WILLIAM H. ORRICK, United States District Judge.
This case concerns the alleged antitrust and anticompetitive impact of a July 2012 settlement agreement between defendants Endo Pharmaceuticals Inc., Teikoku Seiyaku Co., Teikoku Pharma USA (collectively "Endo defendants") and defendant Watson Pharmaceuticals, Inc. (collectively "defendants"), which terminated Watson's patent litigation lawsuit against the Endo defendants in exchange for the provision of brand-name Lidoderm patches to Watson and giving Watson a period of exclusivity to market its generic version of Lidoderm patches without competition from the Endo defendants' generic patch.
Each state's statutes and case law, to the extent the latter exists, must be analyzed independently to determine the merits of the motion—it is not helpful, for example, to look to cases in Michigan to determine the reach of the consumer protection statute in Maine. Following oral argument on the motion, and having analyzed the pleadings requirements under each of the state law claims at issue, I GRANT in part and DENY in part the motion to dismiss.
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the pleadings fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). A complaint may be
Defendants move only to dismiss the EPPs' claims asserted under Massachusetts and Utah laws. In opposition, the EPPs agree to dismiss their claim under Utah law, asking that the dismissal be without prejudice to amending to bring in a Utah resident as a class representative in the future. EPP Oppo. [Dkt. No. 143] at 1. The EPPs' claim under Utah law is DISMISSED WITHOUT PREJUDICE.
With respect to the EPPs' claim under Massachusetts law, the question is whether End-Payor plaintiff Letizia Galloto, who is bringing her claim under Section 9 of the Massachusetts Consumer Protection Act (CPA), was required to provide pre-suit notice to defendants prior to bringing her claim. Mass. Gen. Law ch.93A § 9. Plaintiff Galloto is a resident of Massachusetts who pleads that she indirectly purchased Lidoderm and/or the generic version at supracompetitive prices during the Class Period. EPP SAC, ¶ 17. In their Opposition, the EPPs argue that Galloto does not need to comply with the pre-suit notice requirement because none of the defendants maintain a place of business or keep assets in Massachusetts. EPP Oppo. at 2; CPA, § 9(3).
Defendants counter that in order to avoid the pre-suit notice requirement, a plaintiff must plead that defendants do not maintain a place of business or keep assets in Massachusetts and the EPP SAC is devoid of those allegations. See Bean v. Bank of New York Mellon, No. CIV.A. 12-10930-JCB, 2012 WL 4103913, at *7 (D.Mass. Sept. 18, 2012) ("Although Bean is not required to allege the legal conclusion that the demand letter requirement is inapplicable, she must allege facts that BNY does not maintain a place of business or keep assets in Massachusetts to show the exception to the demand letter requirement applies to plead a Chapter 93A claim."); Sumner v. Mortgage Elec. Registration Sys., Inc., No. CIV.A. 11-11910-DJC, 2012 WL 3059429, at *6 (D.Mass. July 26, 2012).
Because the EPP SAC does not allege that none of the defendants maintain a place or business or have assets in Massachusetts—which would excuse the pre-suit demand requirement—defendants' motion to dismiss the EPPs' claim under Massachusetts law is GRANTED with leave to amend. The Third Amended Complaint shall be filed within 35 days of the date of this Order.
Defendants challenge GEHA's state law antitrust, consumer protection, and unjust enrichment claims for various states.
In dismissing the EPPs' antitrust and monopolization claims under Rhode Island law, I concluded that the Illinois Brick repealer statute passed by Rhode Island in July 2013 was not retroactive and therefore that the EPPs' claims, including claims for injuries occurring after July 2013, were barred. Dkt. No. 117 at 45. GEHA challenges that conclusion and contends, at a minimum, that injuries resulting from purchases of Lidoderm after July 2013 should be actionable. GEHA Oppo. [Dkt. No. 146] at 4-5. GEHA argues that in cases where there is a continuing conspiracy to violate the federal antitrust laws, "this has usually been understood to mean that each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). That, plus the fact that Rhode Island's antitrust statute prohibits "a construction of the Antitrust Act that is not in harmony with federal antitrust law," Siena v. Microsoft Corp., 796 A.2d 461, 464 (R.I.2002), means, according to GEHA, that it should be able to pursue injuries suffered after July 2013, even though the antitrust conduct at issue was effectuated by the 2012 agreement.
The issue here is not a statute of limitations defense or a continuing conspiracy to commit antitrust conduct between the defendants. It is whether injury that occurred after Rhode Island passed legislation allowing indirect purchaser actions is barred because the only alleged antitrust conduct—the May 2012 agreement—occurred well before the repealer statute was passed. In effect, GEHA is attempting to overcome my prior conclusion that Rhode Island's repealer statute is not retroactive. I conclude, as before, that because the antitrust conduct identified by GEHA occurred before the Rhode Island legislature passed the law allowing for indirect purchaser actions, GEHA's claims under Rhode Island's antitrust law are barred. See, e.g., Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F.Supp.2d 380, 430 (E.D.Pa. 2010) (looking to date of alleged antitrust conduct and not date of damage to determine whether claims were barred because conduct occurred before repealer statute passed); see also In re Relafen Antitrust Litig., 225 F.R.D. 14, 26 (D.Mass.2004) (focusing on alleged date of antitrust conduct, not date of resulting injury, where repealer statutes were prospective in application).
