This multidistrict litigation raises the following question: can a pharmaceutical' company marketing brand-name prescription drugs be subject to antitrust liability for engaging in what has been referred to as a “product hopping” scheme? Plaintiffs urge that the answer to this question is “yes,” and allege that as the period of exclusivity on the brand-name drug, Su-boxone, expired and generic versions of that drug were to become available, Reck-itt Benekiser, Inc. effectuated inconsequential changes to the Suboxone dosage form to prevent competition from generic formulations. More specifically, Plaintiffs, the Direct Purchasers of Suboxone (“Direct Purchasers”) and the End Payors of Suboxone (“End Payors”) claim that Reck-itt and its affiliates (“Reckitt”) switched from sublingual Suboxone tablets to a sub-lingual Suboxone film for the purpose of stymying generic competition. This switch was allegedly accompanied by Reckitt falsely disparaging the tablet through fabricated safety concerns and ultimately removing Suboxone tablets from the market just as generic Suboxone tablets were able to begin competing. Reckitt is also alleged to have manipulated FDA regulations to delay the entry of generic Subox-one’ onto the market, thereby unlawfully maintaining a monopoly in violation of § 2 of the Sherman Act and state law. According to Plaintiffs, Reekitt’s conduct negatively affected competition and resulted in ongoing overpayments by consumers.
Before me is Reekitt’s motion to dismiss which essentially argues that Plaintiffs’ complaint describes nothing more than new product development and marketing. Reckitt is correct that thé development and marketing of new products is typically viewed as procompetitive. However, due to market characteristics unique to the' pharmaceutical industry, I conclude that some of Plaintiffs’ claims do plausibly allege antitrust violations and should survive Defendants’ motions to dismiss. This opinion explains the bases for my ruling.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts alleged by Plaintiffs are as follows:
Under the Federal Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. §§ 301 et seq., a manufacturer that creates a new drug must obtain the approval of the Food and Drug Administration (“FDA”) to sell the drug by filing a New Drug Application (“NDA”). Under the Drug Price Competition and Patent Term Restoration Act, Pub.L. No. 98-417 (1984), commonly known as the Hatch-Waxman Act, certain pioneer drugs can gain periods of exclusivity. However, Hatch-Waxman also simplified the process by which generic manufacturers can compete with brand-name drugs on the market through the filing of an Abbreviated New Drug Application (“ANDA”). For example, Hatch-Waxman eliminated the need for generic manufacturers seeking ANDA approval to duplicate clinical studies that had already been performed by a bioequivalent brand-name drug manufacturer. (Id. at ¶¶ 38-42.)
In order for a drug to be deemed bioe-quivalent, the generic product must be shown to deliver the same amount of active ingredient into a patient’s blood stream for the same amount of time as the brand-name drug. ANDA filers demonstrating bioequivalence generally seek to have their product deemed “AB-rated” to the brand-name drug. This rating means that in addition to being bioequiyalent, the two drugs are also pharmaceutically equivalent — which includes such considerations as having the same active ingredient, the same strength, the same route of administration and the same dosage form. A pharmacy may not substitute a generic drug for a brand-name drug unless the generic is AB-rated. (Id. at ¶¶ 42-44.)
Competition from low cost AB-rated generic drugs saves consumers billions of dollars a year. When an AB-rated generic drug enters the market, the brand-name company often suffers a rapid, steep decline in sales — on average 80% within the first year. AB-rated generic competition enables direct and indirect purchasers to obtain both the generic drugs and the brand-name drugs at substantially lower prices. (Id. at ¶¶ 9, 51, 55.)
The FDA approved Reckitt’s NDA for Suboxone tablets in 2002. Although Reck-itt did not have a patent for Suboxone tablets, it was able to obtain a seven-year period of exclusivity from the FDA because Suboxone was found to be an orphan drug.
A. Description of Alleged Conduct
1. Product-Hopping: Development of Suboxone Film and the Alleged Destruction of the Tablet Market
The NDA for Suboxone film was submitted on October 20, 2008 and was approved August 30, 2010. The patent for Suboxone film — patent 8,017,150 (“the '150 patent”) — expires September 2023. Generic Suboxone tablets cannot be AB-rated to branded Suboxone film due to the differences in,dosage form — that is, sublingual tablet versus sublingual film. Therefore, a pharmacist cannot provide a patient with generic Suboxone tablets when a patient has a prescription for Suboxone film. (Id. at ¶¶ 81, 88.)
Plaintiffs allege that there are few differences between Suboxone film and Su-boxone tablets, and that the film is not superior to the tablets. In support of this assertion, Plaintiffs claim that the two products are so similar that Reckitt submitted safety and efficacy studies performed on Suboxone tablets when seeking approval of the Suboxone film NDA. The two products are alleged to have equivalent bioavailability, meaning that the products release the same amount of active ingredients into a patient’s bloodstream. Although Reckitt indicated in its NDA that the film’s individual packaging reduced the risk for accidental pediatric exposure to the drug, Plaintiffs assert that the evidence provided by Reckitt on this issue was flawed. Indeed, Plaintiffs argue that the film may present increased risk for accidental pediatric exposure because the filmstrip dissolves more quickly than the tablet, and therefore may be more difficult for a child to spit out in the event of exposure. Plaintiffs also allege that the film has a higher risk of abuse than the tablets. (Id. at ¶¶ 82-86, Exs. A, B.)
Plaintiffs explain that'once the FDA approved the Suboxone film NDA in 2010, Reckitt launched a fraudulent sales and marketing campaign against the tablet for the purpose of diverting sales from the tablet, which would soon face generic competition, to the patent-protected film. Reckitt sales associates allegedly met with physicians and, in addition to promoting Suboxone film, disparaged Suboxone tablets and warned of false safety concerns. It is also alleged that Reckitt publicly announced the removal of Suboxone tablets from the market for these fabricated safety reasons, although it did not actually remove the tablets until six months later— once the generic Suboxone ANDAs obtained FDA approval. Reckitt also reportedly raised the price of its tablets in relation to the film formulation despite the fact that the film was more expensive to manufacture and package. Plaintiffs conclude that Reckitt was successful in its scheme, and had managed to convert 64% of all
2. Reckitt Allegedly Delayed ANDA Approvals by Feigning Cooperation in the REMS Process
On December 22, 2011, the FDA approved a Risk Evaluation and Mitigation Strategy (“REMS”)
Pharmaceutical companies Aetavis, Inc. and Amneal (“the Generics”) filed ANDAs for generic Suboxone tablets in 2009 and May 2011 respectively. On January 6, 2012, the FDA sent all sponsors of pending ANDAs for Suboxone tablets a notification letter stating that all branded and generic Suboxone products would be subject to a Single Shared REMS program (“SSRS”). ANDA filers were directed to contact Reckitt to collaborate on the creation of an SSRS program. The FDA gave a compliance date of May 6, 2012 for the SSRS. Plaintiffs explain that the FDA gave a short turn-around time, assuming that the recently approved REMS performed by Reckitt would simply be amended to add the bioequivalent generic products. (Id. at ¶¶ 98-102.)
Plaintiffs allege that Reckitt used the SSRS as a means to undermine and delay generic entry by making unnecessary, unprecedented and unreasonable demands on the generic companies as a condition precedent to Reckitt’s cooperation in the SSRS, despite the fact that such delay tactics are expressly prohibited by 21 U.S.C. § 355-l(f)(8). Reckitt reportedly turned down numerous invitations to participate in meetings with the Generics, and refused to engage in substantive discussions until the Generics agreed to a number of conditions the Generics found unfavorable, including “an upfront agreement that all manufacturers would share the costs of product liability for future potential lawsuits.” It is further alleged that Reckitt refused to share non-public information from its REMS program until its demands were met. (Id. at ¶¶ 105-06.)
