IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 : 

In re: WELLBUTRIN SR : CIVIL ACTION NO. 04-5525 

ANTITRUST LITIGATION : 

PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL 

OF DIRECT PURCHASER CLASS SETTLEMENT

SAJ Distributors, Inc. and Stephen L. LaFrance Holdings, Inc. (together, “SAJ”) and 

Meijer, Inc. and Meijer Distribution, Inc. (together, “Meijer”) (collectively, “Plaintiffs”) move, 

on behalf of themselves and the certified class of direct purchasers (“the class”), for an order (1) 

preliminarily approving a settlement with Defendant SmithKline Beecham Corporation d/b/a 

GlaxoSmithKline; (2) approving the forms of notice and directing notice to the Class; (3) 

approving the proposed claim form and plan of distribution; (4) approving the escrow agent; (5) 

authorizing the previously appointed class administrator, Class Action Administration, Inc., to 

disseminate notice and receive and process class member claims; and (6) setting a schedule for 

completing the settlement approval process. 

The reasons in support of this motion are set forth in Plaintiffs’ accompanying 

memorandum of law. 

Dated: August 17, 2011 Respectfully submitted, 

/s/ Joseph F. Roda 

Joseph F. Roda 

/s/ Dianne M. Nast 

Dianne M. Nast 

Jennifer S. Snyder 

RODANAST, PC 

801 Estelle Drive 

Lancaster, Pennsylvania 17601 

(717) 892-3000 

Lead Counsel for Direct Purchaser 

Class Plaintiffs 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 1 of 21
2

Michael L. Roberts 

ROBERTS LAW FIRM, PA 

P.O. Box 241790 

20 Rahling Circle 

Little Rock, Arkansas 72223 

(501) 821-5575 

Arnold Levin 

Fredrick S. Longer 

LEVIN, FISHBEIN, SEDRAN & BERMAN 

510 Walnut Street, Suite 500 

Philadelphia, Pennsylvania 19106 

(215) 592-1500 

J. Douglas Richards 

COHEN MILSTEIN SELLERS & TOLL PLLC

88 Pine Street 

14th Floor 

New York, NY 10005 

(212) 838-7797 

Paul E. Slater 

SPERLING & SLATER, PC 

55 W. Monroe Street, Suite 3300 

Chicago, Illinois 60603 

(312) 641-3200 

Daniel E. Gustafson 

Karla M. Gluek 

GUSTAFSON GLUEK PLLC 

650 Northstar East, 

608 2nd Avenue S 

Minneapolis, MN 55402 

(612) 333-8844 

Linda P. Nussbaum 

Shelly Friedland 

John D. Radice 

GRANT & EISENHOFER P.A. 

485 Lexington Avenue 

New York, NY 10017 

(646) 722-8500 

Daniel Berger 

Eric L. Cramer 

BERGER & MONTAGUE, P.C. 

1622 Locust Street 

Philadelphia, Pennsylvania 19103 

(215) 875-3026 

Joseph M. Vanek 

VANEK, VICKERS, & MASINI P.C. 

111 S. Wacker, Suite 4050 

Chicago, Illinois 60606 

(312) 224-1500 

Co-Counsel for Direct Purchaser Class Plaintiffs 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 2 of 21
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

 : 

In re: WELLBUTRIN SR : CIVIL ACTION NO. 04-5525 

ANTITRUST LITIGATION : 

 

MEMORANDUM IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL 

OF DIRECT PURCHASER CLASS SETTLEMENT

INTRODUCTION

SAJ Distributors, Inc. and Stephen L. LaFrance Holdings, Inc. (together, “SAJ”) and 

Meijer, Inc. and Meijer Distribution, Inc. (together, “Meijer”) (collectively, “Plaintiffs”), submit 

this memorandum, on behalf of themselves and the certified class of direct purchasers (“the 

class”),1

 in support of their motion for preliminary approval of settlement under Federal Rule of 

Civil Procedure 23(e). 

This class action alleges that Defendant SmithKline Beecham Corporation d/b/a 

GlaxoSmithKline (“GSK”) unlawfully maintained monopoly power in the market for Wellbutrin 

SR, a brand-name prescription anti-depressant, in violation of Section 2 of the Sherman Act, 15 

U.S.C. § 2, causing Plaintiffs and the class to pay higher prices than they would have paid in a 

competitive market. After more than six-and-a-half years of hard-fought litigation, Plaintiffs and 

GSK have reached a settlement, which is memorialized in the Settlement Agreement attached as 

Exhibit 1 hereto. 