Defendants move to dismiss GEHA's claim under the Alaska consumer protection statute, arguing that it is barred by Illinois Brick. They note that Alaska's antitrust statute was amended in 2003 to clarify that only the Alaska Attorney General may seek monetary relief on behalf of indirect purchasers. Alaska Stat. Ann. § 45.50.577(i) ("Only the attorney general, in a suit brought under this section, may seek monetary relief for injury indirectly sustained for a violation."). They point out that no court has construed Alaska's consumer protection statute (Alaska Stat. Ann. § 45.50.531(a)) to permit claims based on alleged antitrust and monopolization conduct by indirect purchasers. And a judge in this District has addressed this exact question and rejected the plaintiffs' attempt to circumvent the Illinois Brick bar by reliance on the more general Alaska Consumer Protection statute. See In re Dynamic Random Access Memory (Dram) Antitrust Litig., 516 F.Supp.2d 1072, 1108 (N.D.Cal.2007) ("recognizing that this court is not in the best position to decide unresolved legal issues for the state of Alaska, the court chooses to adopt the interpretation that will wreak the least amount of havoc on the existing law in Alaska. To that end, the court therefore declines to read the AUTPCPA to permit indirect purchaser standing, since no court has affirmatively found to the contrary, and since, under the current status of the law in Alaska, only the attorney general may sue for money damages on behalf of indirect purchasers as a result of antitrust violations.").
In opposition, GEHA relies only on the broad language of the Alaska consumer protection statute and on Fed. Trade Comm'n v. Mylan Labs., Inc., 99 F.Supp.2d 1, 5 (D.D.C.1999). In Mylan, the court simply allowed the Alaska Attorney General to seek restitution on behalf of indirect purchasers under the Alaska consumer protection act for alleged anticompetitive acts. Id. That case was decided prior to the 2003 amendment to Alaska's antitrust statute and rests on the authority of the Alaska Attorney General.
Defendants contend that GEHA lacks standing under section 11 of Massachusetts' Consumer Protection Act because indirect purchasers who are engaged in "trade or commerce" cannot bring claims under section 11 of the Massachusetts CPA. In my November 17, 2014 Order, I dismissed the EPPs' claims under section 11 as to the City of Providence and the Iron Workers District Council or New England Welfare Fund ("Iron Workers," a health and welfare fund) because I found both entities were engaged in "trade or commerce" when paying for the Lidoderm patches on behalf of their employees or members. Dkt. No. 117 at 40-43. In that Order, I recognized that the Massachusetts statute focuses on the persons engaged in the "conduct of any trade or commerce" and that Massachusetts courts had struggled with identifying the line between
GEHA does not attempt to distinguish itself from the Iron Workers. Instead, GEHA asserts that it was not engaged in trade or commerce when purchasing or reimbursing its members because it was acting solely as a "dual end payor along with its plan members in consumer retail transactions." GEHA Oppo. at 7-8, n.15. However, because GEHA did not engage in the transactions for its own "purely personal reasons" but instead acted in its business interests of providing health care coverage for its members, I find that GEHA's purchases were for business reasons that fall within the "business or trade" exception for indirect purchaser actions.
Somewhat relatedly, defendants move to dismiss a number of state law consumer protection claims, arguing that as a health plan GEHA cannot be considered to have purchased Lidoderm patches for "personal, family, or household" purposes as required under various states' statutes. I will only address the arguments regarding the District of Columbia and Montana in this section because I am dismissing the claims for Maine and Pennsylvania on separate grounds (plaintiffs' failure to plausibly allege fraud or deception, as discussed in section 5, below).
The District of Columbia's consumer protection statute allows causes of action on behalf of a "consumer" who "does or would purchase, lease (as lessee), or receive and normally use" consumer goods or services "for personal, household, or family purposes." D.C.Code § 28-3901(a)(2)(B)(i). As explained by the District of Columbia Court of Appeals, "the relevant distinction is one between retail and wholesale transactions. Transactions along the distribution chain that do not involve the ultimate retail customer are not `consumer transactions' that the Act seeks to reach. Rather, it is the ultimate retail transaction between the final distributor and the individual member of the consuming public that the Act covers. Accordingly,
Here the purchaser at issue—the one trying to secure a recovery for its indirect purchases—is GEHA. It is true that GEHA has pled it is a joint "end payor" for the Lidoderm patches, GEHA SAC ¶ 50, and that it has paid retail and mail order pharmacies in the District of Columbia $13,432.85 for Lidoderm patches during the relevant period. Id. ¶ 23. However, GEHA was not part of the "retail" transaction, in terms of deciding to purchase the product or actually purchasing it. It, instead, was required to pay the pharmacies for a portion of the expenses for the patches because its members filled personal prescriptions for Lidoderm patches. Although GEHA played a role in the retail transaction, its own transactions with the pharmacies were more akin to "wholesale" than retail transactions. Following the guidance of courts in the jurisdiction, I conclude that GEHA is not a consumer under the District of Columbia's statute and GEHA's claim is DISMISSED WITH PREJUDICE.
Montana's Unfair Trade Practices and Consumer Protection Act defines a "consumer" as "a person who purchases or leases goods, services, real property, or information primarily for personal, family, or household purposes." Mont.Code Ann. § 30-14-102(1). The statute excludes persons who buy goods for resale. See, e.g., In re Auto. Parts Antitrust Litig., No. 12-MD-02311, 2013 WL 2456612, at *30 (E.D.Mich. June 6, 2013) (automotive dealer plaintiffs could not bring a claim under Montana's UTPCA). In the absence of any authority from Montana, I find that GEHA is not a "consumer" under Montana's statute and I DISMISS WITH PREJUDICE GEHA's claims under Montana law.
Defendants argue that under specific states' statutes, GEHA has failed to allege false, fraudulent, or deceptive conduct on the part of defendants to state a consumer protection claim. GEHA responds that in its SAC it added allegations about defendant Teikoku Seiyaku's fraud on the United States Patent and Trademark Office; specifically that during the prosecution of the `529 Patent, Teikoku failed to disclose multiple instances of prior art which would have prevented the patent from issuing. GEHA SAC ¶¶ 80-114, 227. GEHA also relies more generally on its allegations that defendants deceived the public by selling Lidoderm patches at prices that were not the result of fair and open market competition, but rather the result of the illegal payoffs to Watson. GEHA SAC ¶¶ 124-181.
