Global Cure Medicine LLC v. Alfa Pharma LLC
2:19-cv-00588
W.D. Wash.Oct 15, 2020Background
- GCM (Oman importer) purchased 75 vials of Soliris from AlfaPharma (Renton, WA), owned and solely operated by Suliman Al‑Fayoumi, who used aliases (e.g., “Sam Akers,” “Michael Stone”).
- Purchase orders/confirmations required Alexion as manufacturer (U.S. or Europe), minimum 1‑year expiry at delivery, and original Certificates of Analysis (COAs) and Certificates of Origin (COOs).
- Shipments omitted or supplied inconsistent/fabricated COAs/COOs (missing pages, mismatched dates/signatures, batch numbers not in Alexion/ALMAC records); Alexion/ALMAC could not verify authenticity.
- Royal Hospital (Oman) quarantined/rejected the product, canceled its contract, and GCM suffered financial losses and reputational harm; GCM sued for breach of contract, breach of express and implied warranties, fraud, and CPA violations.
- Cross‑motions for summary judgment: court found undisputed breaches as to missing/defective COAs/COOs and warranty terms but denied summary judgment on breach/warranty claims due to disputed timeliness of rejection; denied summary judgment on fraud except for limited factual issues; granted summary judgment for defendants on the CPA claim (dismissed with prejudice); refused to allow an unpleaded negligent‑misrepresentation claim; held Al‑Fayoumi potentially personally liable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract / express & implied warranties | AlfaPharma failed to deliver required original COAs/COOs, valid expiries, and proof of Alexion manufacture | Any missing paperwork was excused by course of dealing or substituted by packing slips; disputes over contract terms | Court: Many contract/warranty breaches are undisputed (missing/defective COAs/COOs); summary judgment denied because timeliness of rejection is a disputed factual issue |
| Fraud | Defendants knowingly misrepresented availability (“in stock”) and the authenticity of COAs to induce purchase | Allegations insufficiently particular or new; lack proof Defendants knew COAs were false or that plaintiff relied on stock statement | Court: Fraud claim adequately pleaded; summary judgment denied — remaining factual disputes: defendants’ knowledge of falsity re COAs/sourcing and GCM’s reliance on “in stock” statement |
| Washington Consumer Protection Act (CPA) | GCM contends deceptive conduct harmed public interest and falls under CPA | Transaction was a private, industry‑specific sale in the pharmaceutical grey market not affecting a substantial portion of the public | Court: CPA claim dismissed with prejudice — conduct did not show public impact required for CPA liability |
| Unpleaded negligent misrepresentation | GCM sought to add negligent misrepresentation via summary judgment briefing | Defendants objected to adding a new claim late and without leave | Court: Denied — GCM may not pursue a new unpleaded negligent‑misrepresentation claim at this stage |
| Personal liability of Al‑Fayoumi | GCM sought to hold the sole owner/officer personally liable for company’s wrongful acts | Defendants argued against personal liability | Court: Denied defendants’ motion; Al‑Fayoumi may be held personally liable because he participated in/controlled the wrongful conduct |
Key Cases Cited
- In re Apple iPhone Antitrust Litig., 846 F.3d 313 (9th Cir. 2017) (Rule 12(c) standards and conversion considerations)
- Fleming v. Pickard, 581 F.3d 922 (9th Cir. 2009) (Rule 12(c) standard—construe complaint for non‑movant)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must raise claim above speculative level)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for complaints)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden allocation)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (nonmovant must present significant probative evidence)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (genuine dispute of material fact standard for summary judgment)
- Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) (Rule 9(b) particularity; cannot lump defendants together)
- Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997) (fraud requires who, what, when, where, how)
- Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778 (1986) (CPA requires impact on public interest)
- Grayson v. Nordic Constr. Co., 92 Wn.2d 548 (1979) (corporate officer personally liable for participating in tortious corporate conduct)