Insulin Action - Weitz Luxenberg Application For Interim Leadership (2017-05)

Case 3:17-cv-01823-BRM-LHG Document 18 Filed 05/05/17 Page 1 of 4 PageID: 386
May 5, 2017
VIA ECF
The Honorable Brian R. Martinotti

The Honorable Lois H. Goodman
United States Magistrate Judge
Clarkson S. Fisher Federal Bldg. & U.S. Courthouse
402 E. State Street
Trenton, NJ 08608
Re: In re Insulin Pricing Litigation, No. 3:17-cv-00699(BRM)(LHG) (Insulin Pricing)

Barnett v. Novo Nordisk Inc., et al., No. 3:17-cv-1580(BRM)(LHG) (Barnett)
Boss v. CVS Health Corp. et al., No. 3:17-cv-01823(BRM)(LHG) (Boss)
Christensen v. Novo Nordisk Inc., et al., No. 3:17-cv-02678(BRM)(LHG)(Christensen)
Dear Judges Martinotti and Goodman:
The four-firm team that filed Barnett and Christensen submits this reply in support of the
application of Weitz and Luxenberg and Berman DeValerio (the WL/BD Team) for designation
as interim co-lead counsel under Fed. R. Civ. P 23(g).
The WL/BD Team has great respect for the lawyers of Hagens Berman Sobol Shapiro LLP
(Hagens) 1 and Keller Rohrback LLP (Keller) who have submitted competing applications.
As stated in our initial application, the WL/BD Team has no objection to working as co-lead
counsel with these competing applicants if the Court determines that a hybrid leadership structure
would be in the best interests of the class.
I. CONSOLIDATION
As stated in our application, the WL/BD Team strongly believes that this litigation should
be consolidated2 into one case to maximize the benefits to the class, not parceled into subparts and
1
Although Hagens Berman has submitted its interim lead application jointly with the Carella Byrne firm, in its
communications with class members on its website, the Hagens firm states as follows: As of right now, James Cecchi
is local counsel for the patient-plaintiff class. However, because Hagens Berman Sobol Shapiro is lead counsel, our
firm will be directing the course of this litigation. Since Hagens describes itself as sole lead counsel in electronic
communications with class members, we use the same description here and refer solely to the Hagens application.
See, https://www.hbsslaw.com/cases/insulin-overpricing/pressrelease/insulin-overpricing-insulin-manufacturers-hit-
with-class-action-lawsuit-over-drug-price-inflation-scheme-and-rico-violations-time-to-break-up-the-insulin-racket
last visited on May 2, 2017.
2
Because the parties have addressed the issue of consolidation informally through correspondence, the WL/BD Team
has not formally filed a motion to consolidate the cases. We are willing to do so if the Court desires formal briefing.
May 5, 2017
Page 2
divvied out to firms whose focus would only be on certain defendants or only on certain claims
which are inextricably intertwined. And no applicant has provided a compelling rationale as to
why the case should be artificially litigated and tried as separate cases when every plaintiffs group
has pleaded the participation of the same actors in the same scheme injuring the same categories
of people.
II. INTERIM CLASS COUNSEL
In reviewing applications for lead counsel, the work counsel has done in identifying or
investigating potential claims is a factor that the Court must evaluate under Rule 23(g)(1)(A)(i).
And although the Hagens complaint correctly claims the first-to-file mantle, the WL/BD team
notes that details matter even if presentation of those details to the Court delays the submission
of a properly pleaded complaint.
So for instance, failing to provide requisite detail understates the level of pricing
misconduct engaged in by the defendants. The Hagens complaint, for example, pleads the gross
level of rebates for particular manufacturers as a percentage of gross sales for that manufacturer
for all drugs, and notes that the level of rebates that manufacturers are paying has increased to 35-
45% of gross sales.3 There is nothing misleading about this allegation. But it grossly understates
the magnitude of the Rebate Game4 as pleaded by the WL/BD Team for specific relevant insulin
products. And so, where Hagens has identified the rebate payments that particular manufacturers
have paid as a percentage of all of their products, the WL/BD Team has pleaded the specific
increase of rebate percentage for the Eli Lilly product Humalog, which has exploded from 32%
to 75% of gross sales in a little more than three years these rebate percentage levels are nearly
two times higher than those pleaded in the Hagens Complaint and underscore the magnitude of