The Generics complained to the FDA about Reckitt’s alleged delay tactics and a meeting was held on June 18, 2012. The FDA acknowledged during this meeting that it could not compel Reckitt to share its non-public REMS program, and suggested that.the Generics develop a new SSRS without using Reckitt’s information. Although the FDA implored Reckitt and the Generics to work together in good faith and to not attempt to block or delay, Plaintiffs claim that Reckitt’s obstructionist actions continued, and that Reckitt refused to cooperate unless the Generics agreed to provide Reckitt veto authority or a super-majority vote on all issues relating to the SSRS. Two days before the SSRS was submitted, Reckitt allegedly argued for the first time that an important element of the REMS had been omitted and refused to sign the SSRS. Ultimately, the Generics sought a waiver for approval of
3. Reckitt Allegedly Files a Sham Citizen Petition and Fraudulently Delays That Filing to Maximize Delay of Generic Tablet Approval
Plaintiffs explain that Reckitt publicly announced the withdrawal of Suboxone tablets from the market due to false safety concerns on September 25, 2012, just prior to the Generic REMS waiver request. On that same date, Reckitt filed a Citizen Petition with the FDA for the alleged purpose of blocking approval of the pending Suboxone ANDAs on purported safety grounds. The Petition requested that the FDA take three actions: (1) refrain from approving any BPN/NLX NDA or ANDA for the treatment of opioid addiction that did not include a targeted pediatric exposure education program, a condition not required for branded Suboxone tablets; (2) refrain from approving applications for BPN/NLX for opioid addiction that lacked unit-dose packaging, which was also not a condition for the branded Suboxone tablets; and (3) not approve any BPN/NLX ANDA for addiction treatment until the FDA determined whether Reckitt had discontinued Suboxone tablets for safety reasons. (Id. at ¶¶ 113-15.)
Plaintiffs urge that Reckitt’s Citizen Petition was a sham because the FDA had no statutory or regulatory authority to grant much of the relief requested. For example, the FDA has no authority to require ANDA filers to mimic non-approved labeling and REMS materials in order to obtain ANDA approval.
In addition to alleging that the Citizen Petition was a sham, Plaintiffs also argue that it included a false certification regarding its timeliness and support. Citizen Petitions require the filer to certify when they first learned, of the issues raised. Reckitt certified that it learned of the risk of accidental pediatric exposure on September 15, 2012 even though its own study indicated that Reckitt had learned of the risk several years earlier. (Id. at ¶¶ 132-40.)
The FDA denied Reckitt’s Citizen Petition on February 22, 2013, noting that Reckitt’s announcement that it was withdrawing Suboxone tablets, “given its close alignment with the period in which generic competition for this product was expected to begin, • cannot be ignored.” The FDA further referred Reckitt’s conduct to the Federal Trade Commission (“FTC”) for antitrust investigation. (Id. at ¶¶ 141-43.)
Plaintiffs assert that once the Citizen Petition was denied, the FDA immediately granted final approval of the ANDAs of two generic manufacturers, Amneal and Actavis, for generic Suboxone tablets.
4. Alleged Effects of Reckitt’s Scheme
Plaintiffs urge that Reckitt’s multifaceted scheme outlined above foreclosed or severely limited generic competition to branded Suboxone. In addition to delaying the Generic’s entry onto the market, Plaintiffs claim that by the time the generic ANDAs were approved, Reckitt had coerced physicians to largely convert to prescriptions for Suboxone film, which cannot be substituted for a generic product. Plaintiffs assert these actions have caused an ongoing antitrust injury to the Direct Purchasers, the End Payors, and the public at large by preventing Generics from meaningfully and efficiently competing with Reckitt. Plaintiffs conclude that these actions were all designed to maintain monopoly profits in violation of the Sherman Act and state law. (Id. at ¶¶ 145-50, 156.)
B. Specific Causes of Action
The Direct Purchasers seek damages and injunctive relief through the following claims, all of which are alleged to violate § 2 of the Sherman Act: (1) unlawful maintenance of monopoly power through an overarching scheme to prevent or delay generic competition (“Count I”); (2) unlawful maintenance of monopoly power by conversion of the market from tablet to film formulation (“Count II”); (3) unlawful maintenance of monopoly power by intentionally delaying the SSRS process and violating 21 U.S.C. § 355 — 1(f)(8) (“Count III”); (4) unlawful maintenance of monopoly power by filing a sham Citizen Petition (“Count IV”); and (5) unlawful maintenance of monopoly power by fraudulently delaying the filing of the Citizen Petition (“Count V”). (Id. at ¶¶ 166-200.)
The End Payors assert the following causes of action: (1) monopolization and monopolistic scheme under state law (listing 29 state statutes) (“Count I”); (2) attempted monopolization under state law (listing 29 state statutes) (“Count II”); (3) unfair and deceptive trade practices under state law (listing 28 state statutes) (“Count III”); (4) injunctive and declaratory relief under § 16 of the Clayton Act for Reckitt’s violations of § 2 of the Sherman Act (“Count IV”); and (5) unjust enrichment under state law (under 48 states and the District of Columbia) (“Count V”). (EP Compl. ¶¶ 163-99.)
Reckitt has filed motions to dismiss each of the Plaintiffs’ amended complaints.
II. STANDARD OF REVIEW
In deciding a motion to dismiss, the court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” DeBenedictis v. Merrill Lynch & Co., Inc., -
A. Pleading under Rule 8(a)
Under Rule 8(a), in order to survive a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
B. Pleading under Rule 9(b)
Rule 9(b) provides, “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). The pleadings must be specific enough to “place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior.” Seville Indus. Mach. Corp. v. Southmost Mach. Corp.,
III. LEGAL ANALYSIS A. Overview-Reckitt’s Motion to Dismiss the Direct Purchasers’ Complaint
All of the Direct Purchasers’ claims invoke § 2 of the Sherman Act, which states: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations” is guilty of an offense and subject to penalties. 15 U.S.C. § 2.
The following are elements of a § 2 monopolization claim: “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” United States v. Grinnell Corp.,
The plaintiff bears the burden of demonstrating that a monopolist’s conduct
Reckitt raises four core arguments for dismissal of the Direct Purchasers’ claims: (1) Count II, relating to the introduction of Suboxone Film, fails because the law presumes that the introduction of new and different products increases competition; (2) Count III, relating to Reckitt’s alleged failure to cooperate during the REMS period, fails because the Supreme Court has unequivocally held that a monopolist has no duty to deal with its competitors; (3) Counts IV and V, relating to Reckitt’s Citizen Petition, should be dismissed because the Citizen Petition was not a sham and did not delay Generic market entry; and (4) Count I, which asserts a claim for the combined effect of Reckitt’s actions, fails because none of the underlying actions violate the antitrust laws, and unsuccessful claims cannot be combined to state a successful one. Each of these arguments is addressed below.
B. Count II — Introduction of Suboxone Film
Reckitt argues that the introduction of a new product by definition increases competition in the relevant market, and therefore cannot be found to be anticompetitive. Reckitt further asserts that Plaintiffs acknowledged in their complaints that Su-boxone film made improvements to the tablets which are procompetitive, not exclusionary. Finally, Reckitt argues that any harm that would arise from the introduction of a new product is inflicted upon competitors, not competition itself, and therefore is not the type of injury the antitrust laws were created to address.
1. Does the “Product-Hopping” Conduct Alleged Constitute Exclusionary Conduct?
“ ‘Anticompetitive conduct’ can come in too many different forms, and is too dependent upon context, for any court or commentator ever to have enumerated all the varieties.” West Penn Allegheny Health Sys., Inc. v. UPMC,
Because ordinarily innovation will also inflict harm upon competitors, “courts
In support of its argument that Plaintiffs have failed to establish exclusionary conduct under a “product hopping” theory, Reckitt relies heavily upon Walgreen Co. v. AstraZeneca Pharmaceuticals L.P.,
The court determined that AstraZene-ca’s actions did not violate § 2 of the Sherman Act and granted the defendants’ motions to dismiss because marketing Nexium did not eliminate choices available to the consumer. Prescription Prilosec was never removed from the market, allowing consumers to obtain prescription Prilosec, and by extension generic Prilo-sec, if they preferred that product. Id. at 150-52. The court also found that the plaintiffs had not established an injury because “[t]he fact that a new product siphoned off some of the sales from the old product and, in turn, depressed sales of the generic substitutes for the old product” does not establish an antitrust injury, as it does not interfere with the generics’ freedom to compete. Id. at 152.
