OPINION
Rufe, District Judge.
Defendants in this multidistrict antitrust litigation have moved to dismiss the state law claims by the End-Payer Plaintiffs ("EPPs") and the Indirect-Reseller Plaintiffs ("IRPs") with respect to the following generic drugs: (1) clobetasol; (2) digoxin; (3) divalproex ER; (4) doxycycline; (5) econazole; and (6) pravastatin (collectively, the "Group 1" drugs).1 For the reasons set forth below, the motions will be granted in part and denied in part.
I. BACKGROUND
The background relevant to this decision is set forth at length in the Court's October 16, 2018 Opinion2 addressing Defendants' motions to dismiss Plaintiffs' Sherman Act claims with respect to the Group 1 drugs and the Court will not here restate it in detail. Broadly, Plaintiffs contend that Defendants — pharmaceutical manufacturers — engaged in an unlawful scheme or schemes to fix, maintain and stabilize prices, rig bids, and engage in market and customer allocations of certain generic pharmaceutical products, including the Group 1 drugs. The EPPs and the IRPs allege that during the time relevant to their claims Defendants sold or distributed the Group 1 drugs "in a continuous and uninterrupted flow of interstate commerce to customers throughout the United States."3
Relevant to the issues presently before the Court, the EPPs and the IRPs assert claims for monetary damages under various state antitrust laws, as well as state law consumer protection claims and/or claims for unjust enrichment. They bring state law claims because they are precluded from asserting federal antitrust claims for damages under the Supreme Court's decision in Illinois Brick Co. v. Illinois,4 which "determined that direct purchasers are the only parties `injured' in a manner that permits them to recover damages."5
A. EPPs
The EPPs include employee welfare benefits funds, labor unions, and private insurers, as well as individual plaintiffs, that allege either that they indirectly purchased generic pharmaceuticals manufactured by one or more Defendants or that they provided reimbursements for some or all of the purchase price for the following drugs:
GROUP 1 CASES Divalproex
End-Payer Plaintiffs: Clobetasol Digoxin ER Doxycycline Econazole Pravastatin
American Federation of State,
County and Municipal
Employees District Council 37 x x x x x x
Health & Security Plan
Detectives Endowment
Association of the City of New x x x
York
Nina Diamond x
Hennepin County x
International Union of
Operating Engineers Local 30 x
Benefits Fund
Robby Johnson x
Louisiana Health Service &
Indemnity Company d/b/a Blue
Cross and Blue Shield of x x x x x x
Louisiana and HMO Louisiana,
Inc.
Ottis McCrary x
Philadelphia Federation of
Teachers Health and Welfare x
Fund
The City of Providence Rhode
Island x x x
Sergeants Benevolent
Association of the Police
Department of the City of New x x x
York Health and Welfare Fund
Self-Insured Schools of
California x x x x x x
David Sherman x
Twin Cities Pipe Trades
Welfare Fund x
UFCW Local 1500 Welfare
Fund x
Uniformed Fire Officers
Association Family Protection x
Plan Local 854
Unite Here Health x x x x x x
United Food & Commercial
Workers and Employers
Arizona Health and Welfare x
Trust
Valerie Velardi x
1199SEIU National Benefit
Fund x x
1199SEIU Greater New York
Benefit Fund x x
1199SEIU National Benefit
Fund for Home Care Workers x x
1199SEIU Licensed Practical
Nurses Welfare Fund x x
The EPPs' complaints include antitrust, consumer protection and unjust enrichment claims under the laws of various states and territories as is set forth in the following table:
End-Payer State Antitrust Consumer Protection Unjust Enrichment
Plaintiffs
CB DG DV DX EC PV CB DG DV DX EC PV CB DG DV DX EC PV
Alabama6 wd wd wd wd wd wd x x x x x x
Alaska x x x x x x x x x x x x
Arizona x x x x x x x x x x x x
Arkansas x x x x x x x x x x x x
California x x x x x x x x x x x x x x x x x x
Colorado x x x x x x x x x x x x
Connecticut x x x x x x
Delaware x x x x x x x x x x x x
District of x x x x x x x x x x x x x x x x x x
Columbia
Florida x x x x x x x x x x x x
Georgia x x x x x x x x x x x x
Hawaii x x x x x x x x x x x x x x x x x x
Idaho x x x x x x
Illinois x x x x x x x x x x x x
Indiana
Iowa x x x x x x x x x x x x
Kansas x x x x x x x x x x x x
Kentucky x x x x x x
Louisiana x x x x x x
Maine x x x x x x x x x x x x
Maryland x x x x x x
Massachusetts x x x x x x x x x x x x
Michigan x x x x x x x x x x x x x x x x x x
Minnesota x x x x x x x x x x x x x x x x x x
Mississippi x x x x x x x x x x x x
Missouri x x x x x x x x x x x x
Montana x x x x x x x x x x x x
Nebraska x x x x x x x x x x x x x x x x x x
Nevada x x x x x x x x x x x x x x x x x x
New x x x x x x x x x x x x x x x x x x
Hampshire
New Jersey7 wd wd wd wd wd wd x x x x x x
New Mexico x x x x x x x x x x x x x x x x x x
New York x x x x x x x x x x x x x x x x x x
North x x x x x x x x x x x x x x x x x x
Carolina
North Dakota x x x x x x x x x x x x x x x x x x
Ohio
Oklahoma x x x x x x
Oregon x x x x x x x x x x x x
Pennsylvania x x x x x x
Puerto Rico x x x x x x
Rhode Island x x x x x x x x x x x x x x x x x x
South x x x x x x x x x x x x
Carolina
South Dakota x x x x x x x x x x x x x x x x x x
Tennessee x x x x x x x x x x x x
Texas x x x x x x
Utah x x x x x x x x x x x x x x x x x x
Vermont8 x x x x x x x x x x x x x x x x x x
Virgin Islands x x x x x x x x x x x x
Virginia x x x x x x x x x x x x
Washington x x x x x x
West Virginia x x x x x x x x x x x x x x x x x x
Wisconsin x x x x x x x x x x x x x x x x x x
Wyoming x x x x x x
[Editor's Note: The preceding image
contains the reference for footnotes6,7,8].
