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The Rossbacher Firm - Estratest Class Notice
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To access a printable MS Word doc of this notice, please CLICK HERE
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NOTICE OF PENDENCY OF CLASS ACTION
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If You Made a Payment or Co-Payment
For the Drug Estratest or Estratest H.S.,
A Class Action Lawsuit May Affect Your Rights.
Susannah K. Alexander and Dr. Sherrel Howard v. Solvay Pharmaceuticals, Inc.
(Case No. BC 300364, Case No. BC325120)
Los Angeles County Superior Court – State of California
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The Los Angeles County Superior Court has approved the text of this Notice and authorized its printing and publication. It is not from a lawyer. You are not being sued.
- A lawsuit claims that Solvay Pharmaceuticals, Inc. (“Defendant”) deceptively marketed the drug Estratest. The lawsuit asks the Court to award restitution, disgorgement, money damages, and injunctive relief. This lawsuit is not a case about personal injuries or wrongful death. Defendant denies all liability in this lawsuit.
- The Court has said that the lawsuit can go forward on behalf of a “Class” or group of people that purchased Estratest, which drug has been manufactured and marketed by Defendant. “Estratest” refers here to Estratest full-strength and/or Estratest half-strength (also called Estratest H.S.).
- The Court has said the Class includes all persons or entities in California who purchased Estratest since August 7, 1999, but excludes persons with pending claims for personal injury or wrongful death. The Court also has said there is a Subclass for consumers in California who purchased Estratest since November 24, 2001, but excludes persons with pending claims for personal injury or wrongful death. See Questions 8-9 to see if you are a member of the Class and/or Subclass.
- There has been no decision whether Defendant is liable to the Class.
- A trial will begin on or about January 7, 2009 to determine whether the claims in this lawsuit against the Defendant are true.
This Notice explains what your rights and choices are as a Class Member. You must make a choice now regarding your rights in the Class. If you choose to remain in the Class, you may be found to have waived your right to make a claim against the Defendant for any personal injury or wrongful death arising from your use of Estratest. Please read all of this Notice carefully.
A SUMMARY OF YOUR RIGHTS AND CHOICES:
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You May:
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Due Date
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Do Nothing
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Stay in the lawsuit and wait for the result.
By doing nothing, you keep the possibility of getting money that could come from a trial or a settlement. But you give up the right to sue the Defendant yourself about the claims in the lawsuit. Also, a court later might find that that you have waived your right to make a claim against the Defendant for personal injuries and/or wrongful death arising from your use of Estratest.
See Question 15.
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Exclude Yourself
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Get out of the Class.
You can write and ask to get out of the lawsuit. If any money or benefits are awarded later in a trial or settlement, you can’t get these benefits, but you keep the right to sue the Defendant at your own expense about the claims in the lawsuit. See Questions 10-12.
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Postmarked by
August 25, 2008
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Appear In The Lawsuit
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Participate in the lawsuit on your own or through a lawyer.
If you don’t exclude yourself, you can appear and speak in the lawsuit on your own or through your own lawyer. (Class Counsel has been appointed to represent you at no cost.) See Questions 13-14.
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Postmarked by
August 25, 2008
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WHAT THIS NOTICE CONTAINS
| GENERAL INFORMATION |
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1. Why did I get this Notice?
A lawsuit has been filed against the Defendant on behalf of persons and entities who paid for Estratest. You received this Notice because you may have made a payment or co-payment for Estratest in California since August 7, 1999. If so, the lawsuit may affect you.
You have legal rights and choices to make before a trial will decide whether the claims being made against the Defendant on your behalf are true. The trial is expected to begin on January 7, 2009. You must make your choice whether to remain in the Class or exclude yourself before August 25, 2008.
This Notice explains:
- What the lawsuit is about, and why it is a class action lawsuit.
- What the lawsuit claims and what the Defendant says about the claims.
- Who is affected by the lawsuit.
- Who represents you in the lawsuit.
- What your legal rights and choices are.
