IN RE: FLONASE ANTITRUST LITIGATION Smithkline Beecham Corporation, d/b/a GlaxoSmithKline; n/k/a GlaxoSmithKline LLC, including GlaxoSmithKline, PLC, Appellant
June 7, 2017
Appeal from the United States District Court for the Eastern
District of Pennsylvania (D.C. Civ. No. 2-08-cv-03301)
District Judge: Honorable Anita B. Brody
S. Blatt [ARGUED] R. Stanton Jones Sarah M. Harris Robert
Leider Sally L. Pei Arnold & Porter LLP Stephen J.
Kastenberg Burt M. Rublin Jessica M. Anthony Ballard Spahr
LLP Counsel for Appellant.
Richard A. Samp Mark S. Chenoweth Washington Legal Foundation
Counsel for Amicus Appellants National Association of
Manufacturers and Washington Legal Foundation.
William S. Consovoy Thomas R. McCarthy Carmeron T. Norris
Consovoy McCarthy Park Kate Comerford Todd Steven P. Lehotsky
Janet Galeria U.S. Chamber Litigation Center Counsel for
Amicus Appellant Chamber of Commerce of the United States of
Silverman Shook Hardy & Bacon H. Sherman Joyce Lauren
Sheets Jarrell American Tort Reform Association Counsel for
Amicus Appellant American Tort Reform Association.
D. Cohen Nussbaum Law Group PC John Alden Meade [ARGUED]
Young Cotter & MeadeCounsel for Appellee.
Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit
GREENAWAY, JR., Circuit Judge.
case, SmithKline Beecham Corporation, doing business as
GlaxoSmithKline ("GSK"), seeks to enforce a
court-approved settlement agreement and enjoin the State of
Louisiana, through its Attorney General, from bringing
allegedly released claims against GSK in the Louisiana state
courts. Louisiana protests this enforcement action on the
theory that the Eleventh Amendment to the Constitution of the
United States bars its involuntary inclusion in the
resolve this dispute, we must answer two questions: First,
does a motion for approval of a class action settlement
qualify as a suit against a state for Eleventh Amendment
purposes if the requested settlement agreement enjoins a
state from suing in a state court? Second, if the Eleventh
Amendment does cover this motion for settlement approval, may
GSK avoid the Eleventh Amendment's prohibition by showing
that Louisiana waived its sovereign immunity? We find that
the Eleventh Amendment covers this motion and that GSK may
not avoid its bar.
addition to this claim, GSK asserts that the District Court
abused its discretion in denying Rule 60(b) relief from a
final judgment. We find this argument unavailing. On these
two grounds, we will affirm.
14, 2008, private indirect purchasers of Flonase, a
brand-name prescription drug, sued GSK in the United States
District Court for the Eastern District of Pennsylvania. They
alleged that: (a) GSK had filed sham citizen petitions with
the Food and Drug Administration to delay the introduction of
a generic version of Flonase, and (b) this delay forced the
private indirect purchasers to pay more for Flonase than they
would have if the generic version were available. The private
indirect purchasers sued on behalf of themselves and a class
of other indirect purchasers. For the purpose of the case at
bar, two motions matter.
in the primary suit, the private indirect purchasers moved
for final approval of settlement on April 1, 2013, after the
District Court had certified the class, and had approved of
the notice to settlement class members. The State of
Louisiana, an indirect Flonase purchaser, qualified as a
potential class member but did not receive the approved
notice. Instead, it only received a Class Action Fairness Act
("CAFA") Notice. This notice, "serve[d] upon
the appropriate State official of each State in which a class
member resides, " included: (1) "a copy of the
complaint, " (2) "notice of any scheduled judicial
hearing in the class action, " (3) "any proposed or
final notification to class members, " (4) "any
proposed . . . class action settlement, " and (5) an
estimate of the number of class members in each state. 28
U.S.C. § 1715(b) (2012). The notice includes this
information because Congress "designed [this notice
requirement] to ensure that a responsible state and/or
federal official receives information about proposed class
action settlements and is in a position to react if the
settlement appears unfair to some or all class members or
inconsistent with applicable regulatory policies." S.
Rep. No. 109-14, at 31 (2005), as reprinted in 2005
U.S.C.C.A.N. 3, 32. It made clear, however, that state
officials "will not be required" to "get
involved." Id. at 33.
requested court order "permanently enjoined" all
members of the settlement class, including Louisiana, from
bringing released claims against GSK, even in Louisiana's
state court. Pls.' Mot. Final Approval Settlement and
Plan Allocation, Award Att'ys' Fees, Reimbursement
Expenses and Incentive Awards Named Pls. at 9-10, In re
Flonase Antitrust Litig., No. CV 08-3301, 2015 WL
9273274 (E.D. Pa. Dec. 21, 2015), ECF No. 574 [hereinafter
Motion for Final Approval of Settlement Plan]. The proposed
settlement agreement, among other things, provided
compensation to the plaintiffs and class members, released
the plaintiffs' and class members' claims,
"reserv[ed] exclusive and continuing jurisdiction over
the Settlement and this Settlement Agreement" for the
District Court, and gave GSK the power to enforce the
settlement. App. 98-107. On June 19, 2013, the District Court
approved the final settlement.
in the ancillary suit, GSK filed a motion to enforce the
settlement agreement against the Louisiana Attorney General
because, according to GSK, Louisiana violated the settlement
agreement. In its motion, GSK argued that "Louisiana did
not opt-out of the Settlement Class, and thus is bound by the
release and covenant not to sue provisions in the Settlement
Agreement and Final Order and Judgment." App. 314. As a
result, GSK "respectfully submit[ted] that this Court
should enjoin the Louisiana ...