A Davis Polk team led by partners Jim Rouhandeh, head of the firm’s Litigation Department, and Neal Potischman, head of the firm’s West Coast commercial litigation practice, received runner-up honors in AmLaw Litigation Daily’s “Litigator of the Week” column for securing denial of a class certification bid brought against Novo Nordisk. This closely watched lawsuit involved novel claims asserting that consumers paid “unconscionable” or “unfair” prices for insulin manufactured by the leading insulin manufacturers. The plaintiffs sought more than a billion dollars in damages, alleging that the manufacturers “inflated” list prices for insulin with rebates that were used to convince pharmacy benefit managers (PBMs) to include their products on the formularies that the PBMs create for insurers.  

Plaintiffs sought certification under New Jersey law of a nationwide class of consumers. In the alternative, they sought certification of a multi-state class, and of several individual state classes.

In a 120-page opinion, U.S. District Judge Brian Martinotti of the District of New Jersey rejected all of the proposed classes. The decision is likely to become a landmark opinion in pharmaceutical pricing litigation for years to come.

The judge found that the plaintiffs couldn’t show an ascertainable loss and that individual questions predominated – including whether individual plaintiffs were insured, the terms of any insurance coverage and whether they benefited from any of the rebates passed down through pharmacy benefit managers or insurers.

The Davis Polk team representing Novo Nordisk also included counsel Andrew Yaphe, David Toscano and Cristina Rincon and associates Elaine Andersen, Chui-Lai Cheung, Tiffany Chung-Arzeno, Andrei Gribakov Jaffe, Michael Haney, Ian Hogg, Jennifer Kim, Natalie Stoecklein and Keon Zemoudeh.

The column also recognized Davis Polk for its role representing a defendant in a proposed class action claiming that a group of banks conspired in violation of the antitrust laws to rig auctions in the multi-trillion-dollar market for United States Treasury securities and boycotted trading platforms that offered so-called “all-to-all trading.” The Second Circuit affirmed the district court’s judgment, dismissing the amended complaint with prejudice. 

Litigator of the Week Runners-Up And Shout Outs,” AmLaw Litigation Daily, (February 9, 2024) (subscription required)