Plaintiffs assert that Walgreen is factually distinguishable from the case before me, and urge that I follow the reasoning set forth in Abbott Laboratories v. Teva Pharmaceuticals USA, Inc.,
The defendants in TriCor raised a nearly identical argument as Reckitt does here: that the introduction of a new product was procompetitive per se and that improvements had been made from one formulation to another. Id. at 420. The court recognized that deference is ordinarily given to innovation and the creation of new products. However, given the unique nature of the pharmaceutical drug market and the actions taken by the defendants in removing old formulations from the market and preventing consumer choice, the court determined that the plaintiffs had set forth sufficient facts to establish exclusionary conduct and survive a motion to dismiss. Id. at 421-22. The court reasoned that the nature of the pharmaceutical drug market warranted applying the rule of reason approach identified in United States v. Microsoft Corp.,
The defendants in TriCor further argued that their product-hopping could not be exclusionary because, although generic TriCor capsules could not be exchanged for a brand-name TriCor prescription, the generics were not foreclosed from marketing their own TriCor formulations. The court rejected this argument, finding that complete foreclosure from the market was not the appropriate standard. Instead, the court determined that the generics could not
provide generic substitutes for the current TriCor formulation, which is alleged to be their cost-efficient means of competing in the pharmaceutical drug market. That opportunity has allegedly been prevented entirely by Defendants’ allegedly manipulative and unjustifiable formulation changes. Such a restriction on competition, if proven, is sufficient to support an antitrust claim in this case.
Id. at 422.
The conduct alleged in the case before me seems to fall somewhere between that alleged in Walgreen and TriCor.
Although the issue of product-hopping is relatively novel, what is clear from the case law is that simply introducing a new product on the market, whether it is a superior product or not, does not, by itself, constitute exclusionary conduct. The key question is whether the defendant combined the introduction of a new product with some other wrongful conduct, such that the comprehensive effect is likely to stymie competition, prevent consumer choice and reduce the market’s ambit. This analysis must be undertaken with the somewhat unique characteristics of the pharmaceutical market in mind.
Plaintiffs allege that the wrongful conduct included raising false safety concerns and disparaging Suboxone tablets, both of which played an important role in Reckitt’s success in switching the market from tablets to film. Reckitt counters that false disparagement of a product cannot give rise to antitrust liability under Santana Products Inc. v. Bobrick Washroom Equipment, Inc.,
Having carefully reviewed Plaintiffs’ complaint, I find that the facts presented sufficiently allege that the disparagement of Suboxone tablets took place alongside “coercive” measures. The threatened removal of the tablets from the market in conjunction with the alleged fabricated safety concerns could plausibly coerce patients and doctors to switch from tablet to film. A patient that preferred the tablets despite the safety concerns might be further persuaded to switch to the film, believing that their favored product would soon be removed from the market.
Reckitt also argues that Plaintiffs’ allegations of false disparagement are insufficient because the complaints do not plead fraud with sufficient specificity to satisfy Rule 9(b) of the Federal Rules of Civil Procedure. See Lum v. Bank of America,
Plaintiffs claim that in conjunction with the switch from tablet to film in 2010, Reckitt “implemented a massive fraudulent sales and marketing campaign to convert all or substantial [Suboxone] prescriptions from tablets to film.” (DP Compl.
With regard to the withdrawal of Subox-one tablets from the market, Reckitt focuses on the fact that the defendants in TriCor engaged in repurchasing existing supplies held by pharmacies and changing the NDDF code to obsolete — facts which are not alleged here. Reckitt asserts that because it did not engage in this conduct, the Generics are not now, nor have they ever been, foreclosed from selling their products, which undermines Plaintiffs’ claims of exclusionary conduct.
While Reckitt did not repurchase existing supplies held by pharmacies or change the NDDF code on the tablets to obsolete, the withdrawal of Suboxone tablets is alleged to have created a similar effect of reducing consumer choice. While Plaintiffs acknowledge that the Generics have not been completely foreclosed from the market, neither were the generics in TriCor. As noted previously, complete foreclosure is not the standard articulated by the Third Circuit for establishing anticom-petitive conduct. Rather, “[t]he test is not total foreclosure, but whether the challenged practices bar a substantial number of rivals or severely restrict the market’s ambit.” Dentsply,
Plaintiffs have plausibly alleged that various market forces unique to the pharmaceutical industry make generic substitution the cost-efficient means of competing
For all of these reasons, as it relates to their “product-hopping” allegations, I find that Plaintiffs have plausibly pleaded exclusionary conduct, as required for an antitrust claim.
2. Does the Complaint Sufficiently Plead an Injury to Competition?
Having determined that Plaintiffs have sufficiently alleged exclusionary conduct as it relates to the “product-hopping” scheme, I now turn to whether an antitrust injury has been properly pleaded. Reckitt argues that Plaintiffs have failed to establish an antitrust injury on Count II because the introduction of Suboxone film in and of itself is not alleged to have delayed Generic entry into the marketplace. Reckitt urges that the only injury that could have been caused by the film’s introduction stems from an increase in competition.
Lost profits attributable to increased competition is not the type of injury the antitrust laws were designed to redress. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
Plaintiffs allege that by'wrongfully suppressing generic competition on the market, they were forced to pay more for Suboxone products than they otherwise would have paid. “When a monopolist’s actions are designed to prevent one or more new or potential competitors from gaining a foothold in the market by exclusionary, i.e. predatory, conduct, its success in that goal is not only injurious to the potential competitor but also to competition in general.” LePage’s,
Defendants further allege that the Direct Purchasers do not have standing because there is a more direct victim of Reekitt’s conduct — the Generic manufacturers. Section 4 of the Clayton Act, which allows treble damages for violation of the antitrust laws, states as follows: “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States ... and shall recover threefold the damages by him sustained.” 15 U.S.C. § 15. The Direct Purchasers who are overcharged as a result of an antitrust violator’s actions are generally considered to have antitrust standing. See Illinois Brick Co. v. Illinois,
In conclusion, I find that the Direct Purchasers’ claim under Count II for introduction of the Suboxone film in the context of an alleged product-hopping scheme should survive the motion to dismiss stage.
C. Count III — Unlawful Maintenance of Monopoly Power by Intentionally Delaying the SSRS Process and Violating 21 U.S.C. § 355-l(f)(8)
Reckitt asserts that Count III of the Direct Purchaser’s complaint should be dismissed because the SSRS process, where the parties tried to work together to establish the safe use of the drug, was simply a course of dealing and the antitrust laws do not obligate Reckitt to interact with its competitors on terms they find' favorable. Reckitt garners support from a line of Supreme Court cases on the “duty to deal.”
In Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP,
Verizon was accused of intentionally failing to -fill operations support orders in violation of the Act and was investigated by the FCC for its conduct. Customers of Verizon’s competitors filed suit for antitrust violation, alleging that Verizon had engaged in an anticompetitive scheme to discourage customers from becoming or remaining customers of competing companies. Id. at 402-04,
The Supreme Court reaffirmed these principles in Pacific Bell Telephone Co. v. Linkline Communications, Inc.,
Trinko and Linkline instruct that the antitrust laws do not create a duty for competitors to work together. Statutes and regulations requiring cooperation between rivals do not alter this analysis; in fact, regulation indicates that antitrust scrutiny is not necessary or prudent. The Court noted that although the right for a monopolist to refuse to deal with its competitors is not unqualified, it has “been very cautious in recognizing such exceptions, because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying anticompetitive conduct by a single firm.” Trinko,
The main exception to the line of cases holding that competitors do not have a duty to deal is Aspen Skiing Co. v. Aspen Highlands Skiing Corp.,
The Court ultimately held that the right to refuse to deal was not unqualified, and that a reasonable jury could find that Aspen Skiing’s conduct was exclusionary. In reaching this conclusion, the Court significantly relied upon the prior cooperation between the two competitors that spanned many years. The Court noted that there was significant consumer demand for the four-mountain pass and many consumers felt that they could not go to the mountain of their choice once that pass had been eliminated. The Court determined that by prohibiting Highlands’ use of its lift tickets, even at market price, Aspen Skiing’s sole motivation was to harm Highlands. Id. at 601, 605-09,
Here, throughout the SSRS process, the FDA directed the parties to work together in good faith to develop a REMS program that would ultimately lead to ANDA approval for the Generics. The parties engaged in negotiations, and Reckitt is alleged to have taken unreasonable positions and utilized delay tactics to keep Generics off of the market for as long as possible. This SSRS process, in which competitors were required to work together, should be analyzed in light of the precedent outlined above.