Group 1 EPPs reside in or are headquartered in various states, but not in all of the jurisdictions listed above.9 Their Complaints allege that they indirectly purchased or made payments or reimbursements for the Group 1 drugs in many — but not necessarily all — of the jurisdictions where they bring their state law claims.10 However, they assert their claims individually and on behalf of a class, seeking damages for "[a]ll persons and entities in the End-Payer Damages Jurisdictions who indirectly purchased, paid and/or provided reimbursement for some or all of the purchase price for" the Group 1 Drugs.11 The "End-Payer Damages Jurisdictions" are defined as to include all States (except Indiana and Ohio), as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands.12
B. IRPs
The IRPs are the following independent pharmacies that allege they acquire drugs indirectly through drug wholesalers rather than directly from drug manufacturers13:
MGROUP 1 CASES Divalproex
Indirect Reseller Plaintiffs: Clobetasol Digoxin ER Doxycycline Econazole Pravastatin
Chet Johnson Drug, Inc. x x x x x x
Deal Drug Pharmacy x x x x x x
Falconer Pharmacy, Inc. x x x x x x
Halliday's & Koivisto's Pharmacy x x x x x x
Russell's Mr. Discount Drugs, Inc. x x x x x x
West Val Pharmacy x x x x x x
Chet Johnson is in Avery, Wisconsin.14 Deal Drug is in Nashville, Tennessee.15 Falconer is in Falconer, New York.16 Russell's is in Lexington, Mississippi.17 Halliday's is in Jacksonville, Florida.18 West Val is in Encino, California.19
The IRPs' complaints include antitrust, consumer protection and unjust enrichment claims under the laws of various states and territories as is set forth in the following table20:
Indirect State Antitrust Consumer Protection Unjust Enrichment
Reseller
Plaintiffs
CB DG DV DX EC PV CB DG DV DX EC PV CB DG DV DX EC PV
Alabama x x x x x x x x x x x x
Alaska x x x x x x x x x x x x
Arizona x x x x x x x x x x x x
Arkansas x x x x x x x x x x x x
California x x x x x x x x x x x x x x x x x x
Colorado x x x x x x x x x x x x
Connecticut
Delaware x x x x x x x x x x x x
District of x x x x x x x x x x x x
Columbia
Florida x x x x x x x x x x x x
Georgia x x x x x x x x x x x x
Hawaii
Idaho x x x x x x
Illinois x x x x x x x x x x x x
Indiana
Iowa x x x x x x x x x x x x
Kansas x x x x x x x x x x x x
Kentucky
Louisiana x x x x x x
Maine x x x x x x x x x x x x
Maryland x x x x x x
Massachusetts x x x x x x
Michigan21 x x x x x x wd x wd wd wd wd x x x x x x
Minnesota x x x x x x x x x x x x x x x x x x
Mississippi x x x x x x x x x x x x
Missouri x x x x x x
Montana x x x x x x
Nebraska x x x x x x x x x x x x x x x x x x
Nevada22 x x x x x x wd x wd wd wd wd x x x x x x
New x x x x x x x x x x x x x x x x x x
Hampshire
New Jersey x x x x x x x x x x x x
New Mexico x x x x x x x x x x x x x x x x x x
New York x x x x x x x x x x x x x x x x x x
North x x x x x x x x x x x x x x x x x x
Carolina
North Dakota x x x x x x x x x x x x x x x x x x
Ohio
Oklahoma
Oregon x x x x x x x x x x x x
Pennsylvania x x x x x x
Puerto Rico x x x x x x
Rhode Island x x x x x x x x x x x x
South x x x x x x x x x x x x
Carolina
South Dakota x x x x x x x x x x x x x x x x x x
Tennessee x x x x x x x x x x x x
Texas x x x x x x
Utah x x x x x x x x x x x x
Vermont x x x x x x x x x x x x
Virgin Islands x x x x x x x x x x x x
Virginia x x x x x x
Washington x x x x x x
West Virginia x x x x x x x x x x x x x x x x x x
Wisconsin x x x x x x x x x x x x x x x x x x
Wyoming x x x x x x
[Editor's Note: The preceding image
contains the reference for footnotes21,22].
Although IRPs are not located in each of the jurisdictions listed in the table above, they allege that "[t]here are approximately 22,000 privately-owned independent pharmacies in the United States" and that "[o]ver a billion prescriptions for U.S. patients are dispensed through independent pharmacies each year."23 Thus, IRPs assert their state law claims individually and on behalf of a damages class of all privately-held pharmacies in the "IRP Damages Jurisdictions" that indirectly purchased the relevant Group 1 drug during the class period alleged in each Group 1 complaint.24 The IRP Damages Jurisdictions are:
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming as well as the District of Columbia, Puerto Rico, and the U.S. Virgin Islands.25
C. DEFENDANTS
Moving Defendants, alleged manufacturers of the Group 1 drugs,26 are identified at length in the Court's October 16, 2018 Opinion and will not be thoroughly inventoried here.27 Group 1 Defendants are alleged to be incorporated in the following states: Colorado (Sandoz), Delaware (Actavis, Glenmark, Impax, Heritage, Hi-Tech Pharmacal, Lannett, Lupin, Mayne, Morton Grove, Perrigo, Taro, Teligent, Teva, West-Ward, Wockhardt), Florida (Apotex), Louisiana (Akorn), Michigan (Sun), New Jersey (Dr. Reddy's, Zydus), New York (Fougera, Par), Pennsylvania (Mylan, Inc.), and West Virginia (Mylan Pharmaceuticals). They are alleged to have principal places of business in: California (Impax), Florida (Apotex), Illinois (Akorn, Morton Grove), Maryland (Lupin), New Jersey (Actavis, Dr. Reddy's, Glenmark, Heritage, Sandoz, Sun, Teligent, West-Ward, Wockhardt, Zydus), New York (Fougera, Hi-Tech Pharmacal, Par, Perrigo, Taro), North Carolina (Mayne), Pennsylvania (Lannett, Teva), and West Virginia (Mylan Defendants). Group 1 EPPs and IRPs allege that during the class period Group 1 Defendants sold the Group 1 drugs to purchasers throughout the United States.28
In their complaints, Group 1 Plaintiffs allege that: "Defendants' and their co-conspirators' conduct, including the marketing and sale of [the relevant Group 1 drug], took place within, has had, and was intended to have, a direct, substantial, and reasonably foreseeable anticompetitive effect upon interstate commerce within the United States"29; and/or that:
Defendants' anticompetitive conduct occurred in part in trade and commerce within the states and territories set forth herein, and also had substantial intrastate effects in that, inter alia, drug wholesalers within each state and territory were foreclosed from offering less expensive generic [the relevant Group 1 drug] to Plaintiffs inside each respective state and territory. The foreclosure of these less expensive generic products directly impacted and disrupted commerce for Plaintiffs within each state and territory and forced Plaintiffs to pay supracompetitive prices.30
Group 1 EPPs and IRPs allege that "Defendants engaged in unfair competition or unfair, unconscionable, deceptive or fraudulent acts or practices in violation the state consumer protection and unfair competition statutes" of various states.31 They also allege that Group 1 Defendants benefitted from their alleged conduct and that Defendants have been "enriched by revenue resulting from overcharges for" the Group 1 drugs while "Plaintiffs have been impoverished by the overcharges they paid for [the Group 1 drugs] imposed through Defendants' unlawful conduct."32
II. DISCUSSION
Group 1 Defendants move to dismiss the state law claims brought by the Group 1 EPPs and IRPs. They argue that Group 1 EPPs' and IRPs' claims under the laws of those states or territories in which they do not reside or allege to have reimbursed purchases for Group 1 drugs should be dismissed for lack of Article III standing. Defendants also argue that Group 1 EPPs' and IRPs' state antitrust, consumer protection, and unjust enrichment claims suffer from a variety of state specific pleading failures. Finally, they assert that many of the Group 1 EPPs' and IRPs' state law claims are barred by applicable statutes of limitations. The Court considers Group 1 Defendants' arguments in turn.