As the pleading requirements under each state's law differs, I will address each jurisdiction in turn.
The Arkansas Deceptive Trade Practices Act prohibits deceptive and unconscionable trade practices including any "unconscionable, false, or deceptive act or practice in business, commerce, or trade." Ark.Code Ann. § 4-88-107(a)(10). The court in State ex rel. Bryant v. R & A Inv. Co., 336 Ark. 289, 985 S.W.2d 299 (1999) held that the legislature's use of "unconscionable" "illustrates that liberal construction of the DTPA is appropriate" and that section (a)(10) was intended to expand and not "limit the types of unfair trade practices actionable at common law or under other statutes of this state." Id. at 302, 985 S.W.2d 299; see also Baptist Health v. Murphy, 365 Ark. 115, 128 n.6 226 S.W.3d 800 (2006) (Arkansas Supreme Court relying on Black's Law Dictionary to define unconscionable as "an act that `affront[s] the sense of justice, decency, or reasonableness.'").
GEHA relies on Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F.Supp.2d 380, 405 (E.D.Pa.2010) which held that "plaintiffs' allegation that GSK engaged in a scheme designed to maintain its monopoly over the Wellbutrin SR market and prevent generic manufacturers from entering the market does fall under the catch all provision in subsection (a)(10)." See also In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 583 (M.D.Pa.2009) (allowing indirect end users of chocolate to pursue price fixing claims under ADTPA) and In re New Motor Vehicles Canadian Exp. Antitrust Litig., 350 F.Supp.2d 160, 178-179 (D.Me.2004) (finding that allegations of a conspiracy to keep Canadian cars out of the United States' market "unconscionable" under ADTPA, but failure to disclose conspiracy insufficient to constitute "false or deceptive" act). Three judges in this District have likewise held that price fixing allegations are sufficient to state "unconscionable" conduct under the ADTPA. See In re Lithium Ion Batteries Antitrust Litig., Case No. 13-md-2420 YGR, 2014 WL 4955377, *23, 2014 U.S. Dist. LEXIS 141358, *124-125 (N.D.Cal. Oct. 2, 2014) (relying on broad definition of "unconscionable" conduct adopted by Arkansas Supreme Court in Baptist Health v. Murphy as conduct that "affront[s] the sense of justice, decency, or reasonableness," and "includes conduct violative of public policy or statute."); In re Flash Memory Antitrust Litig., 643 F.Supp.2d 1133, 1156-57 (N.D.Cal.2009); see also In re Dynamic Random Access Memory Antitrust Litig., 516 F.Supp.2d 1072, 1108-09 (N.D.Cal. 2007) (allowing indirect purchaser claim to proceed under ADTPA based on allegations that acts were unconscionable, including misleading consumers into believing price were set by a free market and that conduct was substantively unconscionable because it was one-sided and unfairly benefitted defendants at the expense of plaintiffs).
However, three other judges in this District have found that even in light of the broad definition of unconscionability adopted by the Arkansas Supreme Court, in absence of authority from Arkansas courts that the ADTPA extends to price fixing claims, those claims should be dismissed. See In re TFT-LCD Antitrust Litig., 787 F.Supp.2d 1036, 1042 (N.D.Cal. 2011) (addressing Baptist Health but declining to recognize indirect purchaser claim for price fixing "in light of this split among federal authorities, and the lack of any cases from Arkansas state or federal courts recognizing a price-fixing claim under the ADTPA."); In re Static Random Access Memory Antitrust Litig. (SRAM), Case No. 07-md-0819 CW, 2010 WL 5094289, *8, 2010 U.S. Dist. LEXIS
In light of the split in federal authority and the absence of authority from Arkansas, I conclude—as Judges Illston, Wilken, and Alsup have—that the ADTPA does not extend to the monopoly and price inflation claims at issue here. GEHA's allegations regarding Teikoku's conduct at the PTO does not change this conclusion; GEHA has not cited any authority from Arkansas that would extend the reach of the consumer protection statute to allegedly fraudulent conduct that occurred exclusively before the PTO and was not directed to consumers. GEHA's consumer protection claims under Arkansas law are DISMISSED WITH PREJUDICE.
Defendants move to dismiss GEHA's claims under the Idaho Consumer Protection Act, Idaho Code § 48-601, arguing that the antitrust conduct alleged does not fall within any of the categories of conduct specifically prohibited by the ICPA. Idaho Code § 48-603. GEHA responds that under Section 48-601(17)—prohibiting "any act or practice which is otherwise misleading, false, or deceptive to the consumer"—the allegations regarding Teikoku's fraud in securing the patent and defendants' overall scheme to charge inflated prices are covered.
Defendants point out that in State ex rel. Wasden v. Daicel Chem. Indus., Ltd., 141 Idaho 102, 107-08, 106 P.3d 428, 433-34 (2005), the Idaho Supreme Court concluded that "there is nothing in the wording of Idaho Code § 48-603 indicating that the list of conduct is merely illustrative. Price-fixing is not listed in § 48-603 as conduct that constitutes either an unfair method of competition or an unfair or deceptive act or practice." The court also specifically rejected the argument that the price-fixing conduct at issue (price fixing by sorbate manufacturers) could be covered by 48-603(18), which prohibits "unconscionable method, act or practice in the conduct of trade or commerce, as provided in section 48-603C" because the antitrust conduct was not directed to consumers. Following Wasden, Judge Hamilton in In re Static Random Access Memory (SRAM) Antitrust Litig., 580 F.Supp.2d 896, 907 (N.D.Cal.2008), dismissed indirect purchaser claims under the Idaho statute because the Idaho Supreme Court "expressly held that indirect purchasers may not bring suit under the Idaho Consumer Protection Act."
