In re: Suboxone Antitrust v. ( 2020 )

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