Nathan A. Adams IV is a Partner in our Tallahasse office.
In In re: Flonase Antitrust Litigation, 879 F. 3d 61 (3d Cir. 2017), the court determined that the 11th Amendment barred the district court from exercising ancillary jurisdiction over a prescription brand name allergy spray manufacturer's motion to enforce an antitrust settlement agreement. As a precursor to this holding, the court ruled that a motion for approval of a class action settlement qualifies as a suit against a state for 11th Amendment purposes when the agreement enjoins the state from suing in state court. The manufacturer argued that Louisiana did not opt-out of the settlement class of the underlying litigation alleging that it had filed sham citizen petitions with the U.S. Food and Drug Administration (FDA) to delay the introduction of a generic version of Flonase and caused the private indirect purchase to pay more for the drug. Alternatively, the manufacturer argued that Louisiana waived its sovereign immunity by receiving a Class Action Fairness Act (CAFA) notice and failing to oppose the settlement based on that notice. The court disagreed this was an adequate "clear declaration" that Louisiana intended to waive sovereign immunity.
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