US Court of Appeals upholds AstraZeneca AWP settlement

The US Court of Appeals for the First Circuit upheld an earlier District Court ruling on November 20, approving a $24 million settlement in the long-running Average Wholesale Price (AWP) pharmaceutical litigation against Anglo-Swedish drug major AstraZeneca.

The ruling affirms a settlement that awarded consumers who purchased the pharmaceutical giant's prostate cancer drug Zoladex (goserelin) treble damages, a rare if not unprecedented event in consumer litigation, according to Steve Berman a Seattle plaintiff's attorney with Hagens Berman Sobol Shapiro (HBSS).

Under the settlement approved by the US District Court in November 2007, any consumer who could provide reasonable documentation can receive three times the actual damages. Any funds left over from the $24 million settlement would go to non-profit organizations. Experts representing the plaintiffs expect that only about $21 million will be claimed by class members, many of whom have passed away since the case was filed.

The distribution to charities falls under a legal doctrine cy pre, a Norman French expression for "as near as it comes," allowing for the unclaimed amount of the settlement to benefit those in the class, even if indirectly. This is the first time the First Circuit has affirmed the use of cy pre in this way, noted Mr Berman.

The ruling was in response to an appeal filed by a class member who objected to the settlement, claiming the cy pre fund lowered the amount of recovery to class members. The objecting claimant also argued that the payment methodology was flawed; that payments discriminated against class members with supplemental insurance and that a conflict of interest existed since one of the plaintiffs could receive cy pre funding.

The court dismissed each of the objector's claims filed by attorney Don Haviland as "meritless."