the payoff made by the manufacturing Defendants to the PBM Defendants.
Similarly, the Hagens complaint pleads the quid pro quo nature of the rebate payments
made by manufacturers to the PBMs in conclusory fashion. The WL/BD Team, by contrast, sets
forth 36 paragraphs of detail on the quid pro quo nature of the rebate payments between the
manufacturers and the PBMs, what each side gets out of the arrangement, and how the payments
have caused insulin prices to skyrocket.5
It usually is not our custom to highlight these differences in complaints pled by competing
applicants in a lead counsel application process. But the Hagens Team has suggested that the
WL/BD Team has submitted a mere copy of the Hagens Complaint. To the contrary, the WL/BD
Team undertook its own investigation into the claims. Neither the concept of the case nor its fact
allegations were copied from Hagens. The WL/BD Team was not only the first to name the PBMs
as defendants, but the WL/BD complaints present substantially greater detail on crucial issues that
may play themselves out in dispositive motion briefing with the Defendants.
3
See In re Insulin Pricing Amended Complaint, 186-189 (Figures 21; 23; and 25).
4
For an excellent five minute video summary of the Rebate Game as it is pleaded in the WL/BD Team Complaint,
see http://www.wtae.com/article/skyrocketing-insulin-prices-force-some-to-choose-between-medicine-and-
food/9588176.
5
Christensen Cmplt. 128-164.
May 5, 2017
Page 3
With regard to naming the PBMs as defendants, it remains a mystery as to why Hagens has
shown itself reluctant to pursue the PBMs as defendants on behalf of the class. Hagens application
cites only the firms experience but avoids stating what about its experience makes them favor
backing away from the PBMs. The WL/BD Team remains committed to pursuing all culpable
entities to seek monetary recovery and injunctive relief for the class.
Lastly, the WL/BD Team has informed the Court of the lawyers who will be making the
face-to-face presentations to this Court, in status conferences, motion hearings and trial, should
the Court designate the WL/BD Team as interim lead counsel three seasoned litigators with
deep pharmaceutical experience, Ellen Relkin and Paul Novak (from Weitz & Luxenberg) and
Todd Seaver (from Berman DeValerio). When selecting lead counsel, the Court has a right to
know which counsel it may expect to actually perform the day-to-day litigation of the case in its
courtroom and between court appearances.
The Hagens application identifies only one lawyer, Steve Berman, as its committed lawyer
to this case.6 However, he is currently designated personally as lead counsel in seven active class
actions7 and as an executive committee or steering committee member in three more.8 Mr. Berman
is also right now seeking his personal appointment as lead counsel of a nationwide consumer class
in an antitrust class action against Qualcomm.9 While Mr. Berman is undoubtedly a talented and
ambitious lawyer, with him having made promises to ten (and counting) classes to personally lead
their class cases, the Hagens application fails to explain how Mr. Berman will personally direct
the litigation in this one. Consequently, the Court should give no weight to Mr. Bermans promise
to personally handle this case.
Respectfully, the WL/BD Team renews its request that it be designated as interim lead
counsel of a consolidated class action addressing the insulin pricing issues set forth in the cases
pending before this Court pursuant to Fed. R. Civ. P 23(g)(3).
6
Hagens application, p.8.
7
Rollolazo v. BMW of North America, LLC, No. 16-cv-00966 (C.D. Cal.); In re: Animation Workers Antitrust Litig.,
No. 14-cv-04062 (N.D. Cal.); In re: NCAA Grant-in-Aid Cap Antitrust Litig., 14-md-2541 (N.D. Cal.); In re: General
Motors Ignition Switch Litig., No. 14-md-2543 (S.D.N.Y.); In re: NCAA Student-Athlete Concussion Injury, No. 13-
md-2492 (N.D. Ill.); In re: Lumber Liquidators Flooring Products Litig., 15-md-02627 (E.D. V.A.); In re: MyFord
Touch Consumer Litig., No. 13-cv-03072 (N.D. Cal.).
8
In re: Volkswagen Clean Diesel, No. 15-md-02762 (N.D. Cal.); In re: Fresenius Granuflo/Naturalyte, No. 13-md-
2428 (D. Mass.); In re: FCA US LLC Monostable Electronic Gearshift Litig., No. 16-md-02744 (E.D. Mich.).
9
See In re Qualcomm Antitrust Litigation, Master Case No. 17-md-2773 (N.D. Cali.), Motion to Appoint Interim Co-
Lead Counsel, ECF No. 13 at 3 -5.
May 5, 2017
Page 4
Respectfully Submitted,
BERMAN DEVALERIO WEITZ & LUXENBERG