The settlement is intended to resolve all claims that have been or could have been 

asserted in this case, concerning the alleged suppression of generic competition for Wellbutrin 

 1

 See In Wellbutrin SR Antitrust Litig., Memorandum and Order (Doc. 258) (E.D. Pa. 

May 2, 2008) certifying the following Class: “all persons or entities in the United States, 

excluding governmental entities, that purchased the 100 mg or 150 mg dosage of Wellbutrin SR 

directly from GSK during the period from January 24, 2002 to June 30, 2006.” 

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SR, for all direct purchasers of Wellbutrin SR and its generic equivalents during the period 

January 24, 2002 to June 30, 2006. 

The settlement provides a recovery of $49 million dollars in cash, and up to $500,000 in 

costs of notice to the class and administration of the settlement. 

The settlement is an excellent result for the class, given the risk and cost of continued 

litigation, trial, and potential appeals. Lead Counsel and co-counsel for the class fully support 

the settlement, having concluded that it is fair, reasonable, adequate and in the best interests of 

Plaintiffs and the class. 

Accordingly, Plaintiffs respectfully request that the Court grant preliminary approval of 

the proposed settlement; approve the forms of notice, plan for dissemination of notice, claim 

form and plan of distribution, and escrow agent; authorize the previously appointed class 

administrator, Class Action Administration, Inc. (“CAA”), to disseminate notice and receive and 

process class member claims; and set a schedule for the final approval process. 

BACKGROUND

I. Summary of the Wellbutrin SR Antitrust Litigation 

Wellbutrin SR is the brand name for a widely-prescribed anti-depressant manufactured 

and marketed by GSK. Plaintiffs filed this lawsuit in 2004 as a class action alleging that GSK 

violated Section 2 of the Sherman Act, 15 U.S.C. § 2, by unlawfully maintaining its monopoly 

over Wellbutrin SR and its generic equivalents. Specifically, Plaintiffs allege that GSK filed 

sham litigation to delay generic drug manufacturers from bringing less expensive, generic 

versions of Wellbutrin SR to market. As a result, Plaintiffs claim that they paid more for 

Wellbutrin SRthan they would have in the absence of the alleged anticompetitive conduct. GSK 

has denied these allegations and asserted a variety of defenses. 

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This case is approaching its seventh year of hard-fought litigation, and the parties reached 

their settlement on the verge of trial. During the nearly seven years of this litigation: 

• Plaintiffs successfully opposed GSK’s motion to dismiss and attempts to obtain 

interlocutory appeal of that decision; 

• Plaintiffs obtained certification of the class over GSK’s opposition; 

• the parties actively pursued formal and informal discovery, including GSK’s 

production of more than one million pages of documents, which Plaintiffs 

analyzed and prepared for future use in the litigation; 

• the parties collectively took and/or defended roughly thirty depositions 

throughout the country; 

• the parties sought and obtained discovery from the third-party manufacturers of 

generic versions of Wellbutrin SR; 

• the parties retained and consulted numerous experts to conduct preliminary 

evaluations, prepare reports in connection with class certification, and prepare 

initial and supplemental reports on liability and damages; 

• the parties briefed and argued numerous discovery motions on a variety of issues, 

including attorney-client privilege, motions for protective orders, and motions to 

compel; 

• GSK initially filed two motions for summary judgment, one of which Plaintiffs 

successfully opposed, and the other of which GSK won—and GSK then filed a 

renewed motion for reconsideration of its motion for summary judgment, which 

was argued and pending at the time of settlement; 

• the parties briefed more than twenty pre-trial motions, including motions in 

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4

limine, Daubert motions, and a motion to bifurcate the trial, many of which were 

argued to and decided by the Court; and 

• the parties prepared and exchanged pretrial materials—including witness and 

exhibit lists, proposed stipulations, and deposition designations and counterdesignations—and filed pretrial memoranda, proposed jury instructions, and 

verdict slips with the Court. 

II. Summary of the Class Action Settlement 

After the Court issued its January 4, 2011 order scheduling this case for trial, and with the 

Court’s encouragement, the parties pursued the prospect of settlement through a private, daylong mediation session held on April 1, 2011. The parties were unsuccessful in reaching a 

resolution at that time and therefore continued their simultaneous preparation for trial, which was 

then set to begin on June 27, 2011. 