A. ARTICLE III STANDING
To the extent that Group 1 Defendants seek to dismiss certain of the EPP and IRP state law claims for failure to allege facts sufficient to establish Article III standing, Rule 12(b)(1) of the Federal Rules of Civil Procedure applies to their motions "because standing is a jurisdictional matter."33 Article III of the Constitution requires Plaintiffs to have standing in order to assert their claims.34 To sufficiently allege constitutional standing, Plaintiffs must allege three elements: (1) injury-in-fact: an invasion of a legally protected interest that is "concrete and particularized" and "actual or imminent" (not merely "conjectural" or "hypothetical"); (2) causation: an injury which is fairly traceable to the challenged conduct; and (3) redressability: that it is "`likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'"35 Where a complaint fails to satisfy these requirements, the federal court does not have subject matter jurisdiction and the claims must be dismissed.36 Because Group 1 EPPs and IRPs have invoked this Court's federal jurisdiction over their state law claims, they bear the burden of establishing the elements required for Article III standing.37 When considering a 12(b)(1) motion, the Court "review[s] only whether the allegations on the face of the complaint, taken as true, allege sufficient facts to invoke the jurisdiction of the district court."38
Group 1 Defendants contend Group 1 EPPs and IRPs lack Article III standing to pursue claims under the laws of the jurisdictions where the named Plaintiffs have not specifically alleged purchases or reimbursements.39 "[W]hen the issue presented in a motion to dismiss concerns solely whether the named plaintiffs have standing to assert class action claims, the named plaintiffs' standing is a threshold issue, and there is no reason to defer the named plaintiffs' standing determination until class certification."40 Here, Group 1 Defendants do not dispute that Group 1 EPPs and IRPs have standing to pursue claims under the laws of those jurisdictions where they paid for the generic drugs at issue. No named Plaintiff seeks relief for itself under the laws of a jurisdiction where it would not have standing. Rather, the Group 1 EPP and IRP complaints include "a mixture of state law claims only because [Plaintiffs] bring [each action] as a proposed class action."41
As one court has explained, "[t]he interplay between Article III standing and class standing presents a surprisingly difficult question."42 "Courts have taken different views about how to evaluate Article III and class standing at the motion to dismiss stage where putative class representatives assert claims arising under the laws of states where they neither reside nor allege to have suffered injury."43 The Third Circuit has not definitively answered this question. In Neale v. Volvo Cars of North America, LLC,44 the Court of Appeals did caution that "[r]equiring individual standing of all class members would eviscerate the representative nature of the class action." It explained that it was "not persuaded" that it should "adopt the approach taken by some of [its] sister courts that require all class members to possess standing."45 It held that "so long as a named class representative has standing, a class action presents a valid `case or controversy' under Article III."46
In this District, the decision in In re: Niaspan Antitrust Litigation concluded that Neale did not "affect the requirement that plaintiff must establish standing individually with respect to each claim asserted,"47 citing "prior decisions in this district and others [that] have ruled that named plaintiffs in an antitrust class action lack standing to bring claims on behalf of putative classes under the laws of states where no named plaintiff is located and where no named plaintiff purchased the product at issue."48 Before Neale, a prior decision in the same litigation had explained that "deferring this standing determination would allow named plaintiffs in a proposed class action, with no injuries in relation to the laws of certain states referenced in their complaint, to embark on lengthy class discovery with respect to injuries in potentially every state in the Union."49
But other courts, including some in this Circuit, have taken a different view. In the case In re Liquid Aluminum Sulfate Antitrust Litigation, the District of New Jersey rejected the defendants' argument that the named plaintiffs "lack[ed] standing to bring state law claims under the laws of a state in which they do not reside."50 The Court explained that "class certification... is `logically antecedent' to the issue of standing. This is because class discovery will unveil the various members of the currently unknown class."51 Similarly, in the In re Chocolate Confectionary Antitrust Litigation, the Middle District of Pennsylvania found that because "the plaintiffs' attempt to represent the proposed class" gave rise to the question of whether they had standing to represent individuals from other states, the question of class certification was "`logically antecedent' to the standing concerns" and the Court declined to rule on the issue "until class certification proceedings."52
Group 1 "Defendants are not challenging [EPPs' or IRPs'] standing to bring their own claims; they are challenging their standing to bring claims on behalf of the class."53 It matters that this issue arises in the context of a class action. In a recent decision in a putative class action asserting claims under the Americans with Disabilities Act, where the named plaintiffs sought to require the defendant "to correct alleged ADA violations at more than the two restaurant locations where they claim[ed] to have actually experienced injury," the Third Circuit rejected the defendants' "invitation to insert Rule 23 issues into [its] inquiry on standing," and explained that "the standing inquiry must be limited to a consideration of the class representatives themselves, after which [the court] may `employ Rule 23 to ensure that classes are properly certified.'"54
Similarly, the Second Circuit has explained that:
Since class action plaintiffs are not required to have individual standing to press any of the claims belonging to their unnamed class members, it makes little sense to dismiss the state law claims of unnamed class members for want of standing when there was no requirement that the named plaintiffs have individual standing to bring those claims in the first place.55
It held that "whether a plaintiff can bring a class action under the state laws of multiple states is a question of predominance under Rule 23(b)(3), not a question of standing."56 And yet another court has concluded that:
there is no constitutional imperative that the named plaintiff himself have a valid claim under every legal theory he proposes to assert on behalf of a class.... If such a requirement exists, it is the consequence of the class-certification prerequisites imposed by Rule 23 of the Federal Rules of Civil Procedure, not of Article III.57
Even more recently, the First Circuit explained that:
the question of standing is not: Are there differences between the claims of the class members and those of the class representative? Rather, the pertinent question is: Are the differences that do exist the type that leave the class representative with an insufficient personal stake in the adjudication of the class members' claims?58
The First Circuit explained the plaintiffs had successfully stated a basis for Article III standing where "success on the claim under one state's law will more or less dictate success under another state's law" and the "laws are materially the same," such that "the fact that judgments for some class members will nevertheless enter under the laws of states other than the states under which any of the class representatives' judgments will enter ... has no relevant bearing on the personal stake of the named plaintiffs in litigating the case[.]"59 The court observed that "[i]n a properly certified class action, the named plaintiffs regularly litigate ... claims of other class members based on transactions in which the named plaintiffs played no part."60
Group 1 EPPs' and IRPs' allegations are sufficient to demonstrate a substantial and shared interest in proving that Group 1 Defendants' alleged unlawful conduct resulted in overpayments for the Group 1 drugs, injuries redressable by an award of damages under the state antitrust, consumer protection and unjust enrichment laws cited in the Group 1 EPP and IRP complaints.61 Because the state law claims of the named Group 1 EPPs and IRPs largely parallel those of the putative class members, it is both proper and more efficient to consider whether they may pursue their claims on behalf of the unnamed class members in the context of the class certification analysis required under Rule 23 of the Federal Rules of Civil Procedure (e.g., commonality and typicality under 23(a), and predominance under 23(b)). Therefore, Group 1 EPPs' and IRPs' claims on behalf of absent class members will not be dismissed for lack of Article III standing.
