The Third Circuit recently vacated and remanded a district court’s decision granting class certification for a class of third-party payors (“TPPs”) pursuing Racketeer Influenced and Corrupt Organizations Act (“RICO”) claims against GlaxoSmithKline LLC (“GSK”). See In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 2026 WL 2093904 (3d Cir. July 21, 2026). The TPPs’ claims are based on GSK allegedly misrepresenting Avandia’s cardiovascular risks and benefits.
The central issue on appeal was whether the class of TPPs satisfied Rule 23’s requirements for class certification.
A unanimous Third Circuit panel held, in a published opinion, that the proposed class was ascertainable, but that common issues did not predominate on the current record. First, the Court explained that prescribing decisions were not “one dimensional” such that “evidence of a class-wide scheme” did not “justify an inference” of reliance. Id. at *13. Second, the Court held that internal GSK marketing studies were not an adequate basis for reliance either, as those studies did not “isolate” the effects of the allegedly fraudulent marketing from effects of marketing in general. Id. at *14. Third, the panel declined to allow the TPPs to prove reliance “without statistical evidence that the defendant’s conduct caused the injuries.” Id. at *15. Without such evidence, the panel held that the TPPs had not satisfied predominance, and the panel vacated and remanded for further proceedings.
The Third Circuit’s opinion is useful authority for defendants facing RICO class action cases. Litigants seeking to oppose class certification in such cases may need to pay particular attention to the type of statistical evidence required to isolate causation and can build their record and Daubert strategy accordingly from the outset of expert discovery.