After a hearing before the Court on May 25, 2011, during which the parties argued 

GSK’s renewed motion for reconsideration of its motion for summary judgment and various pretrial motions, the parties agreed at the Court’s request to return to private mediation. That 

second session, before the same mediator as the first, was then held on June 7, 2011, and during 

it the parties succeeded in reaching their settlement. The settlement was memorialized that day 

in an Agreement in Principle, and then in the Settlement Agreement attached hereto as Exhibit 1, 

which was executed on August 3, 2011. 

The Agreement provides for: 

• a national, class-wide settlement; 

• the payment by GSK of $49 million in cash (less taxes, as well as attorneys’ fees 

and costs and class representative payments that this Court may award) to class 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 6 of 21
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members who file timely claim forms; 

• the additional payment by GSK of up to $500,000 towards the cost of notice to 

the class and administration of the settlement; and 

• both individual written notice to each class member by first class mail and 

publication of summary notice in an industry journal, as well as notice posted on 

the internet. 

In light of the risk and cost of trial and appeal that the case presented, the settlement is an 

excellent result that provides real benefit to the class. 

ARGUMENT

I. Preliminary Approval of the Settlement is Appropriate. 

 

Federal courts favor class action settlements. Ehrheart v. Verizon Wireless, 609 F.3d 

590, 594-95 (3d Cir. 2010) (recognizing the “strong presumption in favor of voluntary settlement 

agreements” and noting that it is “especially strong” in the context of class action cases). 

Approval of a class action settlement is a two-step process, the first involving 

preliminary approval of the settlement and its related processes (such as notice, the claim form, 

and the schedule for a final fairness hearing), and the second being final approval of the 

settlement after a fairness hearing. See Gates v. Rohm & Haas Co., 248 F.R.D. 434, 438 (E.D. 

Pa. 2008); Curiale v. Lenox Group, Inc., Civ. A. 07-1432, 2008 WL 4899474, at *4 (E.D. Pa. 

Nov. 14, 2008). These preliminary and final procedures are summarized in the Manual for 

Complex Litigation, Fourth (2004) § 21.6 (“Manual”), the Federal Judicial Center publication 

designed to aid federal judges in the management of complex litigation. 

 A class action settlement warrants final approval if it is “fair, reasonable and adequate.” 

Fed. R. Civ. P. 23(e)(2). At the preliminary approval stage, however, a court does not have to 

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reach a final conclusion as to the fairness of the settlement. It only has to make a preliminary 

evaluation as to whether the proposed settlement is within the range of possible approval and 

free of obvious deficiencies or reasons to doubt its fairness. Mehling v. New York Life Ins. Co., 

246 F.R.D. 467, 472 (E.D. Pa. 2007); Curiale, 2008 WL 4899474, at *4; In re Auto. Refinishing 

Paint Antitrust Litig., MDL No. 1426, 2004 WL 1068807, at *2 (E.D. Pa. May 11, 2004); 

Thomas v. NCO Fin. Sys., Inc., Civ. A. 00-5118, 2002 WL 1773035, at *5 (E.D. Pa. July 31, 

2002). If a settlement falls within the range of possible approval, preliminary approval should be 

granted, and notice given to class members to allow them the opportunity to learn about and 

comment on the proposed settlement. Samuel v. Equicredit Corp., No. Civ. A. 00-6196, 2002 

WL 970396, at *1 n.1 (E.D. Pa. May 6, 2002). 

 In considering whether to give preliminary approval, the appropriate considerations 

include those of fairness and whether: (1) the settlement negotiations occurred at arm’s length, 

(2) there was sufficient discovery, and (3) the proponents of the settlement are experienced in 

similar litigation. Gates, 248 F.R.D. at 439; In re Linerboard Antitrust Litig., 292 F. Supp. 2d 

631, 638 (E.D. Pa. 2003); Curiale, 2008 WL 4899474, at *9.2

The settlement proposed in this case meets these and all related factors. 

A. The proposed settlement and plan of distribution satisfy a preliminary 

evaluation of reasonableness. 

 At the final approval stage, a multi-factor test (established in the seminal case of Girsh v. 

 2

 These same cases also provide that where only a small fraction of the class has 

objected, this is an additional factor warranting preliminary approval. Gates, 248 F.R.D. at 439; 

Linerboard, 292 F. Supp. 2d at 638; Curiale, 2008 WL 4899474, at *9. While no objections 

have been received to date, the deadline for submitting objections is generally established upon 

preliminary approval, after notice of the settlement has been provided, consistent with the 

schedule that Plaintiffs propose here. Under these circumstances, the appropriate time for 

considering objections (if any) would be at the final approval stage, after the deadline for 

submitting objections has passed. 