B. FAILURE TO STATE A CLAIM
To the extent that Group 1 Defendants seek to dismiss certain of the Group 1 EPP and IRP state law claims for failure state a claim pursuant to certain state laws, Rule 12(b)(6) of the Federal Rules of Civil Procedure applies to their motions. Rule 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief can be granted where a plaintiff's "plain statement" lacks enough substance to show that he is entitled to relief.62 To withstand dismissal, the complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory."63 On a motion to dismiss, the Court "consider[s] plausibility, not probability."64 In other words, Plaintiffs are not required "to plead facts that, if true, definitely rule out all possible innocent explanations."65 The Court must ordinarily consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.66 In addition, "courts may consider documents integral to or explicitly relied upon in the complaint ... or any undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document."67 Courts are not, however, bound to accept as true legal conclusions couched as factual allegations.68
1. STATE ANTITRUST CLAIMS
Group 1 Defendants argue that many of Group 1 EPPs' and IRPs' state antitrust claims should be dismissed for failure to state a claim. To the extent that Group 1 Defendants contend the state antitrust claims should be dismissed because the EPPs and IRPs have not stated a claim under the overlapping federal antitrust laws, the motions fail. The Court has already determined that Group 1 Plaintiffs' allegations (with the exception of their allegations against Telligent)69 are sufficient to permit their federal antitrust claims to withstand dismissal.70 Also, the Group 1 EPPs and IRPs have alleged a basis for antitrust standing, the Court having held that they have sufficiently pled "that they have suffered harm that is an essential component of Defendants' anticompetitive scheme, as opposed to an ancillary byproduct of it."71
The Court considers Defendants' state specific arguments regarding the sufficiency of Group 1 EPPs and IRPs state law antitrust claims below. Some of the arguments apply to all or most of such claims, others to subsets, and still others to the laws of individual states.
a. Class Action Bar: Illinois Antitrust Act
Group 1 Defendants argue that EPPs and IRPs cannot bring class claims under the Illinois Antitrust Act. The statute provides that "no person shall be authorized to maintain a class action in any court of this State for indirect purchasers asserting claims under this Act, with the sole exception of this State's Attorney General."72 "District courts are divided on whether the Illinois Antitrust Act precludes indirect purchasers from filing class actions"73 and the Third Circuit has not had to resolve this question. Federal courts sitting in diversity jurisdiction must utilize federal procedural law and state substantive law.74 If the Illinois statute is substantive in nature, it applies, and must be followed here.75 However, "there is no bright line between procedural and substantive law, and thus, the distinction is difficult to determine."76
Group 1 Defendants argue that the Illinois "restriction on indirect purchaser class actions is substantive, represents a policy judgment as to the feasibility of managing duplicative recovery, which the [Illinois] legislature has entrusted to the [State] Attorney General but not to individual indirect purchasers, and therefore must be applied in federal court."77 Group 1 EPPs respond that "the class action bar is not part of Illinois' framework of substantive rights and remedies," because Rule 23 of the Federal Rules of Civil Procedure, the rule governing class actions is, "merely a procedural mechanism that affects how those claims proceed in federal court."78 Likewise, Group 1 IRPs assert that the Illinois Antitrust Act class action bar, is a "procedural limitation" that does not apply because they "filed in federal court and bring a class action under Rule 23 ...."79
The prevailing view of the District Courts that have considered this issue within this Circuit is that the Illinois Antitrust Act prohibits indirect purchaser class actions.80 Under the Supreme Court's decision in Shady Grove Orthopedic Association v. Allstate Insurance Co., state procedural rules control in federal court when they are "part of a State's framework of substantive rights or remedies."81 The Court is persuaded that "the indirect purchaser restrictions of the [Illinois Antitrust Act] are `intertwined' with the underlying substantive right," and, as a result "application of Rule 23 would `abridge, enlarge or modify' Illinois' substantive rights."82 Accordingly, the Court will dismiss with prejudice Group 1 EPPs' and IRPs' claims under the Illinois Antitrust Act.
b. Pre-Suit Notice Requirements
The antitrust laws of Arizona, Hawaii, Nevada, and Utah have pre-filing notice requirements obligating any antitrust plaintiff to serve certain state officials with pre-suit notices in order to pursue their claims.83 Group 1 Defendants argue that the clobetasol, digoxin, divalproex, econazole and pravastatin EPPs' Arizona, Hawaii, Nevada, and Utah antitrust claims and the clobetasol, divalproex, econazole, and pravastatin IRPs' Arizona, Nevada, and Utah antitrust claims must be dismissed because the relevant plaintiffs have not sufficiently alleged that they met each state's pre-suit notice requirement. The relevant EPPs respond that they "did send notices as required" and submit a declaration in support of their efforts to provide the notice required under each of the relevant state laws.84 The relevant IRPs assert that defendants "had notice of the incoming IRP complaints long before they were served" and "are in no way prejudiced by the IRP's omission of an allegation that notice was provided."85 Group 1 Plaintiffs also contend that their "adherence to the notice requirements is not mandatory because the states' procedural rules are superseded by federal procedural rules."86 Group 1 Defendants counter that compliance with the notice requirements should not be excused under Shady Grove.87
With respect to the Shady Grove issue, there is no consensus regarding whether the cited notice requirements are "substantive" or "procedural." To the extent that the relevant statutory provisions have been considered, some have concluded that the provisions are mandatory and that declining to follow them "`in federal court would encourage forum shopping and the inequitable administration of laws.'"88 Others have found they are not sufficiently a part of the relevant States' framework of substantive rights or remedies to be controlling.89 Regardless of whether the relevant notice provisions are substantive or procedural, they do not alter the substantive elements of Plaintiffs' claims and are not a pleading requirement for the Complaints. Therefore, this argument is not a basis for dismissal of EPPs or IRPs state antitrust claims.
