Court Declines to Approve Class Alleging Off-Label Marketing of Cancer Drug

3rd party payors (“TPPs”) accountable for having to pay the expense of prescriptions for his or her beneficiaries sued Cephalon, Corporation., alleging it involved in illegal off-label marketing of Actiq, a medication approved to handle breakthrough cancer discomfort in a few patients. Plaintiffs contended that Cephalon’s conduct caused plaintiffs to create excessive off-label prescription repayments for Actiq to deal with conditions not authorized by the Food and drug administration as well as for whom less costly discomfort management drugs were appropriate and fewer harmful. The Pennsylvania district court rejected to approve the category.

The court’s selection of law analysis and plaintiffs’ make an effort to satisfy Rule 23(b)(3) by grouping the 50 states and Washington D.C. according to their particular management of illegal enrichment have particular interest.

Choice of Law

A legal court presumed that putative class people will live in every condition, therefore it searched for to look for the laws and regulations of every condition on illegal enrichment. Plaintiffs contended that no material difference differentiates the states’ common law on illegal enrichment. Cephalon, however, recognized bases where states’ laws and regulations purportedly conflict, including variations in laws of restrictions and accrual rules.

Cephalon’s guilty plea revealed that it involved in off-label promotion of Actiq as soon as 2001. Therefore, the filing of the suit in October 2007 might happen to be inside a state’s statute of restrictions and also the court couldn’t state that use of different laws of restrictions would yield exactly the same result. Choice came to the conclusion that the true conflict is available.

The court then analyzed the relevant contacts: First, the crux of the parties’ relationship is in the TPPs’ home states because that is where Cephalon directed its sales efforts, where the drug was prescribed, and where TPPs conferred payments to Cephalon. Second, the state where Cephalon received the alleged benefit was Pennsylvania and, therefore, this factor favored application of Pennsylvania law. Third, the place where the acts resulting in enrichment occurred was the TPPs’ home states because payments for Actiq prescriptions originated there. Fourth, in considering the parties’ residence, the court found that this factor weighed slightly in favor of applying Pennsylvania law because it is likely that class members will reside in all U.S. jurisdictions and, therefore, no single state has a greater relationship to the case. Finally, the jurisdiction where a physical thing, substantially related to the enrichment, was situated at the time of the enrichment favors the TPPs’ home states because the Actiq lozenges purchased by beneficiaries were located in those states. In sum, three of the five factors weighed in favor of applying the laws of the TPPs’ various home states.

Policy factors also result in the same conclusion. Plaintiffs’ home states possess a regulating curiosity about supplying redress to the people for functions of wrongdoing as well as in making certain that companies performing business inside their edges do so fairly.  A legal court came to the conclusion these interests outweighed Pennsylvania’s curiosity about controlling a homeowner corporation.


A legal court noticed that versions within the law don’t conclusively foreclose class certification if grouping can be done. For this finish, plaintiffs provided a chart showing the way the 50 states and Washington, D.C. are arranged according to their management of illegal enrichment claims. A legal court said that plaintiffs’ notable grouping efforts still didn’t take into account individual fact issues so that common issues would predominate.

Since the polestar from the illegal enrichment inquiry is whether or not the defendant continues to be unjustly overflowing, resolution of the real question is, naturally, fact-sensitive. Plaintiffs had some common proof regarding equitable conditions. For instance, Cephalon’s marketing and distribution of Actiq was matched across the nation and therefore present with all class people.

Nonetheless, plaintiff’s class-wide showing of whether Cephalon’s enrichment was illegal was more difficult. Plaintiffs were not able to exhibit how showing Cephalon’s non-compliance using its risk management program, made to ensure proper utilisation of the drug, also proves that repayments for off-label prescriptions are illegal. Furthermore, if doctors might have written Actiq prescriptions even when Cephalon complied using the risk management plan, then payment for prescriptions past the set limit wouldn’t be illegal. Patients also performed a job, making their very own choices regarding coverage for Actiq prescriptions.

A legal court similarly discovered that the TPPs had a number of techniques through which they could manage prescription costs of Actiq and records and worker testimony demonstrated that TPPs treated claims for Actiq compensation in a different way through the suggested class period.

Ultimately, a legal court came to the conclusion that the inquiry into equitable conditions can’t be carried out by common proof since TPPs had different levels of control of prescription benefits as well as other cost-saving measures at hand.


A legal court said the biggest impediment to some finding of brilliance may be the impossibility of controlling a class action lawsuit where the laws and regulations of TPPs’ various home states apply and individual questions of fact predominate. A legal court also noted that TPPs had already introduced and lost individual suits against Cephalon alleging violations of RICO and condition claims including consumer fraud, misrepresentation, and illegal enrichment. It acknowledged that failure to approve a category could cause numerous individual suits, but discovered that a desire for justness in adjudicating individual issues outweighed the judicial burden of these suits. Choice came to the conclusion that plaintiffs didn’t establish that class action lawsuit treatment was superior.

In re Actiq Sales & Marketing Practices Litig., No. 07-4492, 2015 WL 1312015 (E.D. Pa. March 23, 2015).