Plaintiffs rely heavily upon 21 U.S.C. § 355 — 1(f)(8), which requires the parties to work together in good faith and not use the SSRS process to block or delay ANDA approval.
The antitrust laws do not impose a duty on Reckitt to aid the Generics in obtaining expeditious approval of an ANDA. While other courts have indicated that antitrust liability may attach where the SSRS process is manipulated to completely preclude a generic from filing an ANDA, that is not the situation presently before me. To the extent that § 355 — 1(f)(8) prohibits name-brand drug manufacturers from manipulating the process to cause delay, this statute provides for increased FDA oversight and diminishes the need for antitrust scrutiny. Accordingly, I will grant Reekitt’s motion as to Count III of the Direct Purchasers’ complaint.
D. Counts IV & V — Unlawful Maintenance of Monopoly Power by Filing a Sham Citizen Petition and Unlawful Maintenance of Monopoly Power by Fraudulently Delayiny the Fil-iny of the Citizen Petition
Reckitt next argues that Counts IV and V of the Direct Purchasers’ complaint must be dismissed for two reasons: (1) Plaintiffs have failed to adequately plead that the Citizen Petition was a sham, such that it would be subject to antitrust scrutiny; and (2) even if the Citizen Petition was a sham, a statute forbid the FDA from delaying ANDA approval while the Petition was decided, and therefore, no injury could have resulted. I address these arguments in turn.
1. Have Plaintiffs Plausibly Pleaded that the Citizen Petition was a Sham?
“Those who petition government for redress are generally immune from antitrust liability.” Prof'l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc.,
21 U.S.C. § 355(q)(l)(E) provides that “[i]f the Secretary determines that a [Citizen] [P]etition ... was submitted with the primary purpose of delaying the approval of an application and the petition does not on its face raise valid scientific or regulatory issues, the Secretary may deny the petition at any point based on such determination.” When Reckitt’s Citizen Petition was initially submitted, several Generics requested that the FDA deny it as frivolous and intended for delay under this Section, but the FDA declined to do so. (DP Compl., Exs. E, G.)
Reckitt urges that I find as a matter of law that the Citizen Petition was not a sham based upon the Petition itself and the FDA’s response thereto. Whether petitioning activity is a sham is generally a question for the jury. In re Flonase Antitrust Litig.,
While the FDA did not dismiss Reckitt’s Citizen Petition outright as baseless and having been submitted purely for the purpose of delay, §'355(q)(l)(E) does not require such an action. It states that the FDA may deny a petition at any point based on a finding of frivolousness, but it does not require summary denial. Thus, I cannot assume that the Petition must have merit' simply because the FDA did not exercise its right to dismiss it outright. Moreover, upon denying the Citizen Petition, the FDA referred Reckitt to the FTC, and noted that the timing of Reck-itt’s activities with announcing the withdrawal of Suboxone tablets and the filing of the Citizen Petition “given its close alignment with the period in which generic competition for [that] product was expected to begin, cannot be ignored.” (DP Compl., Ex. G, pp. 15-16.)
The FDA acknowledged in its ruling that it had no authority to grant much of Reckitt’s requested relief. (See supra p. 676.) The FDA cannot require ANDA filers to mimic non-approved labeling and REMS materials in order to obtain approval, due to 21 U.S.C. § 355(j)(4)(G) and 21 C.F.R. § 314.127(a)(7). (See DP Compl., Ex. G., p. 12 (“The FD & C Act requires that labeling for an ANDA be the same as the labeling ‘approved for the
In short, the FDA denied all of Reckitt’s requested relief. Much of the relief sought was not even available to the FDA to grant, and Reckitt sought an investigation of its own reasons for withdrawing Suboxone tablets at a time when the tablets remained on the market. As such, Plaintiffs have plausibly pleaded that the Petition was objectively baseless in that no reasonable litigant could have realistically expected success on the merits. I also find that Plaintiffs have adequately alleged that Reckitt had the subjective intent to interfere with the business of a competitor through the use of the petitioning process.
2. Have Plaintiffs Established an Antitrust Injury Regarding the Citizen Petition?
I next consider Reckitt’s argument that the filing of a Citizen Petition did not cause antitrust injury. 21 U.S.C. § 355(q)(l)(A) states that the Secretary shall not delay approval of an NDA or ANDA because of a Citizen Petition unless “the Secretary determines, upon reviewing the petition, that a delay is necessary to protect the public health” and that “[Consideration of the petition shall be separate and apart from review and approval of any application.”
Plaintiffs have alleged that despite this statutory framework, delays still occur and did occur in this instance. Reckitt responds that Plaintiffs’ failure to articulate that the FDA violated 21 U.S.C. § 355(q)(l)(A) in the complaints is fatal to their claim. Reckitt also presents documents subject to judicial notice showing that the FDA approved the Generics’ AN-DAs ten days after the last amendment was submitted, indicating that the amendments were the reason for any delays in ANDA approval, not the Citizen Petition. Finally, Reckitt presents an FDA ruling on a citizen petition filed by Novartis Pharmaceuticals Corporation, where the FDA noted that the petition lacked merit and had been responsible for a 25-day delay in the approval of AND As. (Reckitt Mot. to Dismiss DP Compl., Ex. D, p. 12 (“We note that the 25-day delay in approval of the ANDAs was entirely the result of the timing of Novartis’s Petition, rather than its merits”).) Reckitt argues that the lack of any such comment in the FDA’s ruling here demonstrates that it did not cause a delay.
I find that the complaints plausibly allege that the Citizen Petition caused antitrust injury by delaying Generic entry into the market. The complaints state that Reckitt filed the Citizen Petition for the purpose of delaying Generic competition, and but for the filing of the Citizen Petition, “competitors would have begun marketing generic version of Suboxone well
Furthermore, I find that the Novartis petition presented by Reckitt actually supports Plaintiffs’ argument. The FDA clearly stated in its ruling that delays still occur despite the mandate of 28 U.S.C. § 355(q)(l)(A). As to Reckitt’s argument that any delays in approval of the ANDA were due to amendments made by the Generics themselves, this is a classic factual issue that is properly determined by a fact finder.
For the reasons stated above, I conclude that Plaintiffs have sufficiently pleaded an antitrust injury, and accordingly, Reckitt’s motion to dismiss Counts IV and V of the Direct Purchasers’ complaint is denied.
E.Count I — Unlawful Maintenance of Monopoly Power Through an Overarching Scheme to Prevent or Delay Generic Competition
Reckitt argues that Plaintiffs cannot combine multiple unsuccessful claims to state one overarching successful claim. However, as I find that three out of the four claims discussed above will survive the motion to dismiss, I need not address this argument. Reckitt’s motion will thus be denied as to Count I of the Direct Purchasers’ complaint.
F.Overview — The End Payors’ Complaint and Reckitt’s Motion to Dismiss
The facts alleged in the End Payors’ complaint are largely indistinguishable from those found in the Direct Purchasers’ complaint. However, in contrast to the Direct Purchasers, the End Payors raise the following claims: (1) monopolization and monopolistic scheme under state law (listing 29 jurisdictions) (“Count I”); (2) attempted monopolization under state law (listing 29 jurisdictions) (“Count II”); (3) unfair and deceptive trade practices under state law (listing 28 jurisdictions) (“Count III”); (4) injunctive and declaratory relief under § 16 of the Clayton Act for Reckitt’s violations of § 2 of the Sherman Act (“Count IV”); and (5) unjust enrichment under state law (listing 49 jurisdictions) (“Count V”).
In addition to attacking each of the claims brought by the End Payors for failure to state a claim, Reckitt also argues that numerous state law claims should be dismissed for lack of Article III standing as well as antitrust standing and conflict .of laws. I will address these arguments in turn.
G.Do the End Payors Have Article III Standing?