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Jepson, 521 F.2d 153, 157 (3d Cir. 1975)) applies to determine whether a settlement ultimately 

should be approved. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 258 (3d Cir. 2009). 

At the present stage, however, “the Court need not address these factors, as the standard for 

preliminary approval is far less demanding.” Gates, 248 F.R.D. at 448 n.7. Preliminary 

approval is not a binding commitment to final approval, but merely a determination that the 

settlement has no obvious shortcomings and generally appears to be reasonable. Id. at 438. 

 Here, the proposed settlement has no such shortcomings and appears reasonable. It 

provides a cash payment of $49 million for distribution to class members, less taxes, courtapproved fees and expenses, and any court-approved payments to the two plaintiff class 

representatives (SAJ and Meijer) for prosecuting the litigation on behalf of the class. In addition, 

GSK has agreed to pay, subject to Court approval, up to $500,000 for costs of notice and 

administration. 

 Plaintiffs intend to file a motion for an award of attorneys’ fees not to exceed one-third of 

the settlement fund and reimbursement of expenses. Plaintiffs will also request the Court to 

approve payments of $25,000 each to SAJ and Meijer for their efforts in prosecuting this 

litigation on behalf of the class. See Cullen v. Whitman Med. Corp., 197 F.R.D. 136, 145 (E.D. 

Pa. 2000) (“Courts routinely approve incentive awards to compensate named plaintiffs for the 

services they provided and the risks they incurred during the course of the class action 

litigation.”) (citations, internal quotations omitted). 

 The Net Settlement Fund3 will be distributed to class members based on their purchases 

of Wellbutrin SR during the class period, and thus does not grant preferential treatment to any 

 3

 As defined in the Settlement Agreement, the Net Settlement Fund is the amount 

remaining in the settlement fund for distribution for approved claims after reduction for payment 

of taxes, attorneys’ fees, any payments to the class representatives and disbursements for such 

costs and expenses as approved by the Court. 

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class member. 

 Overall, the settlement represents an excellent result for the class. 

B. The settlement is the result of arm’s-length negotiations. 

Whether a settlement arises from arm’s-length negotiations is often the central focus of 

the analysis on a motion for preliminary approval. Mehling, 246 F.R.D. at 472; Curiale, 2008 

WL 4899474, at *4. An examination of the circumstances surrounding the present settlement 

confirms that the negotiations here support preliminary approval. 

 This litigation has been hard-fought from the start, and even while the parties pursued 

mediation and settlement, they were each simultaneously preparing for trial. The proposed 

settlement is the result of non-collusive, good faith efforts between adversaries to resolve the 

case before trial and ensuing appeals, and was reached only after robust negotiations encouraged 

by this Court and guided by an independent and skilled mediator. 

 This factor thus supports preliminary approval. See Gates, 248 F.R.D. at 444 (granting 

preliminary approval to a settlement following two days of mediation where there was “nothing 

to indicate that the proposed settlement . . . [was] not the result of good faith, arms-length 

negotiations between adversaries,” and the Court had no reason to doubt that the settlement 

involved the same “vigorous and independent lawyering” that characterized the nearly two years 

of litigation preceding settlement); see also In re Greenwich Pharm. Sec. Litig., Civ. A. 92-3071, 

1995 WL 251293, at *2 (E.D. Pa. Apr. 26, 1995) (“Because this class was certified before 

settlement negotiations began, the proposed settlement enjoys a presumption that it is the product 

of arm’s-length negotiations conducted by capable counsel.”). 

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 C. The settlement in this case was reached only after almost seven years of 

discovery and other proceedings, which further supports preliminary 

approval. 

 This litigation was fought hard by both sides for more than six-and-a-half years, and was 

on the verge of trial when a settlement was ultimately reached. Before settlement, the parties: 

• actively pursued discovery, including vast document discovery and dozens of 

depositions; 

• retained and consulted experts, who conducted preliminary evaluations and 

prepared reports at class certification, as well as on liability and damages; 

• briefed dozens of motions, including motions to dismiss, for class certification, 

for discovery rulings, for summary judgment, and for various pretrial rulings; and 

• prepared the case for trial, including the exchange of pretrial materials and the 

filing of pretrial memoranda, proposed jury instructions, and verdict slips. 

