United States District Court, N.D. California
(1) GRANTING AMENDED MOTION TO SUBSTITUTE CLASS
REPRESENTATIVES AND FOR CERTIFICATION OF NEW YORK AND ARIZONA
CLASSES, AND (2) GRANTING IN PART AND DENYING IN PART MOTION
FOR APPROVAL OF NOTICE PROVIDER AND CLASS NOTICE PROGRAM RE:
DKT. NOS. 376, 377, 386-2
GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE
bring this putative class action against defendants alleging
that they knowingly overcharged millions of insured patients
by submitting falsely inflated drug prices to pharmacy
benefit managers (“PBMs”) and third-party payor
insurance providers (“TPPs”), which resulted in
higher copayment obligations for plaintiffs. Specifically,
plaintiffs raise claims under the laws of eleven states: (i)
each state's statutory laws proscribing unfair and
deceptive acts and practices (“UDAP”); and common
law claims for (ii) fraud, (iii) negligent misrepresentation,
and (iv) unjust enrichment.
before the Court are the following motions: First, plaintiffs
move to substitute class representatives and for
certification of New York and Arizona classes based on these
two substituted class representatives. Second,
plaintiffs move for approval of the notice provider, Angeion
Group LLC, and for approval of the class notice program.
carefully reviewed the pleadings, the papers submitted on
each motion, the parties' oral arguments at the hearing
held on November 12, 2019, and for the reasons set forth more
fully below, the Court Orders as follows: The Court Grants
plaintiffs' amended motion to substitute class
representatives and for certification of New York and Arizona
classes. The Court Grants in part and Denies in part
plaintiffs' motion for approval of the notice provide and
class notice program.
facts of the case are well known to the parties and counsel
of record. The background relevant to the instant motion is
summarized as follows.
September 5, 2017, the Court granted in part plaintiffs'
prior motion for class certification, granted in part
defendants' motion to exclude certain opinions by an
expert witness, and granted defendants' motion for
summary judgment. Corcoran v. CVS Health,
15-cv-03504-YGR, Dkt. No. 327, 2017 WL 3873709, at *20-21
(N.D. Cal. Sept. 5, 2017) (“September 2017
Order”). The Court denied in part the motion for class
certification based on the representatives of the proposed
New York and Arizona classes failing to meet the requirements
of Rule 23(a)- specifically, typicality and adequacy.
Id. at *6, 21. The Court concluded that the proposed
class representatives did not have any qualifying
transactions, and thus, denied without prejudice
plaintiffs' motion to certify a New York and Arizona
12, 2019, the Ninth Circuit issued a memorandum decision
reversing and remanding the September 2017 Order.
Corcoran v. CVS Health Corporation, 779 F.
App'x. 431 (9th Cir. 2019). Specifically, the Ninth
Circuit reversed the Court's holdings that certain
materials and issues failed to create a triable issue,
Id. at 433-34, with respect to narrowing the classes
on typicality grounds, Id. at 434, and in striking
plaintiffs' expert witness' testimony. Id.
August 23, 2019, the Court issued an order complying with the
Ninth Circuit's mandate by denying the motion to strike
plaintiffs' expert witness, and denying defendants'
motion for summary judgment, and by certifying the following
class without limitation:
All CVS customers in California, Florida, Illinois, and
Massachusetts, who, between November 2008 and July 31, 2015
(the “Class Period”), (1) purchased one or more
generic prescription drugs that were offered through
CVS's Health Savings Pass (“HSP”) program at
the time of the purchase; (2) were insured for the
purchase(s) through a third-party payor plan administered by
one of the following pharmacy benefit managers: Caremark/PCS,
Express Scripts, Medco, MedImpact, or Optum/Prescription
Solutions (prior to January 29, 2015); and (3) paid CVS an
out-of-pocket payment for the purchase greater than the HSP
price for the prescription.
Corcoran v. CVS Health, 15-cv-03504-YGR, Dkt. No.
371, 2019 WL 3987671, at *1 (N.D. Cal. Aug. 23, 2019)
(“August 2019 Order”).
that the September 2017 Order had denied plaintiffs'
motion to certify a New York and Arizona class without
prejudice, the Court permitted plaintiffs a limited period to
identify an appropriate representative for each class and
permitted the parties to engage in appropriate discovery and
motion practice on the proposed class representatives.