Neither the Wasden Court nor Judge Hamilton considered whether antitrust conduct could be pursued under Section 48-603(17), as asserted by GEHA here. Like section 48-603C, examined by the Idaho Supreme Court in Wasden, Section 48-603(17) prohibits practices which are "misleading, false, or deceptive to the consumer." (emphasis added). Defendants argue that none of the conduct alleged—neither Teikoku's alleged fraudulent conduct before the PTO nor the agreement to settle the patent litigation in exchange for payments of product and a period of generic exclusivity to Watson—was "misleading, false, or deceptive" to consumers.
Two conflicting cases have addressed this question. GEHA relies on In re DDAVP Indirect Purchaser Antitrust Litig.,
Sheet Metal Workers is more persuasive. Contrary to the DDVAP court's attempt to distinguish Sheet Metal Workers, the same subsection of 48-603(17) was at issue and discussed in both cases. I agree with the Sheet Metal Workers court that to be actionable, the conduct at issue must be directed to consumers. None of the conduct alleged here satisfies that requirement. GEHA's claims under the Idaho statute are DISMISSED WITH PREJUDICE.
Under Maine's Unfair Trade Practices Act, "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful." 5 M.R.S. § 207. The Maine Supreme Court has held "[i]n pricing cases under the Act the inquiry is whether the price has the effect of deceiving the consumer, or inducing her to purchase something that she would not otherwise purchase." Tungate v. MacLean-Stevens Studios, Inc., 714 A.2d 792, 797 (Me.1998). Courts in this District have relied on Tungate to dismiss antitrust-based consumer protection claims where higher prices alleged could not have deceived or induced consumers into buying a product. See, e.g., In re TFT-LCD Antitrust Litig., 586 F.Supp.2d 1109, 1126 (N.D.Cal.2008) ("the complaint does not allege that the prices of LCD products had the effect of deceiving plaintiffs or inducing them to purchase something they would not otherwise purchase."); In re Graphics Processing Units Antitrust Litig., 527 F.Supp.2d 1011, 1031 (N.D.Cal. 2007) ("Here, the higher prices plaintiffs allegedly paid for GPUs because of the price-fixing conspiracy could not have induced plaintiffs to purchase them. Arguing that higher prices induced consumers to make purchases simply does not make sense.").
At oral argument, GEHA attempted to get around Tungate by arguing that in addition to inflated prices, the allegations here also include the intentional delay of competing generic products. But GEHA admits in its SAC that the result of the agreement to delay the Endo defendants' generic was inflated prices. GEHA SAC ¶ 17.
GEHA also relies on its allegations that defendants' deceptive conduct with respect to the PTO is sufficient "deception" to allow this claim to go forward. GEHA Oppo. at 10-11, n.20. However, GEHA presents no case law discussing what constitutes "deceptive" conduct under the Maine statute to support its augment that deceptive conduct before the PTO—which allegedly resulted in the issuance of the `529 Patent—suffices.
The Michigan Consumer Protection Act (MICPA) prohibits specifically identified "[u]nfair, unconscionable, or deceptive methods, acts or practices." Mich. Comp. Laws § 445.903(1). Defendants cite In re New Motor Vehicles Canadian Exp. Antitrust Litig., 350 F.Supp.2d 160, 176 (D.Me. 2004), which rejected the argument that defendants' failure to inform consumers of the antitrust conspiracy (to keep out Canadian cars, resulting in inflated new car prices in the United States) was actionable "deception" under MICPA. Id. at 189.
GEHA relies on In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 64 F.Supp.3d 665, 700-01, 2014 WL 6792663 *28, (E.D.Pa. Dec. 3, 2014). However, in In re Suboxone, the court refused to dismiss the end payor's claim under MICPA because the complaint adequately alleged fraudulent and deceptive conduct; namely that (i) defendant fabricated a safety issue regarding its drug for the purpose of impairing generic competition and eliciting monopoly proceeds from consumers, (ii) broadcast the false safety issue to the FDA, doctors, industry participants, and the public, and (iii) made misrepresentations in a Citizen Petition to the FDA. Id. at 699-701, 2014 WL 6792663 at *27-28. Here, the only falsity relied on by GEHA is defendants' conduct in prosecuting of the `529 Patent. There is not the sort of wide-spread dissemination of false information to the public that was alleged in In re Suboxone.
I conclude that the deceptive conduct alleged is more similar to the omissions at issue in New Motor Vehicles as opposed to the broad dissemination of false safety concerns at issue in In re Suboxone. GEHA's claims under Michigan's statute are DISMISSED WITH PREJUDICE.
Minnesota's Uniform Deceptive Trade Practices Act (MUDTPA) prohibits acts involving "deceptive trade practice[s]." Minn.Stat. § 325D.44. GEHA argues that its allegations satisfy subsection (13), which makes actionable conduct that "similarly creates a likelihood of confusion or of misunderstanding." Minn.Stat. § 325D.44(13). The only case relied on by GEHA is State by Humphrey v. Philip Morris, Inc., 551 N.W.2d 490, 497 (Minn. 1996). However, that case is inapposite because it addressed a different question (standing) and rested on far different allegations regarding deception.
Looking more broadly at the types of actionable conduct under MUDTPA—prohibiting
GEHA also relies on Minnesota's Prevention of Consumer Fraud Act (MPCFA). See GEHA SAC ¶ 243. Defendants did not mention MPCFA in their motion to dismiss, but in reply argue that they inadvertently omitted a citation to MPCFA and that for the same reasons that the MUDPTA claim must be dismissed, so must the MPCFA claim. Reply at 11, n. 15. The MPCFA prohibits "fraud, misrepresentation, deceptive practices" "with the intent that others rely thereon in connection with the sale of any merchandise." Minn.Stat. § 325F.69. I find that in absence of any authority interpreting the breadth of MPCFA, the alleged fraudulent and deceptive conduct at issue—which occurred only in negotiations between defendants and before the PTO—is not the type of fraud, misrepresentation or deceptive practices covered by MPCFA. GEHA's claim is DISMISSED WITH PREJUDICE.