A New York Professional Corporation
By: /s/ Todd A. Seaver By: /s/ Ellen Relkin

Todd A. Seaver Ellen Relkin
Todd A. Seaver (pro hac vice) Ellen Relkin (N.J. Attorney Bar
Jessica Moy (pro hac vice) #006691985)
William O. Bass (pro hac vice) 220 Lake Drive East, Suite 210
44 Montgomery St., Ste. 650 Cherry Hill, NJ 08002
San Francisco, CA 94104 Telephone: (212) 558-5500
Telephone: (415) 433-3200 Email: ERelkin@weitzlux.com
Email: tseaver@bermandevalerio.com
jmoy@bermandevalerio.com
wbass@bermandevalerio.com By: /s/ Paul F. Novak
Paul F. Novak (pro hac vice)

Diana Gjonaj (pro hac vice)
Gregory Stamatopoulos (pro hac vice)
719 Griswold, Ste. 620
Detroit, MI 48226
Telephone: (313) 800-4170
Email: pnovak@weitzlux.com
dgjonaj@weitzlux.com
gstamatopoulos@weitzlux.com
cc: Counsel of Record (via ECF or email)

April 28, 2017
VIA ECF

United States Magistrate Judge
Clarkson S. Fisher Federal Bldg. & U.S. Courthouse
402 E. State Street
Trenton, NJ 08608
Re: In re Insulin Pricing Litigation, No. 3:17-cv-00699(BRM)(LHG) (Insulin Pricing)

Barnett v. Novo Nordisk Inc., et al., No. 3:17-cv-1580(BRM)(LHG) (Barnett)
Boss v. CVS Health Corp. et al., No. 3:17-cv-01823(BRM)(LHG) (Boss)
Christensen v. Novo Nordisk Inc., et al., No. 3:17-cv-02678(BRM)(LHG)(Christensen)
Dear Judges Martinotti and Goodman:
We submit this letter application on behalf of the four firms that have alleged antitrust,
RICO, and state unfair trade practice violations in the Barnett complaint and the Christensen
complaint to support the appointment of Weitz and Luxenberg, and Berman DeValerio (together,
the WL/BD Team) as interim co-lead counsel pursuant to Fed. R. Civ. P 23(g). By this letter,
our firms also respectfully submit that the Court should consolidate all of the above-referenced
insulin cases into one consolidated amended action because it makes no sense to litigate these
cases as separate (even if coordinated) matters on behalf of the same putative class and risk
potentially inconsistent results when the fact allegations arise from identical events, substantially
similar claims and overlapping (albeit, not identical) parties.
I. INTRODUCTION
We jointly represent 18 diabetic plaintiffs from 13 states who have paid out of their own
pocket for life-preserving insulin medication. We have brought claims on behalf of these plaintiffs
and a putative class of similarly situated insulin consumers who have been forced to pay
excessive, anticompetitive insulin prices or risk their very lives as a result of Defendants conduct.
Indeed, one of our class representative plaintiffs, Mrs. Gilmore, was briefly hospitalized after
rationing her insulin medication due to the excessive out of pocket costs that exceed her fixed
monthly budget.
In November of 2016, Senator Bernie Sanders and Representative Elijah Cummings wrote
to the U.S. Department of Justice, expressing outrage over the dramatic price hikes of insulin, and
April 28, 2017
Page 2
requested an investigation into possible collusion between insulin manufacturers. Defendant Novo
Nordisk reacted to the rising furor in late November by issuing a press release discussing the cause
of insulin price hikes and the WL/BD Teams investigation of insulin pricing commenced shortly
thereafter before any firm filed an insulin related complaint in this or any other Court. Our initial
investigation determined that one of the most prominent factors in these price hikes was a series
of bilateral, exclusionary rebate contracts entered between into the Manufacturer Defendants1 and
the PBM Defendants.2
In a case that significantly affects the putative class with significant economic harm, if not
potentially life-threatening outcomes, the chosen lead counsel has a fiduciary duty to the class not
to pull their punches. And so, for example, where other firms have similarly identified the PBMs
as participants in a RICO enterprise that led to the dramatic price increases for insulin, our Barnett
complaint was the first complaint that named these PBMs as defendants. Similarly, because the
anticompetitive features of rebate agreements3 entered between the Manufacturer Defendants and
the PBM Defendants are a significant element of this case, the Barnett complaint alleges that these
agreements and corollary conduct violate federal and state antitrust law. Other firms initially pled
such antitrust claims against the Insulin Manufacturers, but have dropped them.4
The Interim Class Counsel ultimately appointed to lead these actions should be selected
based in large part on whether they will name the PBMs as defendants alongside the Insulin
Manufacturers in a single, consolidated complaint that includes antitrust causes of action. Only
class counsel willing to do so will be best able to represent the interests of the class. Fed. R.
Civ. P. 23(g)(2). The WL/BD Team will.
As detailed below, the WL/BD Team ably meets the requirements of Fed. R. Civ. P 23(g)
and, we respectfully submit, should be appointed as co-lead counsel over a single consolidated
1
Manufacturer Defendants or Insulin Manufacturers refer to Eli Lilly and Company (Eli Lilly), Novo Nordisk,
Inc. (Novo Nordisk), and Sanofi-Aventis U.S., LLC (Sanofi).
2
PBM Defendants or PBMs refer to Defendants Express Scripts, Inc. and Express Scripts Holding Company
(collectively, Express Scripts), CVS Health Corp. (CVS), and United HealthGroup, Inc. and OptumRx, Inc.
(OptumRx).
3
Even one of the Defendants in this action, Sanofi Aventis, just filed an antitrust lawsuit in this Court that rests on
allegations that rebate agreements concerning EpiPens violate the antitrust laws and cause hyper-inflated retail prices
of that product. Sanofi-Aventis U.S. LLC v. Mylan, Inc., No. 3:17-cv-02763-FLW-TJB, ECF No. 1, 92 (D.N.J. Apr.
24, 2017). The gravamen of the lawsuit is that rebate agreements can have anticompetitive consequences that violate
the antitrust laws. Indeed, Sanofi-Aventis alleges in its lawsuit that a competing drug manufacturer has sharply raised
its list prices in order to absorb the large rebates it contractually agrees to pay to PBMs and third-party payors for
exclusive formulary placement. Similar harms have been inflicted here, and justify the inclusion of similar antitrust
claims on behalf of the class of insulin users in a consolidated amended complaint. See, e.g., Christensen Complaint,
150.
4
Compare Chaires v. Novo Nordisk, Inc. et al., No. 3:17-cv-00699, ECF No. 1, 293-303 (D.N.J. Feb. 2, 2017)
(Count IV: Violations of Sherman Act) with In re Insulin Pricing Litig., No. 3:17-cv-00699-BRM-LHG, ECF No. 18
(Mar. 17, 2017)(amended complaint, not including Sherman Act cause of action).
April 28, 2017
Page 3
insulin pricing action. Alternatively, if the Court determines that a joint leadership structure should
be drawn from across the several insulin plaintiff firms that have filed complaints, neither Weitz
and Luxenberg nor Berman DeValerio object to being designated as co-lead counsel of a single
consolidated matter in conjunction with other applicants deemed qualified by the Court. Indeed,
the firms representing plaintiffs in the other complaints are themselves among the most
experienced and qualified in prosecuting complex class action cases, and we have worked in the
past with nearly all those firms. Furthermore, we have a long history of working civilly with
opposing counsel, which in this action promise to be among the finest defense counsel in the
nation.
II. WL/BD TEAM SUPPORTS CONSOLIDATION OF ALL INSULIN PRICING