c. Intrastate Conduct
Group 1 Defendants challenge the sufficiency of certain Group 1 EPPs' and IRPs' claims under the antitrust laws of the District of Columbia, Hawaii, Illinois90 , Kansas, Maine, Minnesota, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, South Dakota, Tennessee, West Virginia and Wisconsin, arguing the laws require Plaintiffs to allege a nexus between Defendants' conduct and intrastate commerce.91 Group 1 Defendants contend that the relevant state antitrust claims should be dismissed because Group 1 EPPs' and IRPs' complaints lack specific allegations connecting Group 1 Defendants' alleged conduct to each state where they raise a state antitrust claim and instead include only conclusory allegations that Group 1 Defendants' alleged conduct "substantially affected" the commerce of each relevant state.92 Group 1 Defendants assert that the Group 1 EPPs' allegations do not allow the Court to "assess whether the conduct had an incidental or substantial effect — if any at all — on the states under which the EPPs bring their claims."93 Similarly, they argue that the Group 1 IRPs' allegations of a nationwide conspiracy with "conclusory and identical allegations for each state, including unspecific assertions that the conspiracy restrained competition, raised prices, and substantially affected commerce in that state" are not enough to plead a substantial effect on intrastate commerce.94
Group 1 EPPs respond that to withstand dismissal, no more is needed than their allegations that class members made purchases of the Group 1 drugs at supracompetitive prices within the states relevant to their state law claims.95 They argue that "[s]tate statutes do not require that the anticompetitive conduct (i.e., the act of conspiring) occur within the state, so long as the adverse effects are felt within the state. Moreover, the alleged effects need not occur entirely or even predominately within a state to meet the requirement."96 Similarly, Group 1 IRPs argue that "there can be no question that it is at least plausible that each of the [relevant] states suffered a substantial effect on commerce within its borders" where they have alleged that "wholesalers, pharmacies, patients and their health plans were all illegally overcharged for generic drugs" as a result of Group 1 Defendants' alleged conduct.97
Other courts have held that plaintiffs sufficiently pled state antitrust claims where they alleged a "nationwide antitrust violation that increased prices paid by the end payors in each state," rejecting an arguments that state law antitrust claims should be dismissed because the relevant state laws "target only anticompetitive conduct that occurs solely or predominantly within the borders of the state...."98 At this stage of the litigation, the Court agrees that the Group 1 EPPs' and IRPs' allegations of a broad nationwide-scheme to fix generic drug prices are enough to satisfy the nexus requirement for asserting claims under the relevant state antitrust laws.99 "[I]t is not obvious why the intra state effect of anticompetitive conduct would not be reached by the cited statutes merely because inter state conduct predominates."100 Whether EPPs and/or IRPs will later be able to prove the requisite nexus is a separate question to be addressed later in this litigation. "The fact-based inquiry can take place after discovery, at summary judgment."101
d. Citizenship or Residency Requirements
Group 1 Defendants argue that certain of the Group 1 EPPs' and IRPs' state antitrust law claims must be dismissed because the relevant state antitrust statutes include citizenship or residency requirements that Group 1 EPPs and IRPs have not supported with sufficient allegations.102 Indeed, the Utah Antitrust Act specifies that "[a] person who is a citizen of this state or a resident of this state" is permitted to bring a claim.103 Group 1 EPPs and IRPs respond that that dismissal is not warranted because "nothing in the relevant statutes requires that the named Plaintiffs in class actions be citizens or residents...."104 They assert that there are members of the putative Group 1 EPP and IRP classes that made purchases or reimbursements for the Group 1 drugs in each relevant U.S. and state territory at supracompetitive prices and that no more is needed for their claims to withstand dismissal.105 The Court agrees with EPPs and IRPs. "Allegations that members of the putative class presumably include Utah [and, in this case, South Dakota] citizens and residents are sufficient to overcome a motion to dismiss."106 Defendants' motions will be denied to the extent that they seek to dismiss Group 1 EPPs' and IRPs' claims for failure to sufficiently allege they have met citizenship or residency requirements set forth under the antitrust laws of South Dakota and Utah.
e. Rhode Island: Partial Illinois Brick Bar
Group 1 Defendants contend that the divalproex ER and doxycycline EPPs and IRPs cannot seek redress under the Rhode Island antitrust law107 for their claims concerning alleged overcharges incurred before July 15, 2013, arguing that the state's Illinois Brick repealer statute, enacted on that date, does not apply retroactively.108 The Court agrees. Divalproex ER and doxycycline EPPs and IRPs have not cited a decision that would support a conclusion to the contrary. Courts that have considered the question have determined that the Rhode Island statute is prospective, not retroactive.109 Divalproex ER and doxycycline EPPs and IRPs may not recover for any alleged overcharges incurred before the Rhode Island Illinois Brick-repealer statutes took effect, but may proceed with their claims for alleged overcharges incurred on or after July 15, 2013.
2. STATE CONSUMER PROTECTION CLAIMS
Group 1 EPPs' and IRPs' state consumer protection claims rest on the same allegations as the direct purchasers' underlying federal antitrust claims which the Court has already determined sufficient to support plausible antitrust claims. As with Group 1 EPPs' and IRPs' state antitrust claims, Group 1 Defendants argue that many of their state consumer protection claims should be dismissed for failure to state a claim.