Oregon's Unlawful Trade Practices Act, Or.Rev.Stat. § 646.605, prohibits "any unconscionable tactic in connection with selling, renting or disposing of real estate, goods or services, or collecting or enforcing an obligation." Or.Rev.Stat. § 646.607. "Unconscionable" tactics "include, but are not limited to, actions by which a person" "(a) [k]nowingly takes advantage of a customer's physical infirmity, ignorance, illiteracy or inability to understand the language of the agreement; (b) [k]nowingly permits a customer to enter into a transaction from which the customer will derive no material benefit; (c) [p]ermits a customer to enter into a transaction with knowledge that there is no reasonable probability of payment of the attendant financial obligation in full by the customer when due." Or.Rev.Stat. Ann. § 646.605(9).
Defendants argue that because the conduct alleged—conspiracy to maintain prices/profits and fraud on the PTO—are not the sorts of acts covered by the definition of "unconscionable" in the statute, GEHA cannot state a claim under OUTPA. GEHA responds that the types of unconscionable acts listed in the statute are examples but not an exclusive list.
In In re Dynamic Random Access Memory (Dram) Antitrust Litig., 516 F.Supp.2d 1072, 1115 (N.D.Cal.2007), the court did not address the "unconscionability" subsection of the statute, but instead the catchall provision which prohibits "other unfair or deceptive conduct in trade or commerce." Or.Rev.Stat. § 646.608(u). The court concluded that the horizontal price fixing allegations did not state a claim under OUTPA because none "of the
While a different subsection of the statute is being asserted by GEHA in this case, Judge Hamilton's approach makes sense. GEHA has failed to cite to any authority applying the "unconscionable" tactics provision and the conduct alleged here is not sufficiently similar to the examples provided in the statute of actionable unconscionable acts. In absence of authority from Oregon, I will not extend the statute to cover the allegations of GEHA asserted here. GEHA's claim is DISMISSED WITH PREJUDICE.
The Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL) prohibits specific unfair methods of competition and unfair or deceptive trade practices, including "[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." 73 Penn. Stat. § 201-2(4)(xxi). GEHA argues that its allegations are actionable under the catchall provision, and for support relies on Grimes v. Enter. Leasing Co. of Phila., LLC, 66 A.3d 330, 332 (Pa.Superior Ct.2013), reversed on other grounds by 105 A.3d 1188, 1190 (Pa.2014).
In Grimes, the allegations were not simply that defendants charged a consumer "inflated prices," but that defendants made intentionally inflated the cost of the damage to a rental car, failed to explain justification for the inflated charges, and improperly sought to collect those charges. Id. at 336-37. There are no similar facts alleged here to demonstrate that defendants' conduct created a "likelihood of confusion or of misunderstanding" on behalf of purchasers of Lidoderm patches. See also In re New Motor Vehicles Canadian Exp. Antitrust Litig., 350 F.Supp.2d 160, 200 (D.Me.2004) (finding the language of the UPTCPL catchall section "requires fraud or deception" and allegations of conspiracy to prevent less expensive Canadian vehicles from entering the American market insufficient to state a claim). Accordingly, in the absence of authority from Pennsylvania to extend the statute to cover GEHA's allegations here, its claim is DISMISSED WITH PREJUDICE.
Under South Dakota's Deceptive Trade Practices and Consumer Protection statute, it is a deceptive practice to "[k]nowingly act, use, or employ any deceptive act or practice, fraud, false pretense, false promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise." S.D. Codified Laws § 37-246(1). In In re New Motor Vehicles Canadian Exp. Antitrust Litig., 350 F.Supp.2d 160 (D.Me.2004), the court determined that the SDDTPA required proof of an affirmative misrepresentation, and the allegations in that complaint—that consumers suffered injury because defendants conspired to keep Canadian cars out of the market—were insufficient to state a claim of fraud or deception under the statute. Id. at 202-03.
This analysis is consistent with Nw. Pub. Serv., a Div. of Nw. Corp. v. Union Carbide Corp., 236 F.Supp.2d 966 (D.S.D.2002), which held that "proof of an intentional misrepresentation or concealment of a fact on which plaintiff relied and that caused an injury to plaintiff" is required to state a claim under § 37-24-6. Id. at 973-74. Here, there are no allegations that defendants made affirmative
GEHA relies on In re DDAVP Indirect Purchaser Antitrust Litig. v. Ferring Pharms. Inc., 903 F.Supp.2d 198 (S.D.N.Y. 2012). There, the court concluded that because defendants "made misrepresentations to the PTO and FDA, which in turn allowed Defendants to manufacture and market DDAVP to consumers on the premise that the patent underlying DDVAP was legally obtained, Plaintiffs were `adversely affected' by the fraud committed by Defendants within the meaning of the SDDTPA when they relied on such representations and paid supra-competitive prices for the drug." Id. at 229 (misrepresentations to the PTO included submitting declarations from purported non-interested parties who were in fact interested/aligned with defendants' interests and FDA citizen petition was alleged to be baseless). However, the only South Dakota case the DDAVP court relied on is Brookings Mun. Utils., Inc. v. Amoco Chem. Co., 103 F.Supp.2d 1169 (D.S.D. 2000), which is distinguishable. The Brookings court held that where affirmative misrepresentations were made by defendant and passed along to the consumers by a third-party, those misrepresentations were nonetheless actionable. See id. at 1178 ("Defendants cannot escape liability to plaintiffs for their alleged misrepresentations simply because they did not make any statements directly to plaintiffs. Defendants may be liable to plaintiffs, even if plaintiffs only received misrepresentations through" a third party."). Here, there are no similar allegations that affirmative misrepresentations or concealment of a fact were passed along to or relied upon by GEHA.
