Plan v. Glaxosmithkline

737 F.Supp.2d 380

SHEET METAL WORKERS LOCAL 441 HEALTH & WELFARE PLAN, et al, Plaintiffs
v.
GLAXOSMITHKLINE, PLC, et al, Defendants.

Civil Action No. 04-5898.

United States District Court,
E.D. Pennsylvania.

Sept. 7, 2010.

Joseph H. Meltzer, Terence S. Ziegler, Barroway Topaz Kessler Meltzer & Check LLP, Radnor, PA, Joshua H. Grabar, Bolognese & Associates, LLC, Philadelphia, PA, Ann D. White, Ann D. White Law Offices, P.C., Jenkintown, PA, for Plaintiffs.

Amy R. Mudge, David P. Gersch, James W. Cooper, Jessica L. Medina, Johnnay D. Schrieber, Bryan M. Marra, Daniel S. Pariser, Gregory M. Gilchrist, Katherine M. Smith, Laura Cofer Taylor, Erika K. Woods, Arnold & Porter, LLP, Darren Nicholson, Washington, DC, Arthur Makadon, Edward D. Rogers, Job Michael Itzkowitz, Leslie E. John, Mark Stephen Stewart, Susanna R. Greenberg, Ballard, Spahr, Andrews And Ingersoll, LLP, Philadelphia, PA, Mark S. Stewart Mark S. Stewart & Associates Fort Worth, TX, for Defendants.

OPINION

STENGEL, District Judge.

In an order dated November 3, 2009, this Court granted in part and denied in part a motion filed by GlaxoSmithKline, et al ("GSK") for judgment on the pleadings, seeking dismissal of the end-payor plaintiffs' amended class action complaint. Plaintiffs, indirect purchasers of Wellbutrin SR, were granted leave to amend their complaint a second time to assert causes of action in those states where they purchased or into which they sent reimbursements for Wellbutrin SR. GSK has filed a motion to dismiss plaintiffs' second amended complaint, which asserts causes of action under eighteen state antitrust and/or consumer protection statutes and under the common law of unjust enrichment in twenty-seven states. For the reasons set forth below, I will grant the motion in part and deny it in part.

TABLE OF CONTENTS

I.	INTRODUCTION	388
II.	STANDARD OF REVIEW	389
III.	PRELIMINARY CHOICE OF LAW QUESTION	390

IV.

DISCUSSION OF STATE LAW CLAIMS

393

A.

Plaintiffs' Monopolization Claims

393

1.	Arizona	393
2.	California	393
3.	Florida	394
4.	Massachusetts	395
5.	Michigan	395
6.	Minnesota	396
7.	Nevada	397
8.	New York	398
9.	North Carolina	400
10.	West Virginia	400
11.	Wisconsin	401

B.

Plaintiffs' Unfair and Deceptive Trade Practice Claims

402

1.	Arizona	403
2.	Arkansas	404
3.	California	405
4.	Colorado	406
5.	Florida	408
6.	Idaho	409
7.	Massachusetts	411
8.	Michigan	412
9.	Minnesota	413
10.	Missouri	414
11.	Nevada	417
12.	New York	417
13.	North Carolina	418
14.	Oklahoma	420
15.	Pennsylvania	421
16.	Rhode Island	422

C.

Plaintiffs' Unjust Enrichment Claims

423

a.

Can the Plaintiffs Bring Unjust Enrichment Claims in States Where Indirect Purchasers Have Been Barred From Pursuing State Antitrust and Consumer Protection Claims?

424

b.	Can the Plaintiffs Bring Unjust Enrichment Claims Where Applicable State Antitrust And Consumer Protection Statutes Do Not Provide for an Equitable Remedy?	426
c.	Do Plaintiffs Need to Show Conferral of a Direct Benefit In Order to Maintain an Unjust Enrichment Claim?	428

1.	Alabama	429
2.	Arkansas	429
3.	Arizona	430
4.	California	430
5.	Colorado	431
6.	Florida	432
7.	Georgia	432
8.	Idaho	433
9.	Iowa	434
10.	Illinois	435
11.	Indiana	435
12.	Kentucky	436
13.	Louisiana	436
14.	Massachusetts	437
15.	Michigan	438
16.	Minnesota	438
17.	Missouri	439
18.	Nevada	440
19.	New York	441
20.	North Carolina	441
21.	Oklahoma	442
22.	Pennsylvania	443
23.	Rhode Island	445
24.	Tennessee	445
25.	Texas	446
26.	West Virginia	447
27.	Wisconsin	447

V.

