More later, but we’ve just learned that the Second Circuit reversed the certification of a class in the Zyprexa litigation. Here’s the opinion.
The grounds for reversal are: (1) whether or not there are RICO cases that don’t require reliance, this one does. Slip op. at 24. (2) the plaintiff’s excess price theory is not susceptible to generalized proof, either on proximate or but for causation. Id. (3) Doctors don’t generally worry about price when they prescribe, so there’s no but for causation. Id. at 26. (4) The plaintiffs didn’t rely on the alleged misinformation, only the prescribers, so there’s no proximate cause. Id. at 27. (5) Plaintiff’s quantity theory of injury (assuming it wasn’t waived) fails to support a class because the prescribers have many and varying sources of information, and might react in many and varying ways. Id. at 30-31.
The Second Circuit also vacated denial of summary judgment on the merits and directed that the defendant’s motion be reconsidered. Id. at 32.
We’ll have a full story next week when we’ve had time to think more about what this decision means.