Following the more in-depth analysis of the New Motor Vehicles and Brookings cases, GEHA's claims under South Dakota law are DISMISSED WITH PREJUDICE.
West Virginia's Consumer Credit and Protection Act prohibits "unfair methods of competition and unfair or deceptive acts or practices" and defines trade or commerce as "advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state." W. Va.Code § 46A-6-102. One judge in this District has found that general antitrust allegations are insufficient to establish a violation of WCCCPA. In re Dynamic Random Access Memory Antitrust Litig., 516 F.Supp.2d 1072, 1118 (N.D.Cal.2007) ("reading the list literally, nothing on the list targets what might be called traditional antitrust conduct—e.g., price-fixing and market allocation such as that alleged by plaintiffs here, or conduct otherwise constituting a horizontal or vertical restraint on trade or commerce. Rather, the list is aimed at conduct that, in one way or another, `creates a likelihood of confusion or of misunderstanding' with respect to goods, services or businesses, or involves deceptive, false, or misleading statements and representations in connection with goods, services and businesses."). The court also concluded that "[w]hile the WVCCP expressly states that the list of enumerated acts and practices is not meant to be exclusive, it is nonetheless clear that the statute is aimed at conduct different from the allegations of price-fixing asserted by plaintiffs here." Id. at 1072.
The DRAM Court also expressly distinguished the one case relied on by GEHA here, FTC v. Mylan Lab., Inc., 99 F.Supp.2d 1 (D.D.C.1999). In Mylan, the court allowed direct and indirect purchaser claims for antitrust conduct to continue under WVCCP. Id. at 10. The DRAM
In absence of any West Virginia cases defining unfair methods of competition and unfair or deceptive acts or practices to include the types of antitrust allegations and fraud on the PTO allegations asserted here, I will follow Judge Hamilton's analysis in DRAM. GEHA's claim under West Virginia law is DISMISSED WITH PREJUDICE.
Defendants contend that for two states, GEHA has failed to allege sufficient intrastate commerce to state actionable consumer protection claims. I disagree.
Defendants argue that New York's consumer protection statute, N.Y. Gen. Bus. Law § 349, applies only to commercial conduct occurring within New York and for it to apply, "the transaction in which the consumer is deceived must occur in New York." Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314, 324, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002). Defendants argue that because GEHA's SAC does not allege any conduct took place in New York, this claim must be dismissed.
The court in Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 263 F.R.D. 205 (E.D.Pa. 2009) dismissed plaintiffs' claim under New York consumer protection statute because plaintiffs' allegations of fraud on patent examiners and filling of sham litigation was not deception that took place in New York. Id. at 214, 746 N.Y.S.2d 858, 774 N.E.2d 1190. However, in In re Suboxone, 64 F.Supp.3d 665, 2014 WL 6792663, 2014 U.S. Dist. LEXIS 167204 (E.D.Pa. Dec. 3, 2014), the court concluded that allegations that overcharges for drugs occurred in New York, were sufficient to establish an intrastate nexus. Id. at 701-02, 2014 WL 6792663 at *29; see also In re DDAVP Indirect Purchaser Antitrust Litig. v. Ferring Pharms. Inc., 903 F.Supp.2d 198, 228 (S.D.N.Y.2012) (finding that defendants' fraudulent conduct before the PTO and FDA in effort to maintain drug prices "was plausibly `imbued with a degree of subterfuge,' . . . . and the fraud was plausibly designed to prevent competitors' entry into the market, thereby allowing Defendants to overcharge consumers for DDAVP, Plaintiffs have stated a claim under Section 349.").
Here, GEHA alleges that it paid retail and mail order pharmacies in New York $21,464.46 for Lidoderm. GEHA SAC ¶ 23. That is sufficient to state an intra-state nexus under New York's statute.
Defendants move to dismiss GEHA's claim under North Carolina's Unfair and Deceptive Trade Practices Act (NCUDTPA) because only conduct that has a "substantial effect on in-state business" is actionable, and the allegations here amount only to incidental, not substantial, effect.
The "substantial effects" test was first applied under the NCUDTPA by a district court in North Carolina considering whether a foreign corporation who had no operations and suffered no injury in North Carolina could bring an unfair practices claim under NCUDTPA consistent with jurisdictional and commerce clause concerns. See The `In' Porters, S.A. v. Hanes Printables, Inc., 663 F.Supp. 494, 501 (M.D.N.C.1987) (finding that the UDPTA is not available "to a foreign plaintiff suing a resident defendant over alleged foreign injuries having a negligible effect, if any,
As GEHA points out, the NCUDTPA itself does not contain or mandate a "substantial effects" analysis. The case law relied on by defendants is inapposite. Like The `In' Porters, S.A. v. Hanes Printables, Inc., a number of the cases on which they rely did not address claims of in-state injury by plaintiffs.
Here, GEHA has alleged in-state injury and that defendants' products were being sold in North Carolina. GEHA SAC ¶ 23. That is sufficient at this juncture to state a claim under the NCUDTPA.
In my November 17, 2014 Order, I reviewed the split in authority among district
GEHA does not rely on any authority that I did not address in my prior opinion or address the district court decisions I relied on. It cannot make an "end run" around Illinois Brick by relying on its unjust enrichment claim for states that have not enacted an Illinois Brick repealer statute absent authority from the courts of those states that would allow unjust enrichment claims to proceed. Therefore, GEHA's unjust enrichment claims under the laws of Alaska, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Montana, New Jersey, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, Virginia, Washington, and Wyoming are DISMISSED WITH PREJUDICE.