Courts have granted preliminary approval of settlements that have occurred at much 

earlier stages. See, e.g., Gates, 248 F.R.D. at 444 (granting preliminary approval of settlement 

reached before discovery on the merits); Thomas, 2002 WL 1773035, at *5 (granting preliminary 

approval of settlement where there was “no reference to any formal discovery”). The advanced 

stage of this litigation thus also supports preliminary approval of the settlement. See Lazy Oil 

Co. v. Witco Corp., 166 F.3d 581, 588 (3d Cir. 1999) (finding that post-discovery settlements are 

more likely to reflect the true value of the case and be fair). 

D. The parties are experienced in similar litigation. 

The negotiations were conducted for Plaintiffs by counsel with extensive experience in 

litigating antitrust lawsuits, class actions, and other complex cases. Lead counsel and co-counsel 

for the class know how to pursue a case of this type and, after almost seven years of litigation, 

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were intimately familiar with the strengths and weaknesses of this case in particular. The 

extensive experience of class counsel in litigating similar cases, while not dispositive, suggests a 

fair settlement. Fisher Bros. v. Phelps Dodge Indus., Inc., 604 F. Supp. 446, 452 (E.D. Pa. 1985) 

(“[T]he professional judgment of counsel involved in the litigation is entitled to significant 

weight.”). 

Counsel for the class firmly believe that the proposed settlement is fair, reasonable, and 

adequate, and should be approved. Courts in other cases have found it appropriate to consider 

strongly the recommendations of experienced counsel who have negotiated arm’s-length 

settlements. See, e.g., Lake v. First Nationwide Bank, 156 F.R.D. 615, 628 (E.D. Pa. 1994) 

(giving “due regard to the recommendations of the experienced counsel . . . who have negotiated 

this settlement at arms-length and in good faith”); Hanrahan v. Britt, 174 F.R.D. 356, 366 (E.D. 

Pa. 1997) (“A presumption of correctness is said to attach to a class settlement reached in armslength negotiations between experienced, capable counsel after meaningful discovery.”) 

(citation, internal quotation omitted). 

II. The Proposed Form and Manner of Notice and Schedule are Reasonable. 

 Under Rule 23(e), class members are entitled to reasonable notice of a proposed 

settlement before it is finally approved by the Court, as well as of the final fairness hearing and 

the opportunity to present their views. Manual §§ 21.312, 21.633. “[T]he Rule 23(e) 

requirement is designed to summarize the litigation and the settlement and to apprise class 

members of the right and opportunity to inspect the complete settlement documents, papers, and 

pleadings filed in the litigation.” Gates, 248 F.R.D. at 445 (citations, internal quotation marks 

omitted). 

 “[T]o satisfy due process, notice to class members must be reasonably calculated under 

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all the circumstances, to apprise interested parties of the pendency of the action and afford them 

an opportunity to present their objections.” In re Ikon Office Solutions, Inc., Sec. Litig., 194 

F.R.D. 166, 174 (E.D. Pa. 2000) (citations, internal quotations omitted). 

 Generally, settlement notices should be provided to the class in the same manner as class 

certification notices,4

 including the requirement that individual notice be provided where 

practicable. Manual, § 21.312; In re Corel Corp. Inc. Sec. Litig., 293 F. Supp. 2d 484, 491 (E.D. 

Pa. 2003) (“The due process requirements of Federal Rule of Civil Procedure 23 demand that, 

prior to final approval of a class action settlement, class members be given the best notice 

practicable under the circumstances, including individual notice to all members who can be 

identified through reasonable efforts.”); Ikon Office Solutions, 194 F.R.D. at 175 (“In 23(b)(3) 

actions, class members must receive the best notice practicable under the circumstances, 

including individual notice to all . . . [class members] who can be identified through reasonable 

effort.”) (citations, internal quotations omitted); Thomas, 2002 WL 1773035, at *7 (“The 

requirement that individual notice be sent to all class members whose names and addresses may 

be ascertained with reasonable effort is mandatory.”). 

 The notice provided under the settlement meets all such requirements. 

A. Plaintiffs propose providing three forms of notice. 

The proposed order provides for three forms of notice designed to reach class members. 

First, and most importantly, notice will be sent individually to all class members by first class 

mail. See Exhibit 2. Because notice of class certification was previously provided to the class, 

Plaintiffs already have class members’ names and addresses and do not anticipate any problems 

in reaching them directly by mail. This satisfies the mandate of the Manual and case law 

 4

 Class members were previously notified, consistent with the requirements of Fed. R. 