Constitutional standing under Article III requires the following elements: (1) “an injury-in-fact that is concrete and particularized and actual or imminent, as opposed to conjectural or hypothetical”; (2) “a causal connection between the injury and the conduct complained of’; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Edmon-son v. Lincoln Nat. Life Ins. Co.,
“That a suit may be a class action ... adds nothing to the question of standing, for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Lewis v. Casey,
Although the End Payors have brought claims under the laws of forty-eight states and two territories, they reside in only seven of these states: Alabama, Illinois, Massachusetts, Michigan, Minnesota, New York and Pennsylvania. (EP Compl. ¶¶ 102-10.) These End Payors allege that they made purchases or reimbursed customers for Suboxone in only ten additional states: Alaska, California, ’ Florida, Iowa, Kentucky, Mississippi, Missouri, New Jersey, Nevada and Wisconsin.
Reckitt argues that the named End Pay- or Plaintiffs have not been injured, and thus lack standing to assert claims, in the remaining thirty-two states and territories.
Reckitt relies heavily upon In re Wellbutrin XL Antitrust Litigation,
... 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. At the conclusion of that discovery, the plaintiffs would apply for class certification, proposing to represent the claims of parties whose injuries and modes of redress they would not share. That would present the precise problem that the limitations of standing seek to avoid.
Id. at 155. Judge McLaughlin ultimately concluded that the plaintiffs, end payor health and welfare funds, had standing to bring claims under the laws of the states where the plaintiffs themselves were located and states where the plaintiffs’ members had purchased Wellbutrin. Id. at 156-57. However, all other state law claims were dismissed for lack of standing. Id. at 158. I agree with Judge McLaughlin’s reasoning.
The End Payors attempt to distinguish Wellbutrin, arguing that' the question is not one of standing but instead a question of representativeness under Rule 23, and therefore a ruling on this issue is premature. The End Payors rely upon In re Nexium (Esomeprazole) Antitrust Litigation,
The majority of the other cases cited by the End Payors generally involve situa
The fact that this is a class action should not change the analysis “for even named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Lewis,
H. Do Conñict of Laws Principles Require Additional State Law Claims to Be Dismissed?
Reckitt further argues that while conflict of laws principles allow the End Payor Plaintiffs to assert claims under the ■ laws of Virginia (Reckitt’s “home state”) or the seven “home states” of the named End Payors, claims cannot be raised under the law of states where Suboxone was purchased (“purchase states”). Reckitt acknowledges that the law within this circuit and elsewhere is in considerable disarray. However, it urges that classic choice of laws considerations — i.e. the location of the injury, the conduct causing the injury, the domicile of the parties, and the center of the relationship between the parties— would require applying the “home state approach.” This approach allows plaintiffs to bring state law claims where the plaintiffs and/or the defendants reside.
The End Payors respond that both the state where the overcharge was incurred and the state .where the End Payors reside have an interest in compensating the vic
A number of cases within this district have determined that end payor plaintiffs have standing and are able to state a claim under the laws of states in which they reside, as well as the states where they have reimbursed consumers. Cephalon,
Given the fact that the alleged injury occurred in each of the fifty states, and given each state’s strong interest in protecting its own consumers (but a far weaker interest in protecting consumers from other states), it is clear ... that the law of a particular state will govern any overcharge injury arising in that state.
Id. at 211 n. 12; see also In re Relafen Antitrust Litig.,
The Restatement (2d) of Conflicts of Laws advises that courts should consider “the basic policies underlying the particular field of law.” State laws that allow indirect purchasers to assert antitrust claims aim to protect consumers within its borders. See In re Relafen,
I. Have the End Payors Stated a Claim Under State Antitrust Law?
Reckitt adopts the arguments raised in their motion to dismiss the Direct Pur
1. Antitrust Standing
Reckitt argues that the End Payors have failed to establish antitrust standing — a separate analysis from Article III standing — under the standards articulated in Associated General Contractors of California, Inc. v. California State Council of Carpenters (“AGC”),
AGC followed the Supreme Court’s decision in Illinois Brick Co. v. Illinois,
Upon review of the precedent cited by the parties, it appears that some states have explicitly adopted the AGC factors and some have not. Compare Lorix v. Crompton Corp.,
Regarding the first factor — the nature of plaintiffs alleged injury, including the status of the plaintiff as a consumer or competitor in the relevant market — Reek-itt argues that none of the End Payor Plaintiffs clearly pleads that it is a purchaser of Suboxone, and therefore is neither a purchaser, nor a competitor of Reckitt. However, the complaint clearly states that the End Payors “purchased and/or provided reimbursement” to its members for Suboxone. Other courts have found that reimbursement and/or purchases of the product by a Health and Welfare Fund can satisfy the first factor. See In re K-Dur Antitrust Litig.,
The End Payors argue that the second factor, directness of the injury, has minimal weight when analyzed under state law, where the state allows claims by indirect purchasers. While this is a valid point, I must note that antitrust standing is not unlimited, even in states that allow suits by indirect purchasers. For example, in Owens Coming v. R.J. Reynolds Tobacco Co.,
Another example of these limitations can be found in what the parties have referred to as the “Visa” cases. In these cases, Visa and Mastercard were alleged to have forced stores that accepted their credit cards to also accept Visa and Mastercard debit cards through an illegal tying scheme. The debit card transactions resulted in inflated fees being charged to the stores. The stores then proceeded to raise the prices of their products, even for customers who purchased items with cash or check. The plaintiffs were the consumers who had paid inflated prices at the store.
While these cases make clear that directness of injury must be considered in states with Illinois Brick repealer statutes, I find that the factor must either carry significantly less weight or directness must be analyzed more generously than under federal law. It would be inconsistent for a state to allow indirect purchasers to bring antitrust claims, only for the courts to cursorily dismiss those claims on antitrust standing grounds simply because they have been brought by indirect purchasers. See Lorix,
The End Payors also point out that they have purchased the product and/or provided reimbursement to their members who have purchased the product. This is not the situation in the Visa cases or Owens Coming where there are numerous links in the causal chain. The End Payors claim that they were overcharged when purchasing Suboxone due to the manufacturer’s monopolization. These allegations are sufficiently direct to satisfy the second factor in states that allow indirect purchasers to bring antitrust claims.
For the reasons just discussed, the third factor — whether there is a more direct victim — must also carry little weight in states that allow suits to be brought by indirect purchasers. “[S]trict application of this factor, in the context of indirect purchasers, would always caution against standing, an outcome incompatible with the purpose of Illinois Brick repealer statutes.” D.R. Ward Constr. Co. v. Rohm & Haas Co.,
Finally, as to damages, the Third Circuit has been reluctant to grant motions to dismiss based on speculative or complex damages. See In re Lower Lake Erie Iron Ore Antitrust Litig.,
2. Nexus to Intrastate Commerce
Reckitt further argues that the End Payors fail to plead a sufficient nexus between Reckitt’s alleged antitrust violations and intrastate commerce under the antitrust laws of Mississippi and Nevada. Plaintiffs do not dispute the need for this nexus, and respond that the following portion of their amended complaint provides sufficient facts to satisfy the intrastate commerce requirement:
Reckitt’s anticompetitive conduct occurred in part in trade and commerce within the states set forth herein, and also had substantial intrastate effects in that, inter alia, retailers within each state were foreclosed from offering cheaper generic Suboxone to end-payors inside each respective state. The foreclosure of generic Suboxone directly impacted and disrupted commerce for end-*699 payors within each state, who were forced to pay supracompetitive prices.
(EP Compl. ¶ 152.)
Courts have found that allegations more general than these satisfy the intrastate commerce nexus requirement. See In re Digital Music Antitrust Litig.,
J. Have the End Payors Failed to. State a, Claim Under State Consumer Protection Laws?
Reckitt argues that all of the remaining consumer protection claims brought under the laws of California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New York, Pennsylvania and Virginia must be dismissed for a multitude of reasons. I address each of these states’ consumer protection laws in turn.