- How and by when you need to act.
2. What is this lawsuit about?
The Defendant manufactures, markets, and sells “Estratest,” a hormone replacement therapy drug available only through a prescription by a licensed healthcare professional. This lawsuit is about whether the Defendant deceptively marketed the drug Estratest. See Paragraphs 4 and 5 for more details.
The Court in charge of the lawsuit is the Los Angeles Superior Court. The name of the lawsuit is Susannah K. Alexander and Dr. Sherrel Howard v. Solvay Pharmaceuticals, Inc. (Case No. BC 300364, Case No. BC325120). The people who sued are called the Plaintiffs. The company that manufactured, marketed and sold Estratest is called the Defendant.
3. Why is this a class action?
In a class action lawsuit, one or more people called “class representatives” sue on behalf of people who have similar claims. The people together are a “class” or “class members.” The court must determine if it will allow the lawsuit to proceed as a class action. If it does, a trial of the claims then decides all or part of the lawsuit for everyone in the class. The Court in this lawsuit decided this case could be a class action because there are likely thousands of people that are affected, and one lawsuit would be better than many individual lawsuits.
THE CLAIMS IN THE LAWSUIT
4. What do the Plaintiffs say in the lawsuit?
The lawsuit claims that the Defendant violated various California state laws because it deceptively marketed the drug Estratest as if it were an FDA-approved drug, when in fact, Estratest was not FDA-approved for any use. The lawsuit further claims that the drug has been advertised through the Physicians Desk Reference (the “PDR”), through electronic databases, through written promotional materials, through announcements of managed care coverage, through drug labeling materials, and through company representatives who market Estratest directly to physicians. Further, the lawsuit claims that the Defendant’s deceptive marketing has misled healthcare professionals to prescribe and supply Estratest under the mistaken belief that Estratest was FDA-approved.
The lawsuit also claims that consumers purchased Estratest based on prescriptions from their physicians, and as a result of the deceptive marketing. The lawsuit claims the ultimate purchasers of Estratest in California paid more for the drug than they should have.
The lawsuit asks the Court to prohibit or enjoin the Defendant from any further deceptive marketing of Estratest and to require the Defendant to give curative notice of its alleged wrongdoing. The lawsuit also asks the Court to order Defendant to restore to purchasers all overpayments that they made with respect to Estratest (known as “restitution”), and to disgorge Defendant’s profits from the sales of Estratest, or alternatively to award money damages to the members of the Subclass.
5. What do the Defendants say about the lawsuit?
The Defendant denies that the claims in the lawsuit are true and says it didn’t do anything wrong. The Defendant denies that it needed an approved application under the FDCA in order to market Estratest and says that it did not misrepresent the status of the drug under the FDCA. The Defendant says Estratest is one of a class of drugs deemed safe and effective by the FDA for more than thirty years, and the Defendant says that healthcare professionals, who are required to prescribe the drug by state and federal law, prescribe Estratest because it is safe and effective. The Defendant denies that it deceptively marketed Estratest, and it also denies that purchasers in California paid more for Estratest than they should have. The Defendant denies all liability claimed in the lawsuit, and it denies that the Class and Subclass are entitled to any relief whatsoever in the lawsuit.
6. Has the Court decided who is right in the lawsuit?
No. The Court hasn’t decided who is right in the lawsuit yet. Much more must occur before the Court holds a trial, including notifying Class Members. By deciding now that the lawsuit can continue as a class action, the Court isn’t saying who will win.
THE CLASS, SUBCLASS, AND MEMBERS
To know if you’re affected by this lawsuit, you first should determine if you’re a member of the class.
7. What is the Class and what is the Subclass?
The Court has certified a class of purchasers of Estratest in California, which includes any person or entity who paid any part of the cost of Estratest purchased in California at any time since August 7, 1999, but excludes persons with pending claims for personal injury or wrongful death, and excludes persons who purchased Estratest for purposes of resale (the “Class”). The Court also has said that there is one subclass for consumers who purchased Estratest in California since November 24, 2001, but excludes persons with pending claims for personal injury and/or wrongful death (the “Subclass”). "Consumers" include persons who purchased Estratest for personal, family or household purposes. You could be a member of just the Class, or you could be a member of both the Class and Subclass.