Civ. P. 23(c)(2)(B), of the Court’s order certifying the class. 

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referenced above that individual notice be provided whenever possible. 

In addition, a summary notice will be published at two different times in the Pink Sheet, a 

pharmaceutical industry trade publication of wide circulation. See Exhibit 3. 

 Finally, notice will be posted online (at www.WellbutrinDirectPurchaserSettlement.com). 

Absent class members therefore will receive adequate notice of the settlement. See In re 

Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 527 (D.N.J. 1997), aff'd, 148 

F.3d 283, 311 (3d Cir. 1998) (notice is sufficient where it informs class members of the nature of 

the litigation, the general terms of the settlement, where complete information can be located, the 

time and place of the final fairness hearing, and the opportunity for objectors to be heard); see 

also Nichols v. SmithKline Beecham Corp., Civ. A. 00-6222, 2005 WL 950616, at *9 (E.D. Pa. 

Apr. 22, 2005) (same as Prudential). 

The Third Circuit has routinely approved similar means of disseminating notice. See, 

e.g., In re Prudential, 148 F.3d at 328 (holding that the parties had fully satisfied the notice 

requirements of Rule 23 where both individual and publication notice were provided); Zimmer 

Paper Prods., Inc. v. Berger & Montague, P.C., 758 F.2d 86, 90 (3d Cir. 1985) (“It is well 

settled that in the usual situation first-class mail and publication in the press fully satisfy the 

notice requirements of both Fed. R. Civ. P. 23 and the due process clause.”).5

 

B. The proposed notice plan assures that class members will receive adequate 

notice of the settlement. 

The proposed notice plan meets all legal requirements, and the notice itself provides a 

 5

 Recently, some courts presiding over direct purchaser pharmaceutical antitrust class 

actions have ordered notice to be disseminated to the class by first class mail only, without 

publication. See, e.g., Louisiana Wholesale Drug Co., Inc. v. Sanofi-Aventis US LLC, No. 07-

7343, at 7 (S.D.N.Y. Apr. 24, 2008) (attached as Exhibit 4); In re Terazosin Hydrochloride 

Antitrust Litig., No. 99-md-1317, at 3 (S.D. Fla. Feb. 25, 2005) (attached as Exhibit 5). 

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comprehensive explanation of the settlement in layperson’s terms. The proposed notice 

materials are based on samples promulgated by the Federal Judicial Center.6 They explain the 

case in “clear, concise, easily understood language,”7 and fairly apprise class members of the 

settlement’s terms and their options in connection with the proceedings, including the 

opportunity to attend and participate in the final fairness hearing. The materials are also neutral 

and convey no opinion of the Court about the settlement. 

C. It would be appropriate to approve the claim form, plan of distribution, and 

escrow agent and authorize the class administrator to disseminate notice of 

the settlement and receive and process class member claims. 

GSK has agreed to make a payment of $49 million into an escrow account within 30 

calendar days of GSK’s receipt of the Court’s order preliminarily approving the settlement. An 

escrow account has been established with Citizens Bank, which has experience managing similar 

accounts resulting from class action settlements and was selected by Lead Counsel with GSK’s 

consent, and which Plaintiffs request that the Court approve as the escrow agent. That $49 

million payment constitutes the Settlement Fund, from which any taxes, court-awarded counsel 

fees, expenses, and payments to the two class representatives will be deducted, with the 

remaining amount constituting the Net Settlement Fund for distribution to the class. 

GSK has also agreed to pay up to $500,000 towards the costs of notice and settlement 

administration, with payments to be made in accordance with approval from the Court. 

Attached as Exhibit 6 is a claim form, which Plaintiffs propose each class member 

seeking to participate in the settlement should be required to complete and submit to the claims 

 6

 See www.fjc.gov. 

7

 See Judges’ Class Action Notice and Claims Process Checklist and Plain Language 

Guide, at 5 (Federal Judicial Center 2010), available at: 

http://www.fjc.gov/public/pdf.nsf/lookup/NotCheck.pdf/$file/NotCheck.pdf. 

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administrator, at the address specified in the class notice, postmarked no later than the deadline 

set forth on the claim form. 

