## Facts

- Direct purchasers sued Mylan and related entities alleging monopolization and restraint of trade in generic lorazepam and clorazepate, causing supracompetitive prices.
- Earlier governmental actions by the FTC and several state attorneys general against Mylan ended in a settlement that provided relief associated with indirect-purchaser harm.
- In the private MDL, plaintiffs sought damages under Sherman Act §§ 1–2 and Clayton Act § 4 for alleged overcharges paid by direct purchasers.
- The district court denied defendants’ motion to dismiss and certified a class of direct purchasers.
- Defendants petitioned for discretionary interlocutory review of the certification order under Federal Rule of Civil Procedure 23(f), arguing that class certification improperly conflicted with principles associated with limiting federal antitrust damages to direct purchasers and that the class definition allegedly swept in indirect purchasers.

## Issues

1. What criteria should guide the D.C. Circuit’s discretion to permit interlocutory review of class-certification orders under Federal Rule of Civil Procedure 23(f)?
2. Under those criteria, should the court accept interlocutory review of the district court’s order certifying a class of direct purchasers?

## Decision

- The D.C. Circuit denied the Rule 23(f) petition.
- The court identified three typical circumstances warranting Rule 23(f) review: (1) a death-knell situation (for either side) independent of the merits plus a questionable certification decision; (2) an unsettled, fundamental class-action issue likely to evade review after final judgment; or (3) a manifestly erroneous certification decision.
- The court held defendants failed to show a death-knell scenario coupled with a sufficiently questionable certification ruling.
- The court concluded defendants’ arguments primarily involved antitrust standing and allocation of damages rather than a fundamental, unsettled class-action issue likely to evade later review.
- The court found no manifest error in the district court’s certification analysis and emphasized that interlocutory review should remain exceptional given the policy against piecemeal appeals.

## Legal Principles

- Rule 23(f) grants courts of appeals broad discretion to permit interlocutory appeals from orders granting or denying class certification, but that discretion should be exercised using principled criteria.
- Interlocutory review is typically appropriate only when:  
  - a non-merits death-knell pressure exists and the certification decision is questionable; or  
  - the certification order presents an unsettled, fundamental issue of class-action law likely to evade review; or  
  - the certification decision is manifestly erroneous.
- Arguments that primarily raise merits-adjacent questions (such as antitrust standing or damages distribution) ordinarily can be reviewed after final judgment and do not, without more, justify Rule 23(f) review.

## Conclusion

The D.C. Circuit refused to entertain an interlocutory challenge to a direct-purchaser antitrust class certification and, in doing so, articulated a three-category framework for when discretionary Rule 23(f) review is ordinarily warranted, reaffirming that such appeals should be rare.


In re Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98 (D.C. Cir. 2002)