Group 1 EPPs respond that the same "detailed and extensive factual allegations" that support their federal antitrust claims also "demonstrat[e] that Defendants engaged in an unfair, deceptive and unconscionable scheme to fix prices and allocate markets, thereby causing harm to consumers and third-party payers in each state, who paid supracompetitive prices and were deprived of the benefits of free and open competition."110 Likewise, Group 1 IRPs assert that Defendants' alleged "deceptive conduct regarding pricing is actionable as an unfair or unconscionable trade practice, independent of any antitrust cause of action."111
Group 1 EPPs and IRPs have the better argument. Their Complaints contain detailed factual allegations that make plausible their claims that Group 1 Defendants engaged in unfair competition and they need not reiterate these facts in their consumer protection law counts.112 The Court considers Defendants' additional state specific arguments for dismissal of Group 1 EPPs' and IRPs' state consumer protection claims below.
a. Illinois Brick Does Not Preclude State Consumer Protection Claims
Group 1 Defendants assert that because the Group 1 EPPs' and IRPs' state consumer protection law claims are just repackaged federal antitrust claims, they cannot be used to circumvent the Illinois Brick prohibition on indirect purchaser claims in Alaska, Florida, Missouri, Montana, New Jersey and South Carolina. They argue that EPPs and IRPs cannot simply dress up their antitrust claim as a consumer protection claim. In response, EPPs argue that Illinois Brick does not nullify (or even address) state consumer protection claims. IRPs assert that if they had made these claims without alleging any antitrust claim, Defendants would have no argument for dismissal and their consumer protection claims should not be dismissed merely because they are pleaded in the same complaint.
The Court agrees with EPPs and IRPs that Defendants' "repackaging" argument is not enough to require dismissal of EPPs' and IRPs' consumer protection law claims. Because "states remain free to permit recovery by indirect purchasers," Group 1 EPPs and IRPs are not barred from pursuing such a recovery under the various state consumer protection laws so long as their allegations are enough to plead the relevant consumer protection violation.113
Further, with respect to EPPs' and IRPs' Florida consumer protection claims, Florida courts have held that the Florida Deceptive and Unfair Trade Practices Act does not have the same indirect purchaser restriction as the state's antitrust law.114 Accordingly, the Court "decline[s] to dismiss the claims for monopolization and attempted monopolization brought under the FDUTPA on Illinois Brick grounds."115 Similarly, Illinois Brick does not bar EPPs' or IRPs' claims under the Alaska Unfair Trade Practices and Consumer Protection Act,116 the Missouri Merchandising Practices Act,117 the Montana Unfair Trade Practices and Consumer Protection Act118, the New Jersey Consumer Fraud Act,119 or the South Carolina Unfair Trade Practices Act.120
b. State Consumer Protection Statutes Permit Claims for Anticompetitive Conduct
Defendants make a similar argument that the consumer protection laws of Arkansas, the District of Columbia, Florida, Georgia, New Mexico, Rhode Island, and West Virginia do not cover Group 1 EPPs' and IRPs' claims that Defendants engaged in anticompetitive conduct because "those laws do not encompass actions based on allegations of an antitrust conspiracy."121 Group 1 EPPs and IRPs respond that courts have liberally construed these statutes to include conduct that would also be covered by antitrust laws.122 They also argue that "these states model their consumer protection statutes on the Federal Trade Commission (`FTC') Act, which encompasses claims based on antitrust violations."123
Defendants have not made a persuasive argument as to why Group 1 EPPs and IRPs cannot assert consumer protection claims under the laws of these states simply because they also assert antitrust claims.124 Whether they can ultimately prove a consumer protection claim separate and apart from their antitrust claims is not a question for resolution at this stage of the litigation.
c. Class Action Bars Under State Consumer Protection Laws
Group 1 Defendants also challenge certain of Group 1 EPPs' and IRPs' claims under the consumer protection laws of Alaska, Georgia, Montana, South Carolina, and Utah, arguing that the relevant state laws do not permit them to proceed with their consumer protection claims in a class action.125 The Court will consider their challenges with respect to each state law.
First, a class action bar does not require dismissal of Group 1 EPPs' Utah consumer protection claims. The Utah Consumer protection law "does not prohibit class actions; rather, it provides that class members may only seek actual, not statutory, damages."126
Further, Group 1 EPPs and IRPs allege that Defendants have engaged in unfair competition or unfair, unconscionable, or deceptive acts or practices in violation of Alaska Statute § 45.50.471, et seq., a consumer protection statute that does not include a provision restricting class action claims.127 Arguing that the Group 1 EPP and IRP Alaska consumer protection claims are subject to a class action bar, Defendants instead cite a decision that relies on a provision of the separate Alaska antitrust statute, Alaska Statute § 45.50.577(i).128 Group 1 EPPs' and IRPs' Alaska consumer protection claims therefore are not subject to dismissal because of a class action bar.
Further still, Defendants seek to dismiss Group 1 EPPs' and IRPs' Georgia consumer protection claims, citing the class action bar in the Georgia Fair Business Practices Act, which provides that "[a]ny person ... may bring an action individually, but not in a representative capacity...."129 However, Group 1 EPPs' and IRPs' complaints do not specifically assert claims under the Georgia Fair Business Practices Act.130 Instead, their complaints allege that "Defendants have engaged in unfair competition or unfair, unconscionable, or deceptive acts or practices in violation of the Georgia Uniform Deceptive Trade Practices Act, Georgia Code § 10-1-370, et seq."131 That statute does not include the same class action bar as the Georgia Fair Business Practices Act. In the absence of such a bar, the Court will not dismiss Group 1 EPPs' or IRPs' Georgia consumer protection claims on that basis. Nevertheless, the Court notes that unlike the Georgia Fair Business Practices Act, which permits a recovery of damages,132 the sole remedy available under the Georgia Uniform Deceptive Trade Practices Act is injunctive relief.133 Accordingly, the Court will dismiss Group 1 EPPs' and IRPs' Georgia Uniform Deceptive Trade Practices Act claims to the extent that they seek monetary relief for such claims.
Finally, Defendants argue that class action bars preclude Group 1 EPPs' and IRPs' South Carolina134 consumer protection claims and Group 1 EPPs' Montana135 consumer protection claims. Here, as with Group 1 EPPs' and IRPs' Illinois Antitrust Act claims, the analysis depends on whether the relevant state class action bar provisions are procedural or substantive. Defendants contend that the provisions are substantive because they are "intertwined" with the substantive rights granted by the statutes.136 EPPs and IRPs argue that the provisions are procedural — that they affect only how the consumer protection claims are processed.137 There is no controlling authority or a consensus among the District Courts that have considered the effect of these class action bars, and the Court has determined that the class action bar provisions specifically included in the Montana and South Carolina consumer protection laws reflect a substantive policy choice.138 Plaintiffs may not pursue these claims as class claims. To the extent that plaintiffs wish to pursue these claims on an individual basis, they may if they have Article III standing to assert the claims.