Relatedly, defendants argue that GEHA's "autonomous" unjust enrichment claims must be dismissed where the recovery is prohibited by Illinois Brick or under the particular requirements of a state's consumer protection statute. See, e.g., In re Flonase Antitrust Litig., 692 F.Supp.2d 524, 542 (E.D.Pa.2010) (discussing distinction between autonomous and parasitic unjust enrichment claims and concluding that allowing autonomous unjust enrichment claims where plaintiffs were unable to state antitrust or consumer protection claims "would undermine state legislative policies and an entire body of substantive law."); In re New Motor Vehicles Canadian Exp. Antitrust Litig., 350 F.Supp.2d 160, 208 n.13 (D.Me.2004) (same).
I agree that to the extent GEHA has been unable to assert a claim under a state's antitrust or consumer protection statute, GEHA cannot assert an unjust enrichment claim unless it has support for that proposition from authority in that state. Without such support, I will not allow an autonomous claim for restitution to proceed.
Defendants make a number of additional arguments why GEHA's remaining unjust enrichment claims fail under specific state laws. I address each in turn.
Defendants assert that Arizona requires that a "direct benefit" pass from a plaintiff to the defendant to state an unjust enrichment claim under Arizona law. Defendants rely on In re Refrigerant Compressors Antitrust Litig. (Compressors
GEHA relies on In re Auto. Parts Antitrust Litig., 50 F.Supp.3d 836, 863-65, 2014 WL 4793848, *21 (E.D.Mich. Sept. 25, 2014), which denied a motion to dismiss an unjust enrichment claim under Arizona law, finding that the "critical inquiry" was not whether a benefit was conferred directly, but whether plaintiff "`can establish the relationship between his detriment and the defendant's benefit "flow from the challenged conduct."'" Id. at 863-65, 2014 WL 4793848 at *21 (quoting In re Cardizem CD Antitrust Litig., 105 F.Supp.2d 618, 669 (E.D.Mich.2000)).
I will follow In re Auto Parts and D.R. Ward, which relied on cases decided by Arizona courts. GEHA has adequately alleged a traceable benefit to defendants from their co-payments for Lidoderm patches.
In my November 17, 2014 Order, I dismissed the EPPs' unjust enrichment claim under California law finding that the weight of authority in California state and federal court decisions is that unjust enrichment does not state an independent claim under California law. Dkt. No. 117 at 50. GEHA argues that in light of the split on this issue, the court should reconsider and allow its claim to go forward. Oppo. at 23-24. In absence of any newly decided authority on the issue, I will not reconsider. GEHA's stand-alone claim for unjust enrichment under California law is DISMISSED WITH PREJUDICE.
Defendants contend that GEHA fails to allege a sufficient direct benefit under District of Columbia law, but their authorities are not helpful. Defendants rely on Minebea Co. v. Papst, 444 F.Supp.2d 68 (D.D.C. 2006), where the court dismissed the unjust enrichment claim because plaintiff never "afforded any direct benefit" to the defendant. Id. at 186. However, no benefit was conferred because there was no evidence plaintiff ever paid anything to the defendant with respect to the patent portfolio at issue and the defendant actually paid substantial consideration for the patents to a third-party. Id. Defendants also cite Compressors II, 2013 WL 1431756, at *26, which dismissed an unjust enrichment claim under District of Columbia law without
GEHA relies on In re TFT-LCD (Flat Panel) Antitrust Litig., Case No. 07-1827 SI, 2011 WL 4501223, *12, 2011 U.S. Dist. LEXIS 110635, *49 (N.D.Cal. Sept. 28, 2011), which distinguished Minebea Co. and allowed indirect purchasers to pursue their unjust enrichment claims under District of Columbia law despite the lack of a "direct benefit" that defendants claim is required. Id. at *12, 2011 U.S. Dist. LEXIS 110635 at *48-49; see also In re Auto. Parts Antitrust Litig., 50 F.Supp.3d 836, 863-65, 2014 WL 4793848, *21 (E.D.Mich. Sept. 25, 2014) (following In re TFT-LCD and allowing unjust enrichment claims under District of Columbia law to proceed). I find that in absence of cases arising under District of Columbia law that support defendants' proposed narrow definition of direct benefit, the claims under District of Columbia law can proceed.
Defendants contend that under Kansas law, the premise of an unjust enrichment claim is that defendant received a benefit without providing consideration. Because GEHA has not asserted that it failed to receive the Lidoderm patches, defendants argue that GEHA cannot assert this claim. GEHA responds that a plaintiff's unjust enrichment claim is not vitiated where a plaintiff received some consideration (here the Lidoderm patches) as long as the consideration was not adequate, e.g., the defendant was paid more than it should have been and was still unjustly enriched. In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 545 (D.N.J.2004) (Plaintiffs' receipt of valuable medicine for their payments does not, as Defendants contend, bar an unjust enrichment claim."); see also In re Auto. Parts Antitrust Litig., 50 F.Supp.3d 836, 863-65, 2014 WL 4793848, *21 (E.D.Mich. Sept. 25, 2014) ("the Court disagrees with Defendants that the exchange of Bearings for payment bars IPPs' unjust enrichment claims. The issue is whether the transaction was unjust.").
The cases defendants rely on are inapposite, dealing mostly with the situation where a property owner is sued by an unpaid subcontractor hired by a tenant. In Senne & Co. v. Simon Capital Ltd. P'ship, 155 P.3d 1220 (Kan.Ct.App.2007) the court recognized the unremarkable proposition that a "claim for unjust enrichment is that the defendant received a benefit without having paid for it." The court there dismissed the claim for unjust enrichment because the defendant—the mall property owner—had not contracted for plaintiff's construction work (the property lessor had) and had not benefitted from it or from the lessors' failure to pay plaintiff. Id. The court's analysis does not bar the type of unjust enrichment claim at issue here. See also Tradesmen Int'l, Inc. v. U.S. Postal Serv., 234 F.Supp.2d 1191, 1204 (D.Kan.2002) (addressing the "special circumstances" where "under which an unjust enrichment claim may be brought by a subcontractor against an owner, absent privity," may proceed).
