On January 25, 2024, WLF asked the Ninth Circuit to reverse a federal trial-court’s certification order in an unwieldy class action. The case arises from a civil-RICO suit by a third-party payer and others to recover treble their prescription costs for Actos, an FDA-approved diabetes drug. As WLF’s amicus brief makes clear, the plaintiffs’ key evidentiary problem is how to distinguish those Actos prescriptions that would have been written despite an increased-risk disclosure from those that would not have been written because of that disclosure. But making that distinction requires an individualized inquiry into the medical factors relevant to each patient’s prescription. Class certification is never appropriate where, as here, individualized questions will predominate over common ones.


WLF amicus brief