ACTIONS
Rule 42(a) gives the district court broad powers to consolidate actions involving common
questions of law or fact if, in its discretion, such consolidation would facilitate the administration
of justice.5 Here, the WL/BD Team, all of the Insulin Manufacturer Defendants and one of the
three PBM Defendants (CVS/Caremark) all support full consolidation of the four pending insulin
actions.
The remaining PBM Defendants do not support full consolidation of the cases, and instead,
suggest that only the cases that name all of the PBM Defendants (Christensen, Barnett and Boss)
should be consolidated. Their position appears to be premised upon the mistaken notion that the
parties or the claims in each action must be identical in order for consolidation of all actions to be
warranted. This is not the law. Although identity of the parties in multiple actions strengthens
the case for consolidation under Rule 42(a), it is not required. A substantial common question of
law or fact is enough.6 Moreover, [c]onsolidation is not barred simply because the plaintiffs may
be relying on different legal theories or because there are some questions that are not common to
all the actions .7
In this case, every plaintiff group has pleaded common questions of law and fact concerning
the participation of all Defendants8 in a civil RICO enterprise and related state consumer law
claims, as well as common factual questions that support all of the other claims pleaded in each
5
Lewis v. Lipocine Inc., Civil Action Nos. 16-4009-BRM-LHG & 16-4067-BRM-LHG, 2016 WL 7042075, at *2
(D.N.J. Dec. 2, 2016) (Martinotti, J.) (internal quotation marks and citations omitted).
6
Wright, Miller & Cooper, Fed. Prac. & Proc. Civ. 2384 (3d ed. 2017).
7
Id.
8
Even the Insulin Pricing plaintiffs have pleaded that the PBMs have participated in the civil RICO enterprises and
have violated state consumer laws. Even though they have pleaded the PBMs participation, they have not elected to
take the next step and actually sue the PBMs.
April 28, 2017
Page 4
complaint.9 These common legal and factual questions fully authorize consolidation under Rule
42(a).
Discretionary considerations also support full consolidation. Most obviously, there will be
tremendous reduction of duplication and corresponding gains in both judicial and party efficiency
if discovery and motion practice are consolidated. Dispositive motion briefing of a single
consolidated complaint will unify the plaintiffs presentation to the court, eliminate the risk that
multiple plaintiff groups will take inconsistent positions on behalf of what is essentially the same
putative class, and reduce the sheer volume of what would otherwise be duplicative sets of
submissions by multiple plaintiff groups. Similarly, full consolidation reduces the risk of conflicts
in discovery between the parties. And full consolidation will ensure that the position of the
putative class is presented with one set of expert witnesses, as opposed to multiple sets of experts
which again increases the chances of inconsistent positions being advocated on behalf of the
same putative class.
Most significantly, the WL/BD Team has identified and pleaded multiple instances where
the Manufacturing Defendants blame the PBM Defendants for the insulin price increases, and vice
versa.10 Moreover, the WL/BD Team has set forth specific fact allegations showing that the
actions of both the Insulin Manufacturers and the PBMs have caused the dramatic inflation of
insulin prices.11
Given these facts, class counsel cannot adequately or fairly represent the class without
naming the PBMs as defendants alongside the Insulin Manufacturers. Should a consolidated case
proceed without naming the PBMs as defendants, at a trial of that action the Insulin Manufacturers
would likely tell a jury exactly what they are already publicly saying, that the PBMs are more
blameworthy for skyrocketing insulin prices. It presents the classic empty chair defense where
the jury cannot accurately assign liability because vital actors are not there.12
Even worse, if the actions are not fully consolidated and somehow severed so that claims
against the Insulin Manufacturers are tried separately from claims against the PBM Defendants, it
is conceivable that each group of Defendants might be able to partially or fully avoid liability by
blaming the other. Avoidance of such inconsistent factual determinations similarly justifies
consolidation. See Welch v. Cape May Cnty. Corr. Ctr., No. CV 15-8745(RMB-JS), 2016 WL
1600213, at *2 (D.N.J. Apr. 21, 2016) (Specific factors to consider in consolidation are risk of
9
See Christensen Complaint, 221-661; Boss Complaint, 374-512, 591-1053; Barnett Complaint, 194-634; In
re Insulin Pricing Amended Complaint, 220-745.
10
See Christensen Complaint, 144, 147, 149-150, 152-157.
11
See Christensen Complaint, 129-157.
12
The presence of joint and several liability for plaintiffs asserted causes of action may not fully avoid this concern.
Nor is it enough to assign PBMs the role of third-party witnesses, as the PBMs would likely not be subject to trial
subpoenas, domiciled as they are beyond the 100-mile radius of the Court in Missouri, Minnesota and Rhode Island.
See Fed. R. Civ. P. 45(c)(1).
April 28, 2017
Page 5
possible confusion, risk of inconsistent adjudications of common issues of law and fact, burden on
parties and witnesses, length of time required and relative expense.)
It is unclear why some plaintiffs counsel are reluctant to name the PBMs as defendants
when, in their own complaint, the PBMs are accused of being part of a corrupt racketeering
enterprise, as pivotal actors in drug payment and pricing system who hold the keys to the
castleaccess to the formularies established by the PBMs. In re Insulin Amended Complaint,
8, 220-345. It is apparent from the investigation by the WL/BD Team that there are grounds to
allege that the PBMs and Insulin Manufacturers are both liable here.
III. THE WL/BD TEAM MEETS THE RULE 23(G)(1)(A) CRITERIA
A. Legal Standard
When there is more than one adequate applicant seeking appointment as class counsel, the
court must appoint the applicant best able to represent the interests of the class. Fed. R. Civ. P.
23(g)(2). The Rule provides a non-exhaustive list of factors a court must consider:
(i) the work counsel has done in identifying or investigating potential claims in
the action; (ii) counsels experience in handling class actions, other complex
litigation, and the types of claims asserted in the action; (iii) counsels
knowledge of the applicable law; and (iv) the resources that counsel will
commit to representing the class.
Fed. R. Civ. P. 23(g)(1)(A). The WL/BD Team meet these criteria.
B. The WL/BD Team Has Conducted a Thorough Investigation to Identify

