EXHIBIT A

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

SHEET METAL WORKERS LOCAL 441 

HEALTH & WELFARE PLAN, et al.,

Plaintiffs,

v.

GLAXOSMITHKLINE, PLC, et al.,

Defendants

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Civil Action No. 04-cv-5898

Judge Lawrence F. Stengel

END PAYOR PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR ENTRY OF

SCHEDULING ORDER FOR RENEWED CLASS CERTIFICATION PROCEEDING

I. INTRODUCTION

In July 2009, this Court was put in the unenviable position of inheriting a motion for 

judgment on the pleadings, two summary judgment motions, and a motion for class certification 

that had been briefed and argued in front of another judge. The Court grappled with the record, 

briefing, and arguments before Judge Kauffman and issued an order denying class certification 

(without prejudice). See Opinion on Class Certification, Docket No. 289, September 30, 2010 

(“Order”). The Order raised, for the first time, questions about how the class definition might 

exclude uninjured consumers, and how End Payors could establish injury to direct purchasers. 

Although the prior district judge on this matter raised other issues which were addressed by the 

parties in formal submissions (e.g., exemplar states), the issue of how to carve out the arguably 

uninjured segment of consumer class members – a group who cumulative damages amounts to 

less than 1% of the total sought – was not. 

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On October 17, 2010, End Payors asked this Court to enter a scheduling order. See End 

Payor Plaintiffs’ Motion for Entry of Scheduling Order for Renewed Class Certification, Docket 

No. 293. End Payors motion identified issues raised in this Court’s class certification order, 

stated that a renewed class certification motion would provide methods for resolving the Court’s 

concerns, and asked the Court to impose various briefing deadlines.

On November 1, 2010, GSK ostensibly opposed End Payors scheduling motion – but 

failed to even comment on the proposed schedule. Instead, GSK responded with speculative, yet

substantive, attacks against positions End Payors may take in their renewed motion for class 

certification. GSK argues – before End Payors have even filed a renewed class certification 

motion – that the Court cannot revisit its class certification decision. But the Court has wide 

discretion to revisit its class certification order until entry of final judgment. Fed.R.Civ.P. 

23(c)(1)(C). In fact, if carving out the uninjured persons identified by the Court resolves the 

Court’s concerns, then the class (as modified) must be certified. See Shady Grove Orthopedic 

Associates, P.A. v. Allstate Insurance Co., 130 S.Ct. 1431, 14 38 (2010) (stating Rule 23 requires 

“a federal court to certify a class in each and every case where the Rule’s criteria are met.”). 

 Both parties should be given an opportunity to address the substantive issues related to 

renewed class certification proceedings in renewed class certification briefing. End Payors

therefore reiterate their request that the Court enter the proposed scheduling order – that is all 

that was requested at this time and in the first place. The renewed class motion will demonstrate 

that carving out claims of a segment of the class comprising less than 1% of the total damages is 

easily achieved. 

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II. ARGUMENT

A. Defendants Fail to Respond to the Relief Sought in End Payors’ Motion

End Payors’ October 17, 2010 motion sought entry of a scheduling order setting 

deadlines for renewed class certification proceedings.1 End Payors identified the issues raised in 

the Courts’ Order, briefly addressed how a renewed motion for certification could resolve these 

issues, and asked the Court to adopt a scheduling order governing further class certification 

proceedings. Defendants’ opposition ignores the relief sought and does not comment on the 

proposed schedule. 