d. Purely or Primarily Intrastate Conduct
Group 1 Defendants argue that the consumer protection laws of certain states (Delaware, Florida, Massachusetts, New Hampshire, New York, North Carolina, Vermont) require that Plaintiffs' consumer protection claims arise from purely or primarily intrastate conduct or an in-state injury and that Group 1 EPPs and IRPs have not alleged any misconduct that is specific to these states.139 Group 1 EPPs and IRPs respond that they have alleged that because of Defendants' alleged actions, prices for the Group 1 drugs were elevated, class members made purchases at supracompetitive prices, and competition was suppressed within each state where they assert a consumer protection claim.140 The Court agrees with Group 1 EPPs and IRPs that — at this stage of the litigation — their allegations of a broad nationwide-scheme to fix generic drug prices are sufficient to satisfy the intrastate pleading requirements of the state consumer protection laws under which they pursue their claims.141 Whether the Group 1 EPPs or IRPs will ultimately establish facts sufficient to prove each of their state consumer protection law claims is a question that remains to be addressed later in this litigation.
e. Deceptive or Unconscionable Conduct
Group 1 Defendants also argue that EPPs' and IRPs' claims under the consumer protection statutes of various states fail because their complaints do not sufficiently allege fraud or deception. Specifically, they contend that the consumer protection laws of Arkansas, Colorado, Delaware, Florida, Michigan, Minnesota, New Mexico, New York, North Dakota, South Dakota, and Wisconsin require more than an allegation that "Defendants misrepresented to all purchasers during the Class Period that Defendants' [Group 1 drug] prices were competitive and fair."142 Defendants argue that EPPs' and IRPs' complaints should include allegations of particular "instances where Defendants made such representations."143 They also argue that "the absence of any well-pled facts in support of deceptive or unconscionable conduct ... also infects the Complaints' claims pursuant to the Utah and Virginia consumer protection laws."144
Group 1 EPPs respond that to the extent they are required to plead deceptive conduct under any of the cited statutes, they have done so because their Complaints allege "an illegal price-fixing conspiracy among Defendants, hatched in secret and maintained through deception, during which Defendants misleadingly conveyed to Plaintiffs and the market that pricing for Defendants' products was competitive."145 They also contend that "unconscionable" conduct has been recognized to encompass "a broad swath of activities, including price-fixing conspiracies."146 Group 1 IRPs respond that they have pled facts in support of a finding that Defendants' conduct was unconscionable, explaining that the drug pricing data referenced in their complaints shows that Defendants consistently offered low prices for the Group 1 drugs before the alleged price increases which, they contend increased despite no change in the product or increase in costs for raw materials, labor or overhead.147
At this stage of the litigation, Group 1 EPPs and IRPs have sufficiently alleged that Defendants engaged in deceptive and/or unconscionable conduct to permit their claims to withstand dismissal. First, Group 1 EPPs' and IRPs' consumer protection claims rest on Defendants' alleged unconscionable or deceptive conduct, not on fraud. Therefore, their claims do not require application of the heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure. Further, even if Rule 9(b) does apply to the allegations supporting Group 1 EPPs' or IRPs' consumer protection claims, their allegations would be sufficient to withstand dismissal. To satisfy Rule 9(b), plaintiffs "must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation."148 Group 1 EPPs' and IRPs' Complaints include detailed allegations regarding Group 1 Defendants' trade association memberships, their representation on trade association boards, and attendance at industry gatherings the prices of the Group 1 drugs and the timing of price increases along with detailed allegations regarding the prices of the Group 1 Drugs and the timing and size of alleged price increases. The Complaints are sufficiently detailed to "inject precision" into EPPs' and IRPs' consumer protection claims at this stage of the litigation. Whether Group 1 EPPs or IRPs will be able to meet their burden to show deceptive or unconscionable conduct on the developed evidentiary record at summary judgment or trial is a question for another day.
f. Statutory Definition of a "Consumer"
Group 1 Defendants argue the state consumer protection claims of certain EPPs and IRPs must be dismissed because they do not meet the requirements of statutes that permit suits only by certain types of consumers.149 They also argue that Group 1 EPPs' and IRPs' claims fail under the consumer protection laws of certain states that limit their protections to those who purchased "goods or services primarily for personal, family, or household purposes."150
In response, EPPs note that they and the putative class they represent includes both individuals and third party payers such as employee welfare benefit funds, labor unions, and private insurers.151 And, to the extent that they are not individual consumers, EPPs assert that they fall within the relevant state statutes' definitions of a "consumer" in that they
participate in consumer transactions by paying some or all of the prices charged to individual consumers, and, as a result, pay a portion of any overcharges. These purchases are made for the personal purposes of the patient. [Third party payors] do not purchase drugs for resale, distribute products or act as intermediaries in the distribution chain.152
To the extent that Group 1 Defendants contend that IRPs' North Carolina consumer protection claims should be dismissed, IRPs respond that Defendants have not "cite[d] any authority limiting the statute to consumers who purchased for household purposes only."153 IRPs also assert that their "California consumer protection claims are validly asserted" because they "did indeed purchase the drugs in question."154 In addition, IRPs respond to Defendants' "consumer definition" arguments by voluntarily dismissing their claims under the Michigan and Nevada consumer protection statutes.155
Group 1 EPPs and IRPs have plausibly alleged that they are entitled to recover for state consumer protection violations on behalf of at least some of the named plaintiffs and members of the putative class in each of their Complaints. This is enough to permit their California, District of Columbia, Hawaii, Massachusetts, Michigan, Missouri, Montana, Nevada, Rhode Island, and Vermont consumer protection law claims to proceed.156 Whether EPPs and/or IRPs will ultimately be able to show that they are "consumers" who made purchases that entitle them to recovery under the relevant state laws is a question for resolution later in this litigation.157
The Court will, however, dismiss Group 1 EPPs' and IRPs' claims under the West Virginia Consumer Credit and Protection Act.158 Purchases of generic prescription drugs are the subject of this litigation and in White v. Wyeth, the Supreme Court of West Virginia held "that the private cause of action afforded consumers under West Virginia Code § 46A-6-106(a) does not extend to prescription drug purchases."159
g. Demand Letter Requirement
Defendants move to dismiss clobetasol, digoxin, divalproex ER, and doxycycline EPPs' Massachusetts Consumer Protection Law claims because they have not alleged compliance with pre-filing demand letter requirements.160 The relevant statutory provision encourages settlement by means of a "written demand for relief" to be mailed to a defendant before an action is filed.161 Massachusetts statute's notice requirement — designed to encourage settlement — is procedural and not substantive in nature.162 The Court declines to dismiss the relevant Massachusetts consumer protection claims on the basis of this argument.