Appropriate Claims and Defendants
The WL/BD Team investigated insulin pricing beginning in December 2016, sparked by a
press release from defendant Novo Nordisk that sought to explain why it had been increasing its
insulin prices. See Our perspectives on pricing and affordability. press.novonordisk-
us.com/perspectives?item=1 (Nov. 30, 2016). That publication included a link to a pictorial
representation and description of who exactly is harmed by direct exposure to the price increases,
which WL/BD have included in the Barnett ( 12) and Christensen ( 16) complaints. Each of the
plaintiff complaints, including the first-filed action, allege class definitions that mirror the Novo
Nordisk description of which insulin purchasers are most injured by dramatic increases to insulin
list prices: Those exposed to list price include patients: without insurance; fulfilling coinsurance
or deductible requirements; within the Medicare Part D coverage gap.
April 28, 2017
Page 6
After months of investigation, the WL/BD Team filed Barnett v. Novo Nordisk, Inc., et al.,
No. 3:17-cv-01580-BRM-LG on March 8, 2017.13 While it was not the first-filed complaint, it
was the first to name the PBMs as defendants, and WL/BD is the only class counsel alleging
antitrust causes of action based on bilateral contracts between individual Insulin Manufacturers
and individual PBMs.14
The allegations in the complaints filed by WL/BD reflect extensive investigation and
analysis, and demonstrate the firms willingness to invest significant time and resources to
prosecuting this case. The WL/BD Team has retained and consulted with industry experts with
insight into insulin pricing and PBMs formularies. Berman DeValerios in-house investigators
performed an investigation of potential collusion amongst PBMs and amongst Insulin
Manufacturers. Berman DeValerio mined defendants SEC filings, earnings call transcripts,
conference call transcripts, and analyst reports to uncover corroborating facts that are uniquely set
forth in only the Barnett and Christensen complaints. Additionally, we obtained Wholesale
Acquisition Cost pricing data that no other firm has utilized, and performed independent economic
analysis illustrating Drug Manufacturer Defendants lock-step price increases that are graphically
presented in our complaints. See, e.g., Christensen Complaint, 124 (Figure 5), 127 (Figures 6-
9).
C. The WL/BD Team Has Extensive Experience Leading Class Actions and
other Complex Litigation, Including in the Pharmaceutical Industry
Weitz and Luxenberg
The Weitz and Luxenberg attorneys who will be primarily responsible for the adjudication
of this case are Ellen Relkin, Paul F. Novak, Gregory Stamatopoulos, and Diana Gjonaj.
Weitz and Luxenberg is a national AV-rated law firm of 90 attorneys and 300 support staff
headquartered in New York City, with additional offices in Cherry Hill, Detroit and Los Angeles.
Weitz has represented individuals, communities and classes across the country to obtain redress
from corporate wrongdoing and the firms attorneys have a long history of plaintiff representation
in the pharmaceutical industry. The firm is accustomed to participating in large, complex cases
involving mass actions, statewide and/or nationwide class actions, and it has consistently met the
financial obligations required of these types of cases. The firm has the dedication, human and
financial resources, and litigation experience to meet the challenges presented in this litigation.
The firms many accomplishments include significant settlements of class action or mass litigation
including In re: Actos (pioglitazone) Products Liability Litigation, MDL No. 2299 (co-lead
counsel in settlement of a $2.4 billion pharmaceutical products liability action); In re Oil Spill by
13
The WL/BD Team filed a subsequent complaint alleging the same nucleus of facts on behalf of additional plaintiffs
in Christensen v. Novo Nordisk, Inc., et al., No. 3:17-cv-02678-BRM-LG on April 20, 2017.
14
See supra, Footnote 3, concerning defendant Sanofi-Aventis antitrust lawsuit filed this week that alleges that a rival
drug manufacturers payments to PBMs and other payers are anticompetitive restraints of trade.
April 28, 2017
Page 7
the Oil Rig Deepwater Horizon in the Gulf of Mexico, MDL No. 2179 (plaintiff steering
committee participation in excess of $10 billion settlement); In re Methyl Tertiary Butyl Ether
(MTBE) Prods. Liab. Litig., MDL No.1358 (plaintiff liaison counsel and lead litigation counsel
for a settlement of $423 million); In Re: Stryker Rejuvenate Hip Stem Litigation, MCL 296
(plaintiff liaison and lead counsel negotiating settlement exceeding $1.5 billion).
Ellen Relkin is of counsel to Weitz & Luxenberg, P.C. in New York City and Cherry Hill,
New Jersey where she has practiced for more than twenty years. She is certified by the New Jersey
Supreme Court as a Certified Civil Trial Attorney. She has been elected as a Super Lawyer of
New Jersey and New York as well as AV rated and selected for the Martindale-Hubbell Bar
Register of Preeminent Women Lawyers. Ms. Relkin serves on the Executive Committee in the
In Re: Invokana Products Liability Litigation, MDL No. 2750, and the Plaintiffs Steering
Committee in In Re: Xarelto (Rivaroxaban) Products Liability Litigation (MDL 2592) in the US
District Court for the Eastern District of Louisiana.
She was appointed as lead counsel in the New Jersey In Re: Stryker Rejuvenate/ABG II
Modular Hip Litigation MCL 296 and participated as a member of the negotiating team for a
settlement compensating thousands of plaintiffs in an amount exceeding $1.5 billion. Ms. Relkin
is co-lead counsel in the DePuy ASR MDL litigation. In that capacity she played a key role in
negotiating the $2.5 billion settlement for 8,000 victims of the failed hip implant. She has also
served as New Jersey Co-Liaison Counsel in In Re: Yaz, Yasmin, Ocella Litigation, Case Code
No. 287, New Jersey Superior Court, Bergen County and as New Jersey Liaison Counsel in In Re:
Stryker Trident Hip Implant Litigation, Case Code No. 285, New Jersey Superior Court, Atlantic
County, and as a member of the Plaintiffs' Executive Committee of In Re: Ortho Evra Products
Liability Litigation (MDL #1742). She was a member of the trial team in the landmark Vioxx case
McDarby v. Merck, that obtained a $13.5 million verdict and successfully defended the