Absent any case law on point to support defendants' attempt to limit the unjust enrichment
As defendants point out, in Fenerjian v. Nongshim Co., Ltd, 72 F.Supp.3d 1058, Case No. 13-CV-04115-WHO, 2014 WL 5685562 (N.D.Cal. Nov. 4, 2014), I held that "the transactions and relationships between the indirect purchaser plaintiffs and the defendants"—where plaintiffs indirectly purchased allegedly price-fixed noodles—were "too attenuated to state an unjust enrichment claim under New York law" after considering cases decided by New York's highest court. Id. at *22-23. GEHA does not provide any basis on which to distinguish my conclusion in Fenerjian based on the facts alleged here. Therefore, GEHA's unjust enrichment claim under New York law is DISMISSED WITH PREJUDICE.
There is a split in authority whether North Carolina requires the type of narrowly defined direct benefit proposed by defendants (i.e., direct payment, not through a third-party) to state an unjust enrichment claim. Defendants rely on In re Aftermarket Filters Antitrust Litig., 2010 WL 1416259, at *3 (N.D.Ill. Apr. 1, 2010) and In re Flonase Antitrust Litig., 692 F.Supp.2d 524, 546 (E.D.Pa.2010), both of which adopted a narrow definition of "direct benefit" as requiring a plaintiff to confer a benefit directly on a defendant, and not through a third-party.
However, more recently the court in In re Processed Egg Products Antitrust Litig., 851 F.Supp.2d 867, 932 (E.D.Pa.2012), rejected that argument. In doing so, the court reviewed the North Carolina appellate cases relied on by the Aftermarket and Flonase courts, found those cases to be unpersuasive, and instead relied on North Carolina Supreme Court cases which had taken a more expansive view of unjust enrichment claims under North Carolina law. In re Processed Egg Products Antitrust Litig., 851 F.Supp.2d 867 at 931-32 (discussing Booe v. Shadrick, 322 N.C. 567, 369 S.E.2d 554 (1988) and Embree Const. Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 411 S.E.2d 916 (1992), which did not require a benefit to flow from plaintiff directly to defendant). This analysis is consistent with the decision of a court in this district. In In re TFT-LCD Antitrust Litig., 599 F.Supp.2d 1179 (N.D.Cal.2009), the court likewise rejected the narrow definition applied in Effler and accepted the broader application of unjust enrichment from the North Carolina Supreme Court in Booe. Id. at 1190, 369 S.E.2d 554. The court concluded that plaintiffs' allegations that they conferred a benefit on defendants by paying higher prices for LCD products than they would have absent the alleged price-fixing conspiracy, was sufficient under North Carolina law. Id. at 1190.
I agree with the more expansive analysis applied by the courts in In re TFT-LCD Antitrust Litig. and In re Processed Egg Products Antitrust Litig.—which rely on North Carolina Supreme Court cases—and find that the allegations here are sufficient under North Carolina law.
Defendants argue that a "direct benefit" from a plaintiff directly to a defendant
GEHA does not distinguish these district court cases or cite any more recent North Dakota authority. Accordingly, I will follow the courts that have addressed this issue directly and DISMISS WITH PREJUDICE GEHA's unjust enrichment claim under North Dakota law.
Similar to the argument raised with respect to Kansas law, defendants contend that under Tennessee law as long as a defendant has provided any benefit (here the Lidoderm patches), plaintiffs are precluded from bringing unjust enrichment claims, even if the amount paid was inflated. In support, defendants cite cases that stand for the general proposition that a claim for unjust enrichment is not stated where defendant paid compensation to a third party (usually under a contract), even though the plaintiff did not receive compensation. See, e.g., McKee v. Meltech, Inc., No. 10-2730, 2011 WL 1770461, at *10 (W.D.Tenn. May 9, 2011) (where wife of plaintiff under contract with, and compensated by defendant, plaintiff could not being unjust enrichment claim because he was not directly compensated); Weather Doctor Servs. Co. v. Stephens, 2001 WL 849540, at *1 (Tenn.Ct.App. July 27, 2001) (where property owner defendant testified he had paid contractor for materials, subcontractor could not allege an unjust enrichment claim against property owner); Paschall's, Inc. v. Dozier, 219 Tenn. 45, 57, 407 S.W.2d 150 (1966) ("Consequently, if the landowner has given any consideration to any person for the improvements, it would not be unjust for him to retain the benefit without paying the furnisher.").
As I discussed with respect to Kansas, these cases are different from the situation alleged here, where GEHA alleges that it paid inflated prices for the Lidoderm patches and that it would be unjust for defendants to retain the excess. See In re Auto. Parts Antitrust Litig., 50 F.Supp.3d 869, 895-96, 2014 WL 4793850, at *19 (E.D.Mich. Sept. 25, 2014) (sustaining unjust enrichment claim under Tennessee law where "allegations create an inference that the consideration was not reasonable, valuable, or adequate."); see also In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 545 (D.N.J.2004) ("Plaintiffs' receipt of valuable medicine for their payments does not, as Defendants contend, bar an unjust enrichment claim.").
Defendants' motion to dismiss is GRANTED in part and DENIED in part.
The EPPs' consumer protection claim under Utah law is DISMISSED without prejudice. The EPPs' consumer protection claim under Massachusetts law on behalf of plaintiff Gallato is DISMISSED WITH LEAVE TO AMEND. Any amended complaint shall be filed within thirty days of this Order.
GEHA's antitrust claim under Rhode Island law is DISMISSED WITH PREJUDICE.
GEHA's consumer protection claims under Alaska, Arkansas, District of Columbia, and Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, Oregon, Pennsylvania, South Dakota, West Virginia law are DISMISSED WITH PREJUDICE.
GEHA's unjust enrichment claims under Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Montana, New Jersey, New York, North Dakota, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, Virginia, Washington and Wyoming law are DISMISSED WITH PREJUDICE.
In all other respects, defendants' motion is DENIED.