Plaintiffs request that the Court authorize CAA, which was previously appointed by the 

Court as class administrator, to disseminate notice of the settlement and receive and process class 

member claims, subject to the supervision of counsel for the class. In addition to its earlier 

appointment in the present case, CAA has experience in many other class actions, including 

other similar antitrust cases. See, e.g., Stop & Shop Supermarket Co. v. SmithKline Beecham 

Corp., Civ.A. 03-4578 (E.D. Pa.) (a pharmaceutical antitrust class action involving the 

prescription anti-depressant Paxil over which the Honorable John R. Padova presided); RyanHouse v. GlaxoSmithKline plc, C.A. 2:02cv442 (E.D.Va.) (a pharmaceutical antitrust class action 

involving the prescription medication Augmentin).8

 

All claims recommendations will be submitted to the Court for its approval. Once a 

determination has been made as to which claimants are eligible to participate in the settlement, 

the Net Settlement Fund will be divided pro rata among all class members whose claims are 

approved, based on their purchases of Wellbutrin SR. 

D. The proposed schedule is reasonable. 

 Preliminary approval includes setting the deadlines for providing notice to the class, 

objecting to the settlement, submitting papers related to final approval and an award of attorneys’ 

fees and costs, and submitting claims, as well as the date for the final fairness hearing. That 

hearing will provide a forum for proponents and opponents (if any) of the settlement to address 

its terms, including its fairness, adequacy, and reasonableness, as well as the motion for 

attorneys’ fees and costs. 

 8

 Additional information about CAA may be found on the firm’s website, 

http://www.classactionadmin.com. 

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 Plaintiffs propose, and seek the Court’s approval of, the following schedule for these 

events: 

Event Timing 

1 Motion for preliminary approval filed August 17, 2011 

2 Notice and claim form to be mailed and posted 

on WellbutrinDirectPurchaserSettlement.com 

On or about 21 calendar days after entry 

of an order granting preliminary approval 

4 Summary notice to be published on two 

occasions in the Pink Sheet

Approximately 28 and 35 calendar days 

after entry of an order granting 

preliminary approval 

5 Deadline for filing motions for final approval 

and for attorneys’ fees and reimbursement of 

expenses 

45 calendar days after entry of an order 

granting preliminary approval 

6 Postmark deadline for objections and notices of 

intent to appear at final fairness hearing 

65 calendar days after entry of an order 

granting preliminary approval 

7 Deadline for responding to any objections 80 calendar days after entry of an order 

granting preliminary approval 

8 Final fairness hearing ________________, 2011, at __:__ _.m., 

(on or about 90 calendar days from the 

entry of the preliminary approval order) 

9 Postmark deadline for filing claims 120 calendar days after order granting 

preliminary approval 

 Because class members already have been given the opportunity to opt out of the class, 

there is no need for an additional opt-out period, and none therefore has been included in the 

schedule proposed above. See Auto. Refinishing Paint, 2004 WL 1068807, at *3 (holding, in an 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 17 of 21
16

antitrust case, that a second opt-out period was unnecessary where class members had already 

been given the opportunity to opt out prior to approval of the settlement). 

 The decision to provide a second opt-out period is discretionary. See id.; Fed. R. Civ. P. 

23(e)(4); Advisory Committee Notes to 2003 Amendments to Rule 23(e)(3) (which is now Rule 

23(e)(4)); Pierce v. Novastar Mortgage, Inc., C05-5835RJB, 2007 WL 1847216, at *3 (W.D. 

Wash. June 27, 2007). Courts are not required to provide one. Denney v. Deutsche Bank AG, 

443 F.3d 253, 271 (2d Cir. 2006) (holding that the district court did not abuse its discretion in not 

providing a second opt-out period); In re MetLife Demutualization Litig., 689 F. Supp. 2d 297, 

345 (E.D.N.Y. 2010) (“It is not necessary to provide the class members with an opportunity to 

opt out of the Settlement.”); In re Lloyd's Am. Trust Fund Litig., 96 CIV.1262 RWS, 2002 WL 

31663577, at *12 (S.D.N.Y. Nov. 26, 2002) (observing that “due process does not afford Class 

Members a second opportunity to opt out” and noting, in that case, that “the integrity of the Class 

as constituted was an essential element to the Settlement.”). See also Exhibit 7, In re OSB 

Antitrust Litig., No. 06-826 (E.D. Pa. Aug. 7, 2008); Exhibit 8, In re Tricor Direct Purchaser 

Antitrust Litig., No. 05-340 (D. Del. Jan. 8, 2009); Exhibit 9, In re MCC Antitrust Litig., No. 01-

0111 (E.D. Pa. Sept. 7, 2006); Exhibit 10, Meijer, Inc. v. Abbott Labs., No. C07-5985CW (N.D. 

