Kaye Scholer Secures Denial of Class Certification in Birth Control Recall Case

November 4, 2015

Kaye Scholer successfully secured a decision from the US District Court for the Northern District of Georgia denying class certification in a case related to the recall of certain birth control pills by our client, Vintage Pharmaceuticals, LLC d/b/a Qualitest Pharmaceuticals, a unit of Endo Pharmaceuticals Inc.

The proposed class action related to the September 2011 recall of several oral contraceptive products manufactured for Qualitest after select blister packs within the recalled drug lots were rotated 180 degrees within the card, reversing the weekly tablet orientation and making the lot number and expiry date no longer visible. Plaintiffs alleged that they purchased one or more incorrectly packaged products and, as a result of taking the pills in the wrong order, were left at risk for unwanted pregnancy.

In denying the plaintiffs’ motion for class certification, the court found that plaintiffs’ claims were not suited for class-wide adjudication for multiple reasons, including plaintiffs’ failure to define an ascertainable class and because any common issues concerning the reason for the recall did not predominate over the individualized questions relevant to each plaintiff’s claims.

“As Defendants point out, there are a myriad of reasons why this case is not suitable for class resolution. The Court selects the most pressing of those reasons to discuss, but that does not diminish the merit of Defendants’ other arguments,” the decision noted. “The Court also finds that Plaintiffs’ motion for class certification does not meet the standard of a ‘rigorous analysis.’ Although the motion goes into detail about the recall, it fails to address many of the required elements of proving suitability of class certification and relies primarily on generalities about the circumstances involved.”

As a result of the court’s November 4 decision, the case can only now proceed on the basis of the two individual plaintiffs who initiated the request for the class action.

The Kaye Scholer team was led by partner Pamela Yates and included counsels Angela Vicari and Alan E. Rothman.

This is the latest in a series of victories achieved by Kaye Scholer for Qualitest in cases involving allegedly improperly packaged birth control pills. In 2012, we secured the dismissal of a class action, Zubrick v. Endo Pharmaceuticals (USDC, Northern District of Illinois), due to lack of standing because there was no evidence that the plaintiff received a defective package. On the heels of the success in Zubrick, we achieved a similar victory by securing a denial of a plaintiff’s motion for class certification and a partial grant of summary judgment in Federman v. Qualitest (Los Angeles Superior Court). In August 2014, we successfully obtained an order from the US Judicial Panel on Multidistrict Litigation rejecting plaintiffs’ petition to centralize the current proposed class action and an action filed on behalf of an individual plaintiff in another federal court. And in September 2014, we secured dismissal of a case that was pending in the US District Court for the Western District of Missouri, Russell v. Vintage Pharmaceuticals, LLC, et al., because the plaintiff had no evidence that she received a defective package.

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