As Wyeth Pharmaceuticals defends itself against antitrust claims in San Francisco Superior Court, its legal battles may lead to a new rule for opting out of class actions. A class action and an unfair competition suit, which have been coordinated before a San Francisco judge for more than a year, both accuse Wyeth of squelching competition to its drug Premarin, which treats hot flashes and other symptoms of menopause.
Plaintiff Carol Sullivan brought her own action against Wyeth in San Diego, after the San Francisco suit was already filed but before it was certified as a class action. Now, pouncing on the fact that she never sent a letter to specifically exclude herself from the San Francisco class action, the drugmaker is trying to persuade the San Francisco court to throw out Sullivan's lawsuit.
And Sullivan's lawyers are fighting just as hard to allow her case to continue, arguing that Sullivan made her intentions so clear that she didn't need to follow the steps laid out for typical class members.
In voicing a tentative ruling last week, Judge Richard Kramer decided a class member such as Sullivan should still be able to opt out at this point in the litigation -- if her lawyers can demonstrate good cause, and if they can show that letting her proceed separately now would not prejudice "the class action process."
Kramer continued the hearing until August, ordering Finkelstein & Krinsk, the San Diego firm that represents Sullivan, and Arnold & Porter, the Washington, D.C.-based firm that represents the drugmaker, to file briefs about whether Sullivan should qualify under such a rule.
"This will be a good one for the Court of Appeal to deal with, a new standard for someone to opt out," Kramer mused during the hearing on June 14, though he admitted he isn't sure if the problem crops up frequently with class actions. "I've never had this happen," noted Kramer, who has presided over San Francisco's complex litigation courtroom for more than four years.