8. Am I a member of the Class?
With limited exception, you are a member of the Class and part of this lawsuit if, at any time since August 7, 1999, you paid for all or any part of the price of Estratest in California.
You are not a member of the Class and part of this lawsuit, if: (a) you only purchased Estratest for purpose of resale; or (b) you are a person with a pending claim for bodily injury; or (c) you are the Defendant Solvay Pharmaceuticals, Inc., or one of its employees, officer, directors, subsidiaries, affiliates, legal counsel and their immediate families.
9. Am I a member of the Subclass?
With limited exception, you are a member of the Subclass and part of this lawsuit if, at any time since November 24, 2001, you paid for all or any part of the price of Estratest in California as a consumer, excluding any person with a pending claim for personal injury or wrongful death.
The Class Representatives in this lawsuit are Plaintiff Susannah K. Alexander and Dr. Sherrel Howard.
YOUR RIGHTS – GETTING OUT OF THE CLASS ACTION
10. Can I get out of the lawsuit and the Class?
Yes. If you don’t want to be included in the Class action, you must take steps to get out of the Class. For example, if you don’t want to recover money or other benefits from the Class (if any are awarded), or if you don’t want to make a claim against the Defendant, or if you want to protect your rights to sue the Defendant about Estratest on your own, you must “exclude” yourself from the Class. By excluding yourself, you keep the right to file your own lawsuit or join another lawsuit against the Defendant about the claims in this lawsuit.
11. How do I exclude myself from the Class?
To exclude yourself, you must send a letter signed by you that includes all of the following:
- Your name, address, and telephone number;
- The case name and number of the lawsuit: Susannah K. Alexander and Dr. Sherrel Howard v. Solvay Pharmaceuticals, Inc. (Case No. BC 300364, Case No. BC325120);
- If you have hired your own lawyer, the name, address, and telephone number of your lawyer; and
- A statement that you want to be excluded from the Class.
Your exclusion letter must be mailed first class, postmarked on or before August 25, 2008, to:
California Estratest Litigation Administrator
c/o Gilardi & Co., LLC
P.O. Box 8060
San Rafael, CA 94912-8060
Please remember that you can’t exclude yourself by phone or by sending an email.
12. If I exclude myself, can I get any money or benefits from the lawsuit?
No. If you exclude yourself from the Class, you will not recover any money or other benefits if any are obtained from a settlement or trial of the lawsuit involving the Defendant. If you exclude yourself, you’re no longer part of the Class, and nothing that happens in the lawsuit affects you.
YOUR RIGHTS – APPEARING IN THE LAWSUIT
13. Can I appear or speak in this lawsuit?
As long as you don’t exclude yourself, you can (but do not have to) participate and speak for yourself in this lawsuit through your own lawyer. This is called making an appearance. Remember that you will have to pay for the lawyer yourself. If you appear in the lawsuit, you are still a member of the Class and can share in any benefits the Class might receive as a result of settlement or a trial.
14. How do I appear in this lawsuit?
If you want your own lawyer instead of Class Counsel to participate or speak for you in this lawsuit, your lawyer must give the Court a paper that is called a Notice of Appearance. The Notice of Appearance should include the name and number of the lawsuit, and state that you wish to enter an appearance in the lawsuit.
The Notice of Appearance must be filed with the Court at the following address:
Clerk of Court
Los Angeles County Superior Court
Central Civil West Courthouse, Department 309
600 South Commonwealth Avenue
Los Angeles, California 90005
Your Notice of Appearance should be filed with the Court on or before August 25, 2008.