CONCLUSION

448

I. INTRODUCTION

On December 2, 2009, plaintiffs IBEW—NECA Local 505 Health & Welfare Plan, Sheet Metal Workers Local 441 Health & Welfare Plan, MC—UA Local 119 Health and Welfare Plan, A.F. of L.—A.G.C. Building Trades Welfare Plan, United Food and Commercial Workers Unions and Employers Midwest Health Benefits

Fund, and Sidney Hillman Health Center of Rochester, Inc. ("the plans") filed their second amended class action complaint ("SAC") against GlaxoSmithKline PLC, et al ("GSK"). (Document # 245). These end payor plaintiffs claim GSK filed sham patent litigation against companies seeking to manufacture and market generic versions of Wellbutrin SR in order to maintain their monopoly over sales of the drug.¹

Before the Court is GSK's motion to dismiss the second amended complaint, in which the end-payor plaintiffs assert antitrust, consumer protection, and unjust enrichment claims in states in which they, or the members they represent, purchased Wellbutrin SR. In Illinois Brick Co., et al. v. State of Illinois, et al., 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), the Supreme Court faced the question whether indirect purchasers can sue for overcharges resulting from Sherman Act violations by asserting that those overcharges were passed on through the chain of distribution of a product. It ruled in the negative, finding that its decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), prohibiting antitrust plaintiffs from asserting a pass-on defense in actions brought by direct purchasers applied as well to the offensive use of a pass-on theory. See id. at 735-739, 97 S.Ct. 2061. It reasoned that "permitting the use of pass-on theories ... would essentially transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge from direct purchasers to middlemen to ultimate consumers." Id. at 737, 97 S.Ct. 2061. However, when later faced with the question whether "[the rule articulated in Illinois Brick ] limiting recoveries under the Sherman Act also prevents indirect purchasers from recovering damages flowing from violations of state law, despite express state statutory provisions giving such purchasers a damages cause of action," the Court found that it did not. California v. ARC America Corp., 490 U.S. 93, 100, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989). It reasoned that the decision in Illinois Brick to protect antitrust defendants from multiple liability was not an express federal policy but rather, was an interpretation of section 4 of the Clayton Act. Id. at 105, 109 S.Ct. 1661 ("When viewed properly, Illinois Brick was a decision construing the federal antitrust laws, not a decision defining the interrelationship between the federal and state antitrust laws.").

The indirect purchasers in this case are therefore barred from asserting federal antitrust claims and assert only statutory state law antitrust and consumer protection and state common law unjust enrichment claims.

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in

the complaint as true, and draw all plausible inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir.1984).

It remains true that the Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Rather, the Rules require "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In recent rulings, however, the Supreme Court has rejected language in Conley stating that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561, 127 S.Ct. 1955. Rather, a "complaint must allege facts suggestive of [the proscribed] conduct," Twombly, 550 U.S. at 564, 127 S.Ct. 1955, and it must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

In assessing the merits of a motion to dismiss, courts must be careful to recognize that, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950 (emphasis added). In recognition of these principles, courts must first identify those allegations in a complaint that are mere conclusions and are therefore not entitled to the assumption of truth, and next, consider whether the complaint's factual allegations, which are entitled to a presumption of truth, plausibly suggest an entitlement to relief. Iqbal, 129 S.Ct. at 1950 (emphasis added).

III. PRELIMINARY CHOICE OF LAW QUESTION

Before reaching the substance of plaintiffs' state law claims, I will address GSK's argument that I should apply the law of the plaintiffs' home states, and not the laws of the states in which they purchased Wellbutrin SR, in resolving this motion. When I granted in part and denied in part GSK's motion for judgment on the pleadings, I ruled, in conformity with decisions of Judges McLaughlin and Brody ², that the plans may assert causes of action in states where their members purchased Wellbutrin SR. I granted the end-payor plaintiffs leave to amend their complaint to assert causes of action in those states where their members purchased Wellbutrin SR. It is into these states that the plans sent their members reimbursements for the drug.

GSK now argues that plaintiffs' claims should be governed by the laws of their

home states—the states where they are located.³ It argues that, in deciding...