compensatory verdict arguing the appeal before the New Jersey Appellate Division, 949 A.2d 223
(N.J. App. Div. May 29, 2008). Ms. Relkin is an elected member of the American Law
Institute. She serves on the Board of Governors of the New Jersey Association for Justice and is
the Vice President of the Roscoe Pound Civil Justice Institute. She also serves on the Board of
Visitors of the University of California at Irvine Law School. She is a former chair of the Toxic,
Environmental and Pharmaceutical Torts Section of the American Association of Justice.
Paul F. Novak recently joined Weitz and Luxenberg after 8 years as a partner heading the
antitrust practice group at Milberg LLP and 15 years as an Assistant Attorney General in charge
of antitrust enforcement and complex litigation for the Michigan Department of Attorney General.
Mr. Novak sat on the National Association of Attorneys General (NAAG) Prescription Drug
Pricing Task Force and served as co-lead counsel on behalf of all 50 state attorneys general in the
In re Cardizem CD Antitrust Litigation, MDL No. 1278 ($80 million pharmaceutical antitrust
settlement); as lead counsel for the State of Michigan in the In re Lorazepam and Chlorazepate
Antitrust Litig., MDL No. 1290 ($100 million pharmaceutical antitrust settlement) and the In re
Buspirone Antitrust Litig., ($100 million pharmaceutical settlement). He was also appointed as
co-lead counsel for the class in Blessing v. Sirius XM (S.D.N.Y No.09-10035) (Clayton Act merger
April 28, 2017
Page 8
challenge with injunctive relief valued at $180 million). He is past chair of the NAAG Midwest
Antitrust Enforcement Committee and the State Bar of Michigan Antitrust, Trade Regulation and
Franchising Section. His antitrust work has been featured in the National Law Journal on the
Plaintiffs Hot List. He is routinely recognized as one of Michigans Super Lawyers, as a Best
Lawyer in DBusiness Magazine, as AV-rated by Martindale Hubbell, and as one of the top plaintiff
antitrust lawyers in the nation by the Global Competition Reviews Whos Who in International
Competition Law. Mr. Stamatopoulos and Ms. Gjonaj are associates at Weitz and Luxenberg and,
along with Mr. Novak, also previously litigated class action cases at Milberg LLP.
Berman DeValerio
The Berman DeValerio attorneys who will be primarily responsible for the adjudication of
this case are Todd A. Seaver, Jessica Moy and William O. Bass, and other attorneys and
professional personnel as required.
Berman DeValerio is a national law firm with forty attorneys, a team of in-house
investigators, forensic accountants and other professionals in offices on both the east coast and
west coast. The firm has litigated class actions in this District and in courts around the country for
over thirty years, and has been appointed by courts to serve as lead or co-lead counsel in scores of
complex antitrust, securities and consumer class actions. The firm regularly represents institutions,
corporations and consumers in class and non-class litigation.
Mr. Seaver and Berman DeValerio were co-lead counsel representing health insurer Aetna
in the first antitrust challenge to a reverse payment between a generic drug manufacturer and
brand name drug manufacturer. In re Cardizem CD Antitrust Litigation, 99-md-1278 (E.D. Mich.).
The action resulted in a successful recovery of $80 million and a pioneering ruling in the appellate
court which held that the brand name drug manufacturer's payment of $40 million per year to the
generic company for the generic to delay bringing its competing drug to market was a per se
unlawful market allocation agreement under federal and state antitrust laws. That victory for years
shaped the ongoing antitrust battle over competition in the pharmaceutical market.
Mr. Seaver has additional experience as court-appointed lead or co-lead counsel in antitrust
class actions, including lead counsel in In re New Motor Vehicles Canadian Export Antitrust Litig.,
03-md-1532 (D. Me.), one of the largest antitrust actions in history; co-lead counsel in In re
Lithium Ion Batteries Antitrust Litig., 13-md-2420-YGR (N.D. Cal.), and In re Online DVD Rental
Antitrust Litig., 09-md-2029 (PJH) (N.D. Cal.) (Plaintiffs Steering Committee).
Mr. Seaver recently concluded a highly complex, non-class case that shows he will not shy
away from litigating for his clients against entities others will not challenge in court. Mr. Seaver
led a groundbreaking case stemming from the 2008 financial crisis against the major credit rating
agencies, Standard & Poors and Moodys, in California Public Employees Retirement System v.
Moodys Corp., No. CGC-09-490241 (Cal. Super. Ct. San Francisco Cty.). Mr. Seaver
represented the nations largest public pension fund, the California Public Employees Retirement
April 28, 2017
Page 9
System (CalPERS), in litigation that held the rating agencies responsible for negligent
misrepresentations of complex structured finance instruments. Moodys and Standard & Poors
agreed to pay a total of $255 million to settle CalPERS claim that Aaa ratings on three esoteric
bond investments were negligent misrepresentations. The settlements rank as the largest recoveries
from Moodys and S&P in a private lawsuit for civil damages, and resulted in an appellate ruling
that rating agencies can be liable for negligent misrepresentations for their credit ratings.
Berman DeValerio has demonstrated that it is willing to commit the resources and time
necessary to litigate a complex class action such as this one, as they have done in many cases. A
firm resume is available at
http://www.bermandevalerio.com/images/pdfs/BD_Firm_Biograph_2017-04-27.pdf
Below are highlights of other relevant cases.
Sullivan v. DB Investments Inc., No. 04-02819 (D.N.J.) (Chesler, J.). Mr. Seaver
and Berman DeValerio represented a class of diamond resellers, such as diamond
jewelry stores, in this case alleging that the De Beers group of companies unlawfully
monopolized the worldwide supply of diamonds in a scheme to overcharge resellers
and consumers. The settlement included a cash payment to class members of $295
million and a comprehensive injunction limiting De Beers' ability to restrict the
worldwide supply of diamonds in the future.
In re Abbott Laboratories Norvir Antitrust Litigation, Nos. 04-1511, 04-4203 (N.D.