3. STATE UNJUST ENRICHMENT CLAIMS
Group 1 Defendants seek to dismiss certain of Group 1 EPPs' and IRPs' unjust enrichment claims. The doctrine of unjust enrichment "is founded on the principle that a party which receives a benefit under inequitable circumstances should not be permitted to retain the benefit."163 "Generally speaking, in order to state a claim for unjust enrichment, a plaintiff must allege (1) at plaintiff's expense (2) defendant received [a] benefit (3) under circumstances that would make it unjust for defendant to retain [the] benefit without paying for it."164 The specific requirements to plead unjust enrichment vary by state.
a. Illinois Brick Does Not Bar Unjust Enrichment Claims
Group 1 Defendants first argue that EPPs and IRPs cannot assert unjust enrichment claims under the laws of the 25 jurisdictions that have not repudiated Illinois Brick's prohibition against indirect purchaser damages actions.165 As a result, they contend the Court should dismiss EPPs' and IRPs' unjust enrichment claims brought under the laws of Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, New Jersey, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, Virginia, Washington, and Wyoming.166 EPPs respond that, "[w]hile decisions go both ways, the better reasoned decisions permit unjust enrichment claims in non-Illinois Brick repealer states."167 IRPs argue that "[i]n the absence of authority from state courts precluding the common law cause of action, it is incorrect to assume that any state prevents an unjust enrichment claim."168
As Group 1 EPPs and IRPs argue, the concerns that motivate Illinois Brick — the complexity associated with correctly apportioning recovery among direct purchasers, middlemen, and ultimate consumers,169 are not implicated in the context of unjust enrichment claims because "the very nature of such claims requires a focus on the gains of the defendants, not the losses of the plaintiffs."170 "No reason or logic supports a conclusion that a state's adherence to the rule of Illinois Brick dispossesses a person not only of a statutory legal remedy for an antitrust violation, but also dispossesses the same person of his right to pursue a common law equitable remedy."171 Therefore, Illinois Brick does not require dismissal of the unjust enrichment claims at this time. Plaintiffs are "entitled to plead causes of action in the alternative. Pursuant to Rule 8(d)(2) of the Federal Rules of Civil Procedure, a party `may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.'"172
b. Confer a Direct Benefit
Group 1 Defendants also contend that because Group 1 EPPs' and IRPs' are indirect purchasers, they have not alleged that they conferred a direct benefit on any Defendant as is necessary to plead an unjust enrichment claim under the laws of Alabama, Arizona, the District of Columbia, Florida, Georgia, Idaho, Iowa, Kansas, Maine, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Utah.173
Group 1 EPPs and IRPs respond that Defendants' "direct benefit" argument fails because, in the unjust enrichment context, the term direct refers to a benefit that is not incidental, and not to a requirement that there be privity between the parties.174 They argue that "the chain of distribution in the pharmaceutical industry is short, direct, and well understood ... [and p]rice increases can be directly chased throughout this distribution chain."175 They contend that it is enough that they have alleged "that they overpaid as a result of Defendants' unlawful actions, that Defendants benefited and were enriched from those sales, that the benefits are traceable by overpayments by Plaintiffs and the Damages class, and that it would be inequitable for Defendants to retain those revenues."176
Group 1 EPPs and IRPs have pleaded that they conferred a non-monetary benefit to Defendants — here the act of purchasing the Group 1 drugs or providing funds for the purchase of the Group 1 drugs through reimbursement — in that their actions allowed Defendants to obtain the benefit of increased revenue from the sale of the Group 1 drugs. The EPPs and IRPs have plausibly alleged that their alleged losses from purchasing Group 1 drugs at inflated prices are connected to benefits incurred by Defendants who allegedly conspired to raise the prices of those drugs. "[T]he mere fact that there has been no direct contact between a defendant and the plaintiff does not preclude a finding that the defendant received a direct benefit from that plaintiff."177 At this stage of the litigation, the connection between the EPPs and IRPs and the Defendants is not so attenuated as to render implausible Group 1 EPPs' or IRPs' claims for unjust enrichment. This conclusion arguably comports with the equitable purpose of an unjust enrichment claim.178
c. No Adequate Legal Remedy
Group 1 Defendants also argue that EPPs' and IRPs' Arizona, Minnesota, Montana, New Hampshire, New York, South Dakota, Tennessee, and Utah unjust enrichment claims must be dismissed because they have not pled that they lack an adequate legal remedy.179 Group 1 EPPs' and IRPs' complaints allege that they have no adequate remedy at law.180 At this stage of the litigation, considering:
Rule 8(d)(2)'s permissiveness of alternative pleading, given the [allegations of no adequate remedy at law in the Complaints], and allowing for all inferences to be drawn in favor of Plaintiffs, the Court cannot rule as a matter of law that Plaintiffs have failed to plausibly suggest that there is an absence of an adequate remedy at law.181
The Court will not dismiss these unjust enrichment claims based on Defendant's argument regarding an adequate legal remedy.
C. STATUTE OF LIMITATIONS
To the extent that Defendants seek to dismiss certain of EPPs' and IRPs' claims as being barred by the statute of limitations, their motions are denied. The question of whether any of Plaintiffs' claims are barred by the asserted statute of limitations defenses is more appropriate for resolution at a later stage of the proceedings following more particularized discovery.182
III. CONCLUSION
Consistent with the analysis set forth above, the Court will grant Defendants' motions in part and deny them in part. The Court will dismiss the following claims with prejudice: (1) Group 1 EPPs' and IRPs' claims under the Illinois Antitrust Act; (2) divalproex ER and doxycycline EPPs' and IRPs' claims under the Rhode Island antitrust law to the extent they seek to recover damages for alleged overcharges incurred prior to July 15, 2013; (3) Group 1 EPPs' and IRPs' Georgia Uniform Deceptive Trade Practices Act claims to the extent that they seek monetary relief for such claims; and (4) Group 1 EPPs' and IRPs' claims under the West Virginia Consumer Credit and Protection Act. The Court will also dismiss with prejudice Group 1 EPPs' and IRPs' South Carolina consumer protection claims and Group 1 EPPs' Montana consumer protection claims to the extent that they seek to pursue these claims on behalf of a class. They may proceed with the South Carolina and Montana consumer protection claims on an individual basis if they have Article III standing to assert such claims.
In addition, the Court will dismiss Group 1 EPPs' Alabama antitrust claims, Group 1 EPPs' New Jersey Consumer Protection Act claims, and Group 1 IRPs' claims under the Michigan and Nevada consumer protection statutes because they have indicated their intent to withdraw or voluntarily dismiss these claims in response to Defendants' motions.
The Court otherwise concludes that Group 1 EPPs' and IRPs' state law claims are sufficient to withstand dismissal.
An appropriate Order follows.
