In re: Flonase Antitrust Litig. — civil — affirmance — Greenaway

The Third Circuit today upheld a district court’s rejection of a pharmaceutical company’s effort to enforce a settlement and enjoin Louisiana from suing it in state court. The state argued that GSK’s effort violated the Eleventh Amendment.

The opinion answered two main questions:

First, does a motion for approval of a class action settlement qualify as a suit against a state for Eleventh Amendment purposes if the requested settlement agreement enjoins a state from suing in a state court? Second, if the Eleventh Amendment does cover this motion for settlement approval, may GSK avoid the Eleventh Amendment’s prohibition by showing that Louisiana waived its sovereign immunity? We find that the Eleventh Amendment covers this motion and that GSK may not avoid its bar.

Greenaway was joined by Chagares and Vanaskie. Arguing counsel were Lisa Blatt of Arnold & Porter for GSK (with supporting amici from several high-powered pro-business usual suspects) and John Alden Meade of Louisiana for the state.