Instead of opposing the relief requested, Defendants misconstrue the End Payors’ 

scheduling motion as the actual renewed class certification motion, and they argue that the Court 

could not possibly grant the (hypothetical) renewed motion. See Defendants’ Opposition to End 

Payor Plaintiffs’ Motion for Entry of Scheduling Order For Renewed Class Certification, Docket 

No. 295, November 1, 2010 at 4 (“Def. Mem.”) (arguing that End Payors' motion fails to correct 

the issues raised in the Court’s order: “Plaintiffs still do not provide any explanation whatsoever 

of how they would exclude from the class uninjured class members” and “[End Payors] present 

no new methodology to cure this basic problem,” Def. Mem. at 4). End Payors’ motion is not a 

renewed class certification motion, so, of course, does not itself resolve the issues raised by the 

Court. See Motion at 5 (“End Payors do not argue herein that the Court’s concerns are, or have 

been, resolved. Rather, End Payors identify the Court’s concerns, briefly explain that they can 

be resolved through a renewed motion for class certification and ask that the Court adopt the 

proposed scheduling order.”) 

 

1 On the next day, End Payors filed a corrected brief that modified a citation. See End Payor Plaintiffs’ Corrected 

Motion for Entry of Scheduling Order for Renewed Class Certification, Docket No.293, October 18, 2010.

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GSK’s arguments belong in an opposition to the End Payor’s as-yet-unfiled renewed 

motion for class certification. Not in an opposition to a scheduling motion.2

B. End Payors Asked For Entry of a Procedural Scheduling Order, Not a “Do Over”

End Payors seek entry of a scheduling order to govern renewed class certification 

proceedings. Rather than file a renewed motion for class certification with no timeline for 

response in place, End Payors asked the Court to approve a proposed schedule. End Payors’ 

motion briefly addresses how the Court’s concerns can be resolved through renewed class 

certification proceedings for purposes of supporting the time frames set forth in the proposed

scheduling order. 

A renewed motion for class certification would not amount to a “do over” or a “second 

bite at the apple.” Def. Mem. at 1, 7.

3

 GSK cites a series of cases that, for the most part, suggest 

that it is inappropriate to grant renewed class certification motions that merely restate the same 

facts and legal arguments made in the original class certification motion. See Def. Mem. at 7-8. 

End Payors do not disagree with this suggestion. But here, all of the issues raised in the Court’s 

order are new concerns that neither Judge Kauffman nor this Court raised previously.

4

In no 

instance are End Payors attempting to resolve issues they have already attempted to resolve. 

 

2 Elsewhere, Defendants treat End Payors’ motion as a motion seeking permission to file a renewed class 

certification motion. See Def. Mem. at 6 (asking the Court to “deny Plaintiffs’ motion for a renewed round of class 

certification proceedings.”). End Payors motion does not seek permission for leave to file a renewed class 

certification motion. No such permission is required. See Motion at 4-5. 

3 Class certification is not, as GSK would have the Court believe, a “one shot deal.” The Court always retains the 

ability to amend or alter a class certification decision at any point prior to final judgment; in this sense, the Court has 

discretion to consider numerous “do overs.” Fed.R.Civ.P. 23(c)(1)(C). GSK has pointed to no case law that 

precludes the Court from considering a renewed motion for class certification or prevents End Payors from filing 

such a renewed motion. End Payors recognize that repeatedly asking the Court to reconsider a class certification 

decision by simply advancing the same arguments time and again would be inappropriate and an abuse of a 

plaintiff’s prerogative to filed renewed class certification motions. But as described above, End Payors are 

addressing these issues for the first time and are not seeking a “second bite at the apple.” 

4 The only issue regarding class certification raised by Judge Kauffman was that of exemplar states. The parties 

submitted briefs on the topic.

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1. The Method to Carve Out Brand Loyalist Consumers Was Not Previously 

Addressed And Can Be Easily Implemented

The Court’s order identified, for the first time, a concern that the proposed class included 

consumers who were brand loyalists and, the Court reasoned, were thus uninjured. Neither 

Judge Kauffman nor this Court had previously asked Plaintiffs to address this issue. Judge 

Kauffman raised the issue of whether brand loyalists should be included in the class. End Payors 

argued that brand loyalists should be in the class, but informed the Court that, should the Court 

determine otherwise, brand loyalist consumers could be easily carved out of the class. July 31, 

2008 Hearing Tr. at 26. Judge Kauffman never asked, and End Payors never proposed, a 

method for carving out brand loyalist consumers.

