Vista Healthplan, Inc. v. Warner Chilcott Holdings Company III, Ltd. et al

MOTION for Settlement and Preliminary Approval of Proposed Settlement

D.D.C.June 12, 2007

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VISTA HEALTHPLAN, INC. and UNITED FOOD AND COMMERCIAL WORKERS CENTRAL PENNSYLVANIA HEALTH AND WELFARE FUND, on behalf of themselves 05 Civ. 2327 (CKK) and all others similarly situated, Plaintiffs, v. WARNER CHILCOTT HOLDINGS COMPANY III, LTD., WARNER CHILCOTT CORP., WARNER CHILCOTT (US) INC., WARNER CHILCOTT COMPANY, INC. and BARR PHARMACEUTICALS, INC., Defendants. / PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT Plaintiffs Vista Healthplan, Inc. (“Vista”) and United Food and Commercial Workers Central Pennsylvania and Regional Health and Welfare Fund (“United Food”), individually, and as representatives of the proposed Settlement Class, in support of their proposed settlement with Defendants Warner Chilcott Holdings Company III, Ltd., Warner Chilcott Corporation, Warner Chilcott (US) Inc. and Warner Chilcott Company, Inc. (“Warner Chilcott”) and Barr Pharmaceuticals, Inc. (“Barr”), move, pursuant to Fed. R. Civ. P. 23 and Local Rule 23.1, this Court to: 1. Conditionally certify, and authorize Vista and United Food to represent, a Settlement Class consisting of: All Third Party Payors in the United States who purchased, reimbursed, and/or paid for Ovcon 35 at any time from April 22, 2004 Case 1:05-cv-02327-CKK Document 98 Filed 06/12/2007 Page 1 of 5 Page -2- through the date of the Order preliminarily approving the proposed settlement of this Action. Excluded from the Class are Defendants, their subsidiaries, affiliates, officers and directors, and government entities. “Third Party Payors” shall mean any non-governmental entity that is: (i) a party to a contract, issuer of a policy, or sponsor of a plan, which contract, policy, or plan provides prescription drug coverage to natural persons; and (ii) is also at risk, pursuant to such contract, policy, or plan to provide prescription drug benefits, or to pay or reimburse all or part of the cost of prescription drugs dispensed to natural persons covered by such contract, policy, or plan. A self-funded health benefit plan for employees of a government entity that satisfies the definition of “Third Party Payors” shall not be considered a “government entity.” 2. Hold that the settlement reached with Warner Chilcott and Barr, reflected in the Settlement Agreement dated May 15, 2007, attached hereto as Exhibit 1, and described in the accompanying Memorandum of Law, is within the range of settlements reasonably warranting final approval so as to justify dissemination of notice thereof to the Settlement Class. 3. Establish a date for a hearing on final approval (“Final Hearing”) of the settlement and its terms and to finally consider other matters. 4. Approve the Notice of Pendency of Class Action, Proposed Settlement and Fairness Hearing (“Direct Notice”) and Summary Notice of Pendency of Class Action, Proposed Settlement and Fairness Hearing (“Summary Notice”), which are attached hereto as Exhibits 2 and 3, respectively. 5. Direct that the Direct Notice and Summary Notice be disseminated in the manner described in the Memorandum of Law. Case 1:05-cv-02327-CKK Document 98 Filed 06/12/2007 Page 2 of 5 Page -3- 6. Establish deadlines for the filing of Notices of Exclusion and Objections. WHEREFORE, Plaintiffs respectfully request that the Court grant this Motion and preliminarily approve the proposed settlement. A Memorandum of Law in support of this Motion has been filed contemporaneously with this Motion. A proposed Order Conditionally Certifying Settlement Class and Preliminarily Approving Settlement is attached hereto as Exhibit 4. Respectfully submitted, s/ Kevin B. Love Kevin B. Love (specially admitted) Joshua A. Migdal HANZMAN CRIDEN & LOVE, P.A. 7301 S.W. 57 Court, Suite 515th South Miami, Florida 33143 Telephone: (305) 357-9000 Facsimile: (305) 357-9050 L. Kendall Satterfield (Bar # 393953) Michael G. McLellan (Bar # 489217) FINKELSTEIN, THOMPSON & LOUGHRAN 1050 30 Street, N.W.th Washington, D.C. 20007 Phone: (202) 337-8000 Facsimile (202) 337-8090 Jay Shapiro STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, P.A. 150 W. Flagler Street, Suite 2200 Miami, Florida 33130 Phone: (305) 789-3200 Facsimile (305) 789-3229 Marc A. Wites WITES & KAPETAN, P.A. 4400 North Federal Highway Lighthouse Point, FL 33064 Phone: (954) 570-8989 Case 1:05-cv-02327-CKK Document 98 Filed 06/12/2007 Page 3 of 5 Page -4- Facsimile (954) 428-3929 Joseph C. Kohn William E. Hoese KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Phone: (215) 238-1700 Facsimile: (215) 238-1968 Eric L. Young KENNEY LENNON & EGAN 3031C Walton Road, Suite 202 Plymouth Meeting, PA 19462 Phone: (610) 940-9099 Facsimile: (610)-940-0284 Attorneys for Plaintiffs Case 1:05-cv-02327-CKK Document 98 Filed 06/12/2007 Page 4 of 5 Page -5- CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing were served via e-mail on this 12th day of June 2007, on the following persons: Peter C. Thomas, Esq. Karen N. Walker, Esq. Simpson Thacher & Bartlett LLP Mark L. Kovner, Esq. North Building Kirkland & Ellis LLP 601 Pennsylvania Avenue, N.W., 655 Fifteenth Street, N.W. Washington D.C. 20004 Washington D.C. 20005 Telephone: (202) 220-7700 Telephone: (202) 879-5000 Facsimile: (202) 220-7702 Facsimile: (202) 879-5200 Counsel for Warner Chilcott Counsel for Barr Pharmaceuticals s/ Kevin B. Love Kevin B. Love L:\103\PLEADINGS\FINAL M OTION FOR PRELIM INARY APPROVAL.wpd Case 1:05-cv-02327-CKK Document 98 Filed 06/12/2007 Page 5 of 5