excluded from the class on grounds that they had different interests, the Court disagreed, reasoning that Rule 23(a)(4) does not require that the named plaintiffs represent each sector of the putative class equally, but rather requires only that no conflicts exist among the class membersand Defendant had failed to show the existence of any such conflict. Accordingly, the Court found adequacy satisfied.

The Court then considered Plaintiffs motion to certify a class for injunctive relief under 23(b)(2), and denied it, reasoning that while it may be reasonable to assume that antitrust injury is incurred with every Nexium overcharge, resulting in continuing harm, injunctive relief is inappropriate where it is merely incidental to monetary damages. The Court found that such was the case here.

Turning to predominance, the Court acknowledged its duty to conduct a rigorous analysis, and explained the distinction between that and a full merits analysis, as well as its basis for refraining from conducting a full merits analysis. The Court then turned to the primary arguments at issue, and rejected Defendants contention that individual issues would predominate due to the classs inclusion of plaintiffs from multiple states with differing law, ruling that these variations were ultimately minor and did not stand as a bar to certification.

MDL Digest Page 4

Class Certified in MDL No. 2409 Contd.

Turning then to the question of whether issues related to the calculation of damages were sufficient to defeat predominance, the Court conducted a colorful assessment of the opposing expert reports and the tradition of affidavits in support of either side. Including among the Courts rulings was its assessment that while one expert had established that certain third party payors could have survived the class period without suffering overcharges, Defendant presented no evidence that any actually did. After excluding pharmacy benefit managers from the class, the Court ultimately determined that the question of whether end-payors all suffered identical overcharge injuries stemming from the same set of transactions could be determined based on class-wide proof. The Court also considered the United States Supreme Courts recent decision in Comcast, found that it did not bar certification in this matter, and found that Plaintiffs experts model demonstrated both common antitrust impact, and damages to the class, and suffered from none of the issues that doomed class certification in Comcast. Accordingly, the Court granted class certification.

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