End Payors will not seek brand loyalist damages in their renewed class certification 

motion. Brand loyalist consumers can be easily carved out of the class. First, bifurcating the 

class into TPP and Consumer subclasses immediately resolves the brand loyalist issue for all 

TPPs. Second, as to consumers, the renewed class certification motion will identify tools that 

can be used to carve out brand loyalist consumers from the class. Carving out the small number 

of brand loyalist consumers provides a remedy for the vast majority of consumers.

GSK argues that Professor Rosenthal “could not identify these uninjured class members.” 

Def. Mem. at 2. GSK mischaracterizes Rosenthal’s testimony. Rosenthal testified that it would 

not be possible for her methodology to identify each and every brand loyalist by name; that is, 

Rosenthal acknowledged that she could not say that Sally Jones of Boston, Massachusetts was a 

brand loyalist. Rosenthal never opined that brand loyalists could not be carved out of the class; 

in fact, Rosenthal provided separate damages information for brand loyalists so that they could 

be carved out, identifying, by quarter, the amount of damages associated with purchases by

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brand loyalists ($3.3 million total during the class period). See July 18, 2008 Declaration of 

Meredith Rosenthal, Attachments D.4-D.5.

2. The Method To Carve Out Flat Co-Pays Was Not Previously Addressed And 

Can Be Easily Implemented

The Court’s order similarly raised, for the first time, concern that the proposed class 

included consumers who had flat co-pays and, the Court reasoned, were thus uninjured. Neither 

Judge Kauffman nor this Court had previously raised this issue.

End Payors will not seek flat co-pay damages in their renewed class certification motion. 

Consumers with flat co-pays can also be easily carved out of the class. First, as with brand 

loyalists, bifurcating the class into TPP and Consumer subclasses resolves the issue for TPPs. 

Second, as to consumers, the renewed class certification motion will identify a method for 

carving out consumers with flat co-pays. The percentage of consumers with private health 

insurance who pay flat co-pays constitutes a very small percentage of insured individuals. 

Carving out the small number of flat co-pay consumers allows the remaining consumers to 

recover. 

3. The Injury to Direct Purchasers Issue Was Not Previously Addressed And 

Can Be Easily Resolved

The Court’s order also raised, for the first time, concern that End Payors had not shown 

common impact to direct purchasers. Judge Kauffman had certified a class of direct purchasers 

at the time that End Payors argued their class certification motion, so there was no question, 

then, about injury to direct purchasers. Motion at 2, 6-7. Now, for the first time, this Court has 

asked End Payors to more fully address the injury to direct purchasers. Order at 51. End Payors 

identified some of the features of the pharmaceutical industry that support showing injury 

through common proof in their motion (see Motion at 6-10) and will fully address the matter in 

their renewed class certification motion.

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III. CONCLUSION

Defendants prevailing argument is that End Payors have not corrected the defects 

identified by the Court; End Payors will, in their forthcoming renewed motion for class 

certification. The merits of that renewed motion should be assessed at that time, after GSK has 

had a full and fair opportunity to respond to the End Payors arguments. End Payor Plaintiffs 

therefore ask the Court to enter their Proposed Scheduling Order for Renewed Class Certification 

Proceedings. 

Dated: November 11, 2010

Respectfully submitted,

By: /s/ Joseph H. Meltzer

Joseph H. Meltzer

Terence S. Ziegler

Casandra A. Murphy

Barroway Topaz Kessler 

 Meltzer & Check, LLP

280 King of Prussia Road

Radnor, PA 19087

(610) 667-7706

Thomas M. Sobol

Edward Notargiacomo

Debra Gaw Josephson

Hagens Berman Sobol Shapiro LLP

55 Cambridge Parkway, Suite 301

Cambridge, MA 02142

(617) 482-3700

Co-Lead Counsel for Plaintiffs

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