15. What happens if I don’t do anything at all?
If you do nothing, you stay in the Class and will be represented by Class Counsel. You also keep the possibility of getting money or benefits from the lawsuit if the Class wins at trial or settles the lawsuit. By staying in the Class, all of the Court’s orders in the lawsuit will apply to you, including any decision on the trial. Please remember that staying in the Class means you can’t sue the Defendant yourself about any of the claims in this lawsuit.
THE LAWYERS REPRESENTING YOU
16. Do I have a lawyer in this lawsuit?
Yes. The Court has appointed the following law firms to represent you and other Class Members:
HAGENS BERMAN SOBOL SHAPIRO LLP
www.hagens-berman.com
1301 Fifth Avenue, Suite 2900
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
and
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THE ROSSBACHER FIRM
www.rossbacherlaw.com
811 Wilshire Blvd., Suite 1650
Los Angeles, CA 90017-2666
Telephone: (213) 895-6000
Facsimile: (213) 895-6161
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HAGENS BERMAN SOBOL SHAPIRO LLP
www.hagens-berman.com
700 South Flower Street, Suite 2940
Los Angeles, CA 90017
Telephone: (213) 330-7150
Facsimile: (213) 330-7152
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WILENTZ, GOLDMAN & SPITZER, P.A.
www.wilentz.com
90 Woodbridge Ctr. Drive, Suite 900
Woodbridge, NJ 07095-0958
Telephone: (732) 636-8000
Facsimile: (732) 726-6686
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These lawyers are called “Class Counsel.” More information about Class Counsel and their experience is available at the Web sites listed above.
17. Who pays the lawyers and how much will they be paid?
If Class Counsel obtains money, benefits, or other relief for the Class through a settlement or a successful trial, they will ask the Court for payment of attorneys’ fees and expenses. The court must approve the amount of attorneys’ fees and expenses. If Class Counsel doesn’t obtain any money, benefits, or other relief for the Class, they won’t receive or ask to receive any attorneys’ fees or reimbursement of expenses.
18. Should I get my own lawyer?
You are not required to hire your own lawyer because Class Counsel works for you. But, if you want your own lawyer to speak for you or appear in Court, you must file a Notice of Appearance (see Question 14 to find out how to submit a Notice of Appearance). If you hire a lawyer to appear for you in the lawsuit, you will have to pay the lawyer yourself.
PERSONAL INJURY CLAIMS NOT AT ISSUE
19. Does this lawsuit involve claims for personal injury or wrongful death?
No. Plaintiffs in this lawsuit have not asserted personal injury and/or wrongful death claims on their own behalf or on behalf of other class members. You cannot assert claims or recover for any personal injuries or wrongful death as part of this class action lawsuit.
If you remain in the Class or Subclass, a court could hold that your participation in this lawsuit bars you from pursuing an independent action seeking compensation from the Defendant for any bodily injury you may have sustained from your use of Estratest. Therefore, by remaining a member of the Class and/or Subclass, you may be giving up a right to bring an independent lawsuit claiming personal injuries or wrongful death from the use of Estratest.
20. Are more details and information available?
This Notice is just a summary of the lawsuit. More details are in the Fifth Amended Complaint filed by Class Counsel, and the other legal documents that have been filed with the Court in this lawsuit. You can look at and copy these legal documents at any time during regular office hours by requesting assistance at the filing window at: The Los Angeles County Superior Court for the State of California, Central Civil West Courthouse, 600 South Commonwealth Avenue, Los Angeles, California 90005. Copies of some of the important documents, like the Fifth Amended Complaint, are also available to you on-line at www.EstatestLitigation.com.
In addition, if you have any questions about the lawsuit or this Notice, you may:
- Visit the California Estratest Litigation Website at www.EstatestLitigation.com
- Write to: California Estratest Litigation Administrator
c/o Gilardi & Co., LLC
P.O. Box 8060
San Rafael, CA 94912-8060
IT IS SO ORDERED.
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| Date: June 26, 2008 |
/S/ Anthony J. Mohr
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The Honorable Judge Anthony J. Mohr
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