Cal.). Berman DeValerio successfully prosecuted a class action on behalf of
HIV/AIDS patients against Abbott Laboratories, alleging that the pharmaceutical giant
violated antitrust and unfair trade practice laws by hugely inflating the price of Norvir,
one of the essential drugs at the time for the nearly half million people living with
HIV/AIDS, from $200 to over $1,000 per prescription. Plaintiffs were successful
through summary judgment including the invalidation of two key patents based on prior
art, while reversed in part on appeal in the Ninth Circuit. The case settled for $10
million.
D. The firms Cafferty Clobes Meriwether & Sprengel LLP (CCMS) and Rago
Law Firms also support the WL/BD Team proposal
Attorneys with Cafferty Clobes Meriwether & Sprengel LLP (CCMS) also support the
leadership application of the WL/BD Team. CCMS has offices in Chicago, Philadelphia, and Ann
Arbor, and possesses its own extensive experience in antitrust class actions, especially with regard
to the pharmaceutical industry. See, e.g., In re Prandin Direct Purchaser Antitrust Litig., Civ. No.
10-12141 (E.D. Mich.)($19 million settlement); In re TriCor Indirect Purchaser Antitrust Litig.,
No. 05-360 (D. Del)($65.7 million settlement); In re Relafen Antitrust Litig. No. 01-12239 (D.
Mass.)($75 million settlement); In re Warfarin Sodium Antitrust Litig., MDL 98-1232 (D.
Del.)($44.5 million settlement). They have been appointed lead counsel in these and other antitrust
April 28, 2017
Page 10
class actions, including In re Insurance Brokerage Antitrust Litig., No. 04-5184 (MDL No. 1663)
with settlements aggregating over $270 million in this District. Information concerning the cases
in which CCMS attorneys have had a leadership role, including currently pending actions, is
available on the firms website: www.caffertyclobes.com.
Similarly, Michelle Rago has more than fifteen years of experience in class action
litigation, and brings unique insight and expertise to the WL/BD Team. After her first child was
diagnosed with Type 1 diabetes, Ms. Rago left law firm practice to form a solo practice in 2004.
For more than a dozen years, she has represented people with Type 1 diabetes in negotiations with
insurance companies to obtain necessary diabetic supplies. She has represented children with
diabetes to obtain necessary services at schools to treat their diabetes. Ms. Rago serves as a member
of the American Diabetes Association volunteer Legal Advocacy network. Since 2002, she has
served as faculty at ChildrenWithDiabetes conferences throughout the country, in the UK, Italy,
and Canada. Ms. Rago has served as a foster parent in Westchester County for children with
diabetes and adopted a baby with diabetes ten years ago. Her third child was diagnosed with Type
1 diabetes in 2015. Michelle Ragos unique expertise with diabetes combined with her
understanding of class action law makes her a valuable resource in the prosecution of this case.
IV. CONCLUSION
For the foregoing reasons, the WL/BD Team respectfully requests appointment as interim
co-lead class counsel of a single, consolidated action.
April 28, 2017
Page 11
Respectfully submitted,
BERMAN DEVALERIO WEITZ & LUXENBERG