Id. at *2. The Court also noted in the August 2019
[D]uring the case management conference on August 19, 2019,
defendant indicated that the Court had not addressed certain
elements of class certification in the September 2017 order.
In the September 2017 order, the Court explained that it did
not address certain of defendant's arguments because,
either it had previously rejected them and so, for the same
reasons, did so again (see Dkt. No. 327 at 7 n.4, 8), or the
arguments were mooted by the Court's decisions elsewhere
within the September 2017 order (see Id. at 10-11).
Id. at *1 n.1. Plaintiffs so moved to certify New York
and Arizona classes, identifying Joseph Luzier and Aaron
Allen as class representatives for the New York class, and
Darlene McAfee as the class representative for the Arizona
class. Plaintiffs further moved for approval of the notice
provider, class notice program, and forms of notice. For the
good cause shown in plaintiffs' administrative motion,
the Court permitted plaintiffs to substitute Allen and
Luzier, the initially proposed New York class substitutes,
with Stephen Sullivan.
identified McAfee for the Arizona class and Sullivan for the
New York class, plaintiffs now seek to certify two additional
state classes composed of individuals from New York and
Arizona who “have filled prescriptions for generic
drugs at CVS pharmacies using coverage provided by their
[TPP] plans.” (Dkt. No. 101, Third Amended Complaint
(“TAC”) ¶ 10.)
Motion for Class Certification
Federal Rule of Civil Procedure 23(a), a court may certify a
class only where “(1) the class is so numerous that
joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of the
claims or defenses of the class; and (4) the representative
parties will fairly and adequately protect the interests of
the class.” Fed.R.Civ.P. 23(a). Courts refer to these
four requirements as “numerosity, commonality,
typicality[, ] and adequacy of representation.”
Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581,
588 (9th Cir. 2012).
the threshold requirements of Rule 23(a) are met, plaintiffs
must then show “through evidentiary proof” that a
class is appropriate for certification under one of the
provisions in Rule 23(b). Comcast Corp. v. Behrend,
569 U.S. 27, 33 (2013).
court's class-certification analysis must be
‘rigorous' and may ‘entail some overlap with
the merits of the plaintiff's underlying
claim.'” Amgen, Inc. v. Conn. Ret. Plans &
Trust Funds, 568 U.S. 455, 456-66 (2013) (quoting
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351
(2011)); see also Mazza, 666 F.3d at 588. The Court considers
the merits to the extent they overlap with the Rule 23
requirements. Ellis v. Costco Wholesale Corp., 657
F.3d 970, 983 (9th Cir. 2011). The Court must resolve factual
disputes as “necessary to determine whether there was a
common pattern and practice that could affect the class as a
whole.” Id. (emphasis in original).
“When resolving such factual disputes in the context of
a motion for class certification, district courts must
consider ‘the persuasiveness of the evidence
presented.'” Aburto v. Verizon Cal., Inc.,
No. 11-CV-03683, 2012 WL 10381, at *2 (C.D. Cal. Jan. 3,
2012) (quoting Ellis, 657 F.3d at 982), abrogated on other
grounds as recognized by Shiferaw v. Sunrise Sen. Living
Mgmt., Inc., No. 13-CV-2171, 2014 WL 12585796, at *24
n.16 (C.D. Cal. June 11, 2014). “A party seeking class
certification must affirmatively demonstrate [its] compliance
with the Rule.” Dukes, 564 U.S. at 350. Ultimately, the
Court exercises its discretion to determine whether a class
should be certified. Califano v. Yamasaki, 442 U.S.
682, 703 (1979).
Motion for Approval of Class Notice Provider and Class Notice
any class certified under Rule 23(b)(3) . . . the court must
direct to class members the best notice that is practicable
under the circumstances, including individual notice to all
members who can be identified through reasonable
effort.” Fed.R.Civ.P. 23(c)(2)(B). “The notice
may be by one or more of the following: United States mail,
electronic means, or other appropriate means.”
Id. The notice “must clearly and concisely
state in plain, easily understood language”:
(i) the nature of the action; (ii) the definition of the
class certified; (iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an
attorney if the member so desires; (v) that the court will
exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; ...