Cal. Apr. 20, 2011); Exhibit 11, Meijer, Inc. v. Barr Pharms., Inc., No. 05-2195 (D.D.C. Dec. 

18, 2006); Exhibit 12 In re Carbon Black Antitrust Litig, No. 03-10191 (D. Mass. Nov. 29, 

2006).9

 

 Here, a deadline was set in connection with the initial opt-out period, and no class 

member chose to opt out. This is significant, because most—if not all—class members are 

 9

 Accord Officers for Justice v. Civil Serv. Comm'n of City & County of San Francisco, 

688 F.2d 615, 635 (9th Cir. 1982); Hainey v. Parrott, 617 F. Supp. 2d 668, 679 (S.D. Ohio 

2007). 

 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 18 of 21
17

sophisticated businesses, such as wholesalers, distributors, and retailers of pharmaceutical 

products. 

CONCLUSION

Plaintiffs respectfully request that the Court grant preliminary approval of this proposed 

settlement. The settlement falls well within the range of possible approval, there are no grounds 

to doubt its fairness, and it was negotiated at arm’s length by experienced counsel who support it. 

The form of notice, plan for dissemination of notice to the class, claim form, proposed plan of 

distribution, and escrow agent each warrant approval, and it would be appropriate to authorize 

the Court-appointed class administrator, CAA, to disseminate notice and receive and process 

class member claims. Finally, it would be appropriate to establish a schedule for completing the 

settlement approval process, including the final fairness hearing. 

Dated: August 17, 2011 Respectfully submitted, 

/s/ Joseph F. Roda 

Joseph F. Roda 

/s/ Dianne M. Nast 

Dianne M. Nast 

Jennifer S. Snyder 

RODANAST, PC 

801 Estelle Drive 

Lancaster, Pennsylvania 17601 

(717) 892-3000 

Lead Counsel for Direct Purchaser 

Class Plaintiffs 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 19 of 21
18

Michael L. Roberts 

ROBERTS LAW FIRM, PA 

P.O. Box 241790 

20 Rahling Circle 

Little Rock, Arkansas 72223 

(501) 821-5575 

Arnold Levin 

Fredrick S. Longer 

LEVIN, FISHBEIN, SEDRAN & BERMAN 

510 Walnut Street, Suite 500 

Philadelphia, Pennsylvania 19106 

(215) 592-1500 

J. Douglas Richards 

COHEN MILSTEIN SELLERS & TOLL PLLC

88 Pine Street 

14th Floor 

New York, NY 10005 

(212) 838-7797 

Paul E. Slater 

SPERLING & SLATER, PC 

55 W. Monroe Street, Suite 3300 

Chicago, Illinois 60603 

(312) 641-3200 

Daniel E. Gustafson 

Karla M. Gluek 

GUSTAFSON GLUEK PLLC 

650 Northstar East, 

608 2nd Avenue S. 

Minneapolis, MN 55402 

(612) 333-8844 

Linda P. Nussbaum 

Shelly Friedland 

John D. Radice 

GRANT & EISENHOFER P.A. 

485 Lexington Avenue 

New York, NY 10017 

(646) 722-8500 

Daniel Berger 

Eric L. Cramer 

BERGER & MONTAGUE, P.C. 

1622 Locust Street 

Philadelphia, Pennsylvania 19103 

(215) 875-3026 

Joseph M. Vanek 

VANEK, VICKERS, & MASINI P.C. 

111 S. Wacker, Suite 4050 

Chicago, Illinois 60606 

(312) 224-1500 

Co-Counsel for Direct Purchaser Class Plaintiffs 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 20 of 21
CERTIFICATE OF SERVICE

 I hereby certify that the foregoing Motion for Preliminary Approval of Direct Purchaser 

Class Settlement and supporting memorandum were served via ECF upon all counsel of record 

on this 17th day of August, 2011. 

 

 /s/ Joseph F. Roda 

 Joseph F. Roda 

 RODANAST, P.C. 

 801 Estelle Drive 

 Lancaster, Pennsylvania 17601 

 Telephone: (717) 892-3000 

 Facsimile: (717) 892-1200 

Case 2:04-cv-05525-LS Document 405 Filed 08/17/11 Page 21 of 21