A New York Professional Corporation
By: /s/ Todd A. Seaver By: /s/ Ellen Relkin

Todd A. Seaver Ellen Relkin
Todd A. Seaver (pro hac vice) Ellen Relkin (N.J. Attorney Bar
Jessica Moy (pro hac vice) #006691985)
William O. Bass (pro hac vice) 220 Lake Drive East, Suite 210
44 Montgomery St., Ste. 650 Cherry Hill, NJ 08002
San Francisco, CA 94104 Telephone: (212) 558-5500
Telephone: (415) 433-3200 Email: ERelkin@weitzlux.com
Email: tseaver@bermandevalerio.com
jmoy@bermandevalerio.com Paul F. Novak (pro hac vice)
wbass@bermandevalerio.com Diana Gjonaj (pro hac vice)
Gregory Stamatopoulos (pro hac vice)
719 Griswold, Ste. 620
Detroit, MI 48226
Telephone: (313) 800-4170
Email: pnovak@weitzlux.com
dgjonaj@weitzlux.com
gstamatopoulos@weitzlux.com
cc: Counsel of Record (via ECF or email)

Insulin Action - Weitz Luxenberg Application For Interim Leadership (2017-05)

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Case 3:17-cv-01823-BRM-LHG Document 18 Filed 05/05/17 Page 1 of 4 PageID: 386

The Honorable Brian R. Martinotti

Re: In re Insulin Pricing Litigation, No. 3:17-cv-00699(BRM)(LHG) (Insulin Pricing)

Dear Judges Martinotti and Goodman:

II. INTERIM CLASS COUNSEL

BERMAN DEVALERIO WEITZ & LUXENBERG

By: /s/ Todd A. Seaver By: /s/ Ellen Relkin

Paul F. Novak (pro hac vice)

cc: Counsel of Record (via ECF or email)

April 28, 2017

The Honorable Brian R. Martinotti

Re: In re Insulin Pricing Litigation, No. 3:17-cv-00699(BRM)(LHG) (Insulin Pricing)

Dear Judges Martinotti and Goodman:

II. WL/BD TEAM SUPPORTS CONSOLIDATION OF ALL INSULIN PRICING

III. THE WL/BD TEAM MEETS THE RULE 23(G)(1)(A) CRITERIA

Fed. R. Civ. P. 23(g)(1)(A). The WL/BD Team meet these criteria.

B. The WL/BD Team Has Conducted a Thorough Investigation to Identify

Weitz and Luxenberg

Below are highlights of other relevant cases.

In re Abbott Laboratories Norvir Antitrust Litigation, Nos. 04-1511, 04-4203 (N.D.

BERMAN DEVALERIO WEITZ & LUXENBERG

By: /s/ Todd A. Seaver By: /s/ Ellen Relkin

cc: Counsel of Record (via ECF or email)

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