In Re Flonase Antitrust Litigation
815 F. Supp. 2d 867
E.D. Pa.2011Background
- Flonase the drug, FP, is produced by GSK; Indirect Purchaser Plaintiffs are plans that reimburse members for Flonase purchases.
- Plaintiffs allege GSK used sham FDA citizen petitions to delay generic Flonase entry, causing injuries via overcharges.
- Plaintiffs assert state-law UDTP, monopolization, and unjust enrichment claims in purchase states Arizona, Florida, Iowa, North Carolina, and Wisconsin.
- GSK moved for summary judgment on standing, choice of law, and several UDTP and monopolization/unjust enrichment claims.
- Court previously held plaintiffs could show standing in states where they purchased or reimbursed; now addresses sufficiency of standing evidence and applicable law.
- Underlying issue at stake is whether purchase-state laws or home-state laws apply to plaintiffs’ claims and which state has greater interest in enforcement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for purchase-state claims | AFL, IBEW, Painters, IABORI show reimbursements/purchases in purchase states | GSK contends lack of authenticated evidence and insufficient geographic data | Genuine issues of material fact on standing for AFL, IBEW, and Painters (Arizona/Wisconsin); IABORI and Painters Iowa/Florida dismissed for lack of standing |
| Choice of law for indirect-purchaser claims | Purchase-state laws should govern because injuries occurred there | Home-state laws should govern under Pennsylvania choice-of-law rules | Purchase-state laws apply; true conflicts exist and purchase states have greater interest |
| Arizona UDTP claim for Painters | Petitions and potential deception underpin UDTP claim | No evidence petitions deceived consumers | Painters' Arizona UDTP claim dismissed for lack of proof of deception |
| Florida UDTP claims for AFL and IBEW | FDUTPA applies to deceptive/unfair acts by GSK in delaying competition | No evidence petitions were likely to mislead consumers; insufficient standing | AFL/IBEW Florida UDTP claims survive standing; deception element for Florida UDTP not proven, but unfairness/antitrust angle acknowledged; Florida UDTP claim not fully dismissed |
| North Carolina UDTP/Monopolization for IABORI | Evidence shows IABORI reimbursements in NC; claims viable | Receipts unauthenticated; insufficient geographic linkage | IABORI North Carolina claims dismissed for lack of standing/authenticated evidence |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury, causation, redressability)
- Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) (expanded standing principles; non-movant burden on elements)
- Winer Family Trust v. Queen, 503 F.3d 319 (3d Cir.2007) (class standing; individualized standing inquiry in class actions)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (summary judgment standard; burden to show no genuine issue of material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (burden-sh shifting in summary judgment; movant must show absence of genuine issue)
- Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318 (3d Cir.2005) (authentication of evidence; reliance on self-authenticating records possible)
- Hammersmith v. TIG Ins. Co., 480 F.3d 220 (3d Cir.2007) (choice-of-law conflicts; significance of state interests)
- Cipolla v. Shaposka, 439 Pa. 563 (1970) (multi-state choice-of-law analysis; Restatement factors)
- Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941) (original choice-of-law rule in diversity cases)