1. California
With respect to California’s consumer protection law, Cal. Bus. & Prof. Code §§ 17200 et seq., Reckitt simply argues that the End Payors have failed to demonstrate a nexus to intrastate commerce. For the reasons stated in section III.I.2, supra, I disagree with Reckitt’s argument. The End Payors have alleged that overcharges occurred in California, which is sufficient to establish an intrastate nexus. See Meridian Project Sys., Inc. v. Hardin Constr. Co., LLC,
2. Florida
The Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201 et seq., prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla. Stat. Ann. § 501.204. Reckitt argues that the End Payors have failed to adequately plead fraud or deceit to state a claim under Florida’s consumer protection law, especially in light of the particularity required by Federal Rule of Civil Procedure 9(b). See In re Packaged Ice Antitrust Litig.,
For the same reasons discussed above regarding the Direct Purchasers, the End Payors’ allegations are sufficient to satisfy the particularity requirements of Rule 9(b). Specifically, they point to claims that Reckitt fabricated a safety issue regarding Suboxone tablets for the sheer purpose of impairing generic competition and eliciting monopoly proceeds from consumers. This false safety issue was then allegedly broadcast to the FDA, doctors, other industry participants, and the public in an effort to .destroy demand for Suboxone tablets. Reckitt is also alleged to have made misrepresentations in their Citizen Petition, which the End Payors claim was submitted solely for the purposes of delay. (See EP Compl. ¶¶ 3, 24-35, 70-82.) The End Payors provide numerous, specific reasons why Reckitt’s actions were false and deceptive. Other cases have found that an allegedly fraudulent Citizens Petition submitted for the purposes of delay could constitute deceptive conduct that would state a claim for violation of state consumer protection laws. See, e.g., In re DDAVP Indirect Purchaser Antitrust Litig.,
3. Illinois
The Illinois Antitrust Act only permits the state’s Attorney General to bring a class action on behalf of indirect purchasers. 740 Ill. Comp. Stat. § 10/7(2). The End Payors recognize this prohibition, as they have withdrawn their claims under Illinois’ antitrust law. Courts in this district have found that, in light of this prohibition, claims based on alleged antitrust violations under Illinois’ consumer protection law must be dismissed. In re Flonase Antitrust Litig.,
4. Massachusetts
Section 11 of Massachusetts’ consumer protection law provides a claim for unfair or deceptive trade practices between businesses, whereas § 9 provides a cause of action to consumers. See Mass. Gen. L. Ch. 93A §§ 9, 11; Ciardi v. F. Hoffmann-La Roche, Ltd.,
5.Michigan
Reckitt argues that Michigan’s consumer protection law, Mich. Stat. Ann. §§ 445.901 et seq., does not prohibit monopolization. While this statute does require intent to deceive, which is not required to state a claim for monopolization, see In re Packaged Ice Antitrust Litig.,
Reckitt further argues that claims under Michigan’s consumer protection law require a plaintiff to demonstrate that it relied on such deceptive conduct when making a purchase. See Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC,
6.Minnesota
Minnesota requires that the pleadings contain specific allegations of fraud or deceit that comply with the heightened standard of Federal Rule of Civil Procedure 9(b). E-Shops Corp. v. U.S. Bank Nat’l Ass’n,
7.Missouri
Reckitt argues that the End Payors’ claim 'under Missouri’s consumer protection law should be dismissed due to the state’s adoption of Illinois Brick. The End Payors point to Gibbons v. J. Nuckolls, Inc.,
8.Nevada
Reckitt also argues that monopolization claims' are not actionable under Nevada’s consumer protection law, Nev.Rev.Stat. Ann. §§ 598.0903 et seq. However, that statute prohibits deceptive trade practices, which includes “[kjnowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations or quantities of goods or services for sale.” Nev.Rev.Stat. § 598.0915. For the reasons stated above, the End Payors have sufficiently pleaded deceptive practices by Reckitt so as to state a claim under Nevada’s consumer protection law. See In re DDAVP,
9.New York
Reckitt also argues that the End Payors have failed to establish a nexus with intrastate commerce as required by New York’s consumer protection law, N.Y. Gen. Bus. L. §§ 349 et seq. As with California, the End Payors have pleaded that overcharges occurred in New York. Therefore, I do not agree with Reckitt’s argument that this claim should be dismissed. See Goshen v. Mutual Life Ins. Co. of N.Y.,
Reckitt further argues that the End Payors failed to adequately plead fraud or deceit directed at consumers. Reckitt cites to In re Wellbutrin XL Antitrust Litig.,
10.Pennsylvania
Reckitt argues that the End Payors have failed to plead fraud or deception with particularity under Pennsylvania’s consumer protection law, 73 Pa. Stat. Ann. §§ 201-1 et seq. See In re K-Dur Antitrust Litig.,
11. Virginia
Reckitt argues that the End Payors’ claim under Virginia’s consumer protection law, Va.Code Ann. § 59.1-196, should be dismissed because monopolization allegations are not actionable under the state’s consumer protection laws. See In re New Motor Vehicles Canadian Export Antitrust Litig.,
K. Have the End Payors Stated a Claim for Unjust Enrichment?
“Generally speaking, in order to state a claim for unjust enrichment, a plaintiff must allege (1) at plaintiffs expense (2) defendant received [a] benefit (3) under circumstances that would make it unjust for defendant to retain [the] benefit without paying for it.” In re K-Dur Antitrust Litig.,
■Reckitt presents two arguments as to why all of the End Payors’ unjust enrichment claims should be dismissed. First, Reckitt argues that the End Payors failed to adequately identify the state laws under which they assert such claims, and that failure to do so warrants dismissal. See In re Auto. Parts Antitrust Litig.,
Reckitt’s second argument for complete dismissal of the unjust enrichment claims is that the End Payors did not plead the specific elements of any state’s unjust enrichment law or the factual allegations that support recovery under those laws. While it is true that the elements of unjust enrichment vary state by state, “almost all states at minimum require plaintiffs to allege that they conferred a benefit or enrichment upon defendant and that it would be inequitable or unjust for defendant to accept and retain the benefit.” In re Flonase,
Next, Reckitt contends that any and all “autonomous” unjust enrichment claims — claims that are not derived from a violation of some other state law — must be dismissed. Unjust enrichment claims can generally take one of two forms: (1) parasitic, which means it “arise[s] from contracts, torts, or other predicate wrongs”; or (2) autonomous, where the unjust enrichment claim alone “may also serve as independent grounds for restitution in the absence of mistake, wrongdoing, or breach of contract.” In re New Motor Vehicles Canadian Export Antitrust Litig.,
To the extent that Reekitt argues that other states do not allow a stand-alone claim for unjust enrichment, I will address these states individually below.
1.Alabama
With respect to Alabama’s unjust enrichment law, Reekitt first argues that because the End Payors did not plead underlying antitrust or consumer protection claims under Alabama law, the Alabama unjust enrichment claims must be dismissed. Reekitt does not cite to any Alabama case law that states an unjust enrichment claim cannot stand on its own as an independent cause of action. Therefore, I will not grant the motion on this ground.
Reekitt next argues that the End Payors failed to allege that they acted under a mistake of fact or in misreliance on a duty, or that Reekitt engaged in any unconscionable conduct, as required by Alabama law. See Matador Holdings, Inc. v. HoPo Realty Invs., LLC,
2.Alaska
The only argument raised as to Alaska is that unjust enrichment cannot be an autonomous, stand-alone claim. In support of its argument, Reckitt cites to Alaska Sales & Serv., Inc. v. Millet,
3.California
Reekitt argues that the claim for unjust enrichment under California law must be dismissed because California does
In the absence of clear authority on this issue, I find the analysis in Baggett to be persuasive. Therein, the court noted that it was unclear whether unjust enrichment was a viable cause of action in California,. and in any event, found that courts seem particularly reluctant to allow an unjust enrichment claim where the remedies available for plaintiff may be pursued under other claims. Baggett,
4. Florida
Reckitt initially argues that because Florida does not permit antitrust claims by indirect purchasers, the End Payors’ unjust enrichment claim must also be dismissed as an end-run around this restriction. However, as discussed above, Florida does permit indirect purchasers to bring claims under the state’s consumer protection law. Therefore, because there exists a viable underlying cause of action, I do not agree with Reckitt’s argument. See Flonase,
However, I do find that Florida law requires that a benefit be conferred upon the defendant directly in order to state a claim for unjust enrichment. See Extraordinary Title Servs., LLC v. Fla. Power & Light Co.,
5. Iowa
Reckitt first argues that the unjust enrichment claim arising under Iowa law must be dismissed because the End Payors did not allege that they conferred a direct benefit on Reckitt. However, the Supreme Court of Iowa has held that the benefits conferred to a defendant in an unjust enrichment claim may be “direct or indirect, and can involve benefits conferred by third parties.” State, Dep’t of Human Servs., ex rel. Palmer v. Unisys Corp.,
Next, Reckitt argues that the Iowa unjust enrichment claim should be dismissed because the End Payors received the benefit of the bargain, citing to Smith v. Stowell,
I also find that the sheer fact that the End Payors received medication in exchange for money paid does not bar an unjust enrichment claim. Reckitt has not established that any consideration exchanged for a benefit conferred defeats a claim for unjust enrichment. Instead, the precedent indicates that courts inquire as to the “fairness” of the consideration, which would appear to be a factual issue inappropriate for disposition in a motion to dismiss. See In re K-Dur Antitrust Litig.,
6. Michigan
Reckitt first argues that the End Payors’ unjust enrichment claim under Michigan law should be dismissed because Michigan requires a showing of a direct benefit conferred on the defendants. It primarily relies on A & M Supply Co. v.
In A & M, the Michigan Court of Appeals affirmed the trial court’s dismissal of an unjust enrichment claim due to the plaintiffs failure to prosecute the case.
I agree with the reasoning presented by a court in the Eastern District of Michigan. In re Auto. Parts Antitrust Litig.,
Several Michigan courts have reached the same conclusion. See Kammer Asphalt Paving Co. v. E. China Twp. Sch.,
Reckitt next argues that the End Payors received the benefit of the bargain. Reck-itt cites to two cases where the court of appeals dismissed unjust enrichment claims where the parties negotiated an explicit contract, and both parties fulfilled their obligations under that contract. See Isom v. NE Lots LLC,
7. Minnesota
Reckitt first argues that Minnesota requires a direct benefit to be conferred onto the defendant in order to state a claim for unjust enrichment. The only authority it provides in support of this assertion is Schumacher v. Schumacher,
Reckitt also argues that the End Payors received the benefit of the bargain. It cites one case where the plaintiff, a college student who did not receive a degree upon paying tuition, claimed the university was unjustly enriched. Zinter v. Univ. of Minn.,
Lastly,' Reckitt argues that the End Payors are barred from bringing unjust enrichment claims when they have adequate legal remedies available, citing to Southtown Plumbing, Inc. v. Har-Ned Lumber Co., Inc.,
8. Mississippi
Reckitt next argues that because the End Payors received the benefit of the bargain, the Mississippi unjust enrichment claims should be dismissed. It cites to one case that discusses unjust enrichment as it applies to third parties. Omnibank of Mantee v. United S. Bank,
Reckitt also argues that under Mississippi law, plaintiffs can only recover for unjust enrichment when the payment was made by a mistake of fact. Reckitt points to the holdings of two Mississippi Supreme Court cases. Willis v. Rehab Solutions, PLLC,
9. Nevada
Reckitt’s only argument in support of its motion to dismiss the Nevada unjust enrichment claim is that Reckitt provided consideration for any benefit conferred. For support, Reckitt cites Bowyer v. Davidson,
10. New York
With regard to the New York unjust enrichment claims, Reckitt argues that the End Payors must demonstrate that a direct benefit was conferred upon the defendant. A review of New York case law indicates that in order to state a claim for unjust enrichment, the relationship between the plaintiff and the defendant, and thus the conferral of the benefit, must not be'“too attenuated.” See Mandarin Trading Ltd. v. Wildenstein,
Reckitt argues that this case is similar to Sperry v. Crompton Corp.,
I agree with the court’s analysis in Waldman v. New Chapter, Inc.,
11.Pennsylvania
Reckitt argues that the End Payors are barred from bringing an unjust enrichment claim in Pennsylvania because that state does not allow indirect purchasers to bring antitrust claims under Illinois Brick. However, as opposed to simply barring claims brought by indirect purchasers, Pennsylvania does not have a state antitrust statute at all. See XF Enterprises, Inc. v. BASF Corp.,
12.Virginia
Reckitt initially argues that the End Payors cannot bring an autonomous unjust enrichment claim. However, I have already found that the End Payors’ claim under Virginia’s consumer protection law may proceed. Therefore, I disagree with Reckitt’s argument. For the same reason, I disagree with Reckitt’s argument that to allow a claim for unjust enrichment in Virginia would act as an end-run around the state’s prohibition of antitrust claims by indirect purchasers. Therefore, the End Payors’ claim for unjust enrichment under Virginia law will survive the motion to dismiss.
13.Wisconsin
The only argument Reckitt provides in support of its motion to dismiss the unjust enrichment claim arising under Wisconsin law is that Reckitt has already provided consideration for any benefit conferred. It cites to a Wisconsin Court of Appeals case where a subcontractor was barred from bringing an unjust enrichment claim against an owner that had already paid a general contractor for the services provided. Tri-State Mech., Inc. v. Northland Coll.,
. L. Should the End Payors’ Claim for Injunctive Relief Be Dismissed?
Reckitt argues that the End Payors’ claim for injunctive relief under § 16 of the Clayton Act should be.dismissed as it is procedurally arid substantively deficient. First, Reckitt asserts that because the End Payors seek the exact relief in their § 16 claim as the Direct Purchasers, the claim should be dismissed as duplica-
In Howard Hess, the court denied the plaintiff’s motion for summary judgment because the plaintiff had not established antitrust injury where a nearly identical injunction to that sought by the plaintiff had already been granted to the Government. Id. at 249. At no point did the court state that dismissal was appropriate through a motion to dismiss where two groups of plaintiffs sought the same injunction. In fact, the Howard Hess court noted that it was unaware of any antitrust authority that would “require the Plaintiffs to have established a need for an injunction that was ‘non-duplicative.’ ” Id. While Howard Hess recognizes that the court may consider an injunction that is already in place in deciding whether antitrust injury exists, that is much different from requiring dismissal here. At the very least, the End Payors should be granted the opportunity to present evidence of their injury at the summary judgment stage.
Next, Reckitt argues that the End Pay-ors lack standing to seek injunctive relief under § 16 of the Clayton Act because they fail to allege any ongoing or future injury that would be remedied by an injunction. Specifically, Reckitt asserts that the only injury that is identified is the past payment of allegedly inflated prices due to the supposed delayed market entry of generic Suboxone tablets. The End Payors respond that the harm they suffer is ongoing because Reckitt destroyed the market for Suboxone tablets and they are continuing to pay artificially inflated prices for an inferior film product. The End Payors urge that this injury may be remedied by an injunction through compulsory licensing of the film patents to generic competitors, or by way of mandated reduction in Reck-itt’s price of the branded film. I agree with the End Payors that, as they have stated a claim for antitrust injury through the product-hopping scheme, and the scheme has allegedly damaged the market for generic Suboxone tablets significantly, the injury is ongoing and injunctive relief may be sought. Reckitt’s reliance on In re DDAVP, is misplaced, as the patent in that case had been invalidated, and thus there was no risk of continued supra-competitive prices.
Finally, Reckitt argues that the End Payors’ claim for injunctive relief should be dismissed because they have failed to state an underlying violation of the antitrust laws. As I have found that Plaintiffs have stated a claim for antitrust violations, the End Payors’ claim for injunctive relief will survive.
M. Have Plaintiffs Sufficiently Pleaded Market Power and a Relevant Market?
As noted previously, in order to state a claim for monopolization, a plaintiff must plausibly allege “(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” Grinnell,
Reckitt argues that in order to allege market power, a plaintiff must first define the relevant market. While relevant market inquiries are generally fact-intensive, and dismissal on this ground is disfavored in a motion to dismiss,
[w]here the plaintiff fails to define its proposed relevant market with reference to the rule of reasonable interchangeability and cross-elasticity of demand, or alleges a proposed relevant market that clearly does not encompass all interchangeable substitute products even when all factual inferences are granted in plaintiffs favor, the relevant market is legally insufficient and a motion to dismiss may be granted.
Queen City Pizza, Inc. v. Domino’s Pizza, Inc.,
Plaintiffs respond that they have met the monopoly power requirement in two distinct ways: (1) directly, through allegations that Reckitt’s conduct caused anti-competitive effects; and (2) indirectly, through allegations of Reckitt’s dominant share of the relevant market. Where direct evidence of monopoly power is provided, Plaintiffs assert that definition of a relevant market is not required. In support of this argument, Plaintiffs cite to Broadcom, where the Third Circuit stated in a footnote that “[b]ecause market share and barriers to entry are merely surrogates for determining the existence of monopoly power, direct proof of monopoly power does not require a definition of the relevant market.”
Plaintiffs urge that they have alleged direct evidence of supra-competitive prices and restricted output. I agree. Specifically, Plaintiffs have alleged that: (1) Reckitt successfully impaired and excluded generic competition; (2) Reckitt’s conduct resulted in supra-competitive prices; (3) no firm was able to respond to Reckitt’s high prices by increasing output of competing goods; and (4) consumer welfare suffered from the lack of competing goods in a high-price environment — all of which demonstrates Reckitt’s ability to control prices and exclude competition.
Further, I need not reach the question of whether identification of a relevant market is required to establish monopoly power in direct evidence cases because Plaintiffs have also adequately defined a relevant market so as to survive a motion to dismiss. A relevant market is defined by a products’ reasonable interchangeability of use or cross-elasticity of demand between the product and its substitutes. Queen City Pizza,
Plaintiffs have alleged that Suboxone is a unique product and that the relevant product market is limited to Suboxone in all of its forms and dosage strengths and its AB-rated generic bioequivalents. They further allege that “Suboxone does not exhibit significant, positive cross-elasticity of demand with respect to price, with any opioid dependence treatment or other product other than AB-rated generic versions of Suboxone.” The complaint further explains that Suboxone is unique because it is the only opioid replacement maintenance therapy that can be prescribed in an office setting and taken by patients at home because it is categorized as a Schedule III drug and co-formulated with an opioid antagonist to deter abuse. (EP Compl. ¶¶ 153-59.) Methadone, for example, is a Schedule II drug and must be administered in a clinic. Further, Su-butex, another opioid treatment drug marketed by Reckitt, is not alleged to be reasonably interchangeable because it lacks the opioid agonist, and therefore is not recommended for maintenance therapy. I must accept these statements as true.
Dismissal at the motion to- dismiss stage for failure to define a relevant market is disfavored. Plaintiffs have referenced the rules of reasonable interchangeability and cross-elasticity of demand and have plausibly explained why other similar products do not fall within the relevant market. These allegations are sufficient to state a claim and survive a motion to dismiss, to the extent that a relevant market analysis is even necessary where direct evidence of monopoly power is provided.
N. Should the Four Additional Reckitt Defendants Be Dismissed?
In addition to Reckitt Benckiser Pharmaceuticals, Inc., which actually sells Su-boxone, Plaintiffs have named four additional corporate entities as Defendants: Reckitt Benckiser, Inc., Reckitt Benckiser LLC, Reckitt Benckiser Healthcare (UK) Ltd., and Reckitt Benckiser Group pic. Reckitt argues that these four additional Defendants should be dismissed for failure to identify what role, if any, these entities played in the alleged anticompetitive scheme-
As to Reckitt Benckiser Group pic, the End Payors point to allegations in their complaint that its board of directors “were advised of the generic-impairing purpose of the product hop from Suboxone tablets to film, and of the related anticompetitive tactics, and specifically approved the scheme and its purpose. The board of directors approved and directed this anti-competitive scheme over the course of many years, including the period encompassing the mid-2000s.” (EP Compl. ¶ 83.) While this is sufficient to establish Reckitt Benckiser Group pic’s role in the alleged scheme, the only allegation made by the End Payors for Reckitt Benckiser Healthcare (UK) Ltd. is that they conducted a similar product-hopping scheme in the United Kingdom involving the product Gaviscon. However, these allegations do not tie Reckitt Benckiser Healthcare (UK) Ltd. to the actions taken with respect to Suboxone. Therefore, I agree that the claims against Reckitt Benckiser Healthcare (UK) Ltd. should also be dismissed.
0. Should the Claims Asserted by Certain End Payors Be Dismissed for Failure to Serve the Complaint?
Finally, I address Reckitt’s argument that the claims brought by certain End Payors should be dismissed for failure to effectuate service. It appears that four End Payors have failed to serve Reckitt Benckiser Healthcare (UK) Ltd. and Reck-itt Benckiser Group pic., and that one End Payor has failed to serve any Defendant.
While I agree that dismissing some of the End Payors’ claims for failure to serve could potentially constitute a waste of judicial resources, as it would likely result in a refiling of the complaint, the End Payors have failed to even attempt to explain why service has not been effectuated. There has been no attempt to establish good cause for failure to serve. However, there is also no prejudice to Defendants, as Reckitt has received ample notice of this lawsuit from the other Plaintiffs and has been actively defending the suit. Therefore, I find that the appropriate solution is to exercise discretion and allow an additional period of time for these End Payors to effectuate service.
IY. CONCLUSION
For the reasons recited above, the following claims will be dismissed: Count III of the Direct Purchasers’ complaint; a variety of state law claims brought in the End Payors complaint for lack of standing and failure to state a claim;
An appropriate Order follows.
ORDER
AND NOW, this 3rd day of December, 2014, upon consideration of “Defendants’ Motion to Dismiss the Direct Purchaser Plaintiffs’ Consolidated Amended Class Action Complaint” and “Defendants’ Motion to Dismiss the End Payor Plaintiffs’ Consolidated Amended Class Action Complaint,” the responses and replies thereto, and for the reasons set forth in the accompanying memorandum opinion, it is hereby ORDERED that the motions are GRANTED in part and DENIED in part, such that:
— The motion to dismiss the Direct Purchasers’ complaint (Dkt. No. 13-md-2445, Doc. No. 56; Dkt. No. 13-cv-1122, Doc. No. 24; Dkt. No. 13-ev-1164, Doc. No. 27; Dkt. No. 13-cv-3230, Doc. No. 3) is granted as to Count III. The motion is further granted in that the Direct Purchasers’ claims against Reckitt Benekiser, Inc., Reckitt Benekiser LLC, Reckitt Benekiser Healthcare (ÜK) Ltd. and Reckitt Benekiser Group pic are dismissed. The motion is denied in all other respects.
— The motion to dismiss the End Pay-ors’ complaint (Dkt. No. 13-md-2445, Doc. No. 57; Dkt. No. 13-cv-1808, Doc. No. 10; Dkt. No. 13-cv-1594, Doc. No. 10; Dkt. No. 13-cv-2454, Doc. No. 6; Dkt. No. 13-cv-3229, Doc. No. 2; Dkt. No. 13-cv-3381, Doc. No. 3; Dkt. No. 13-cv-3450, Doc. No. 2; Dkt. No. 13-cv-3451, Doc. No. 3; Dkt. No. 13-cv-3545, Doc. No. 2; Dkt. No. 13-4430, Doc. No. 2) is granted as to the following claims:
i.The antitrust claims under the laws of Arizona, District of Columbia, Illinois, Kansas, Maine, Massachusetts, Missouri, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Puerto Rico, Rhode Island, South Dakota, Tennessee, Utah, Vermont and West Virginia;
ii. The consumer protection claims under the laws of Arkansas, Arizona, District of Columbia, Idaho, . Illinois, Kansas, Maine, Massachusetts, Missouri, Nebraska, New Hampshire, .New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont and West Virginia; and
iii. The unjust enrichment claims brought under the laws of Arkansas, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maryland, Maine, Massachusetts, Missouri, Montana, Nebraska, New Jersey, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia and Wyoming.
The motion is further granted in that the End Payors’ claims against Reckitt Benekiser, Inc., Reckitt Benekiser LLC and Reckitt Benekiser Healthcare (UK) Ltd. are dismissed. The motion is denied in all other respects.
IT IS FURTHER ORDERED that the End Payor Plaintiffs United Food & Commercial Workers Health & Welfare Fund, A.F. of L.-A.G.C. Building Trades Welfare Plan, Michigan Regional Council of Carpenters Employee Benefits Fund, I.B.E.W. 292 Health Care Plan and Teamsters Health Services & Insurance Plan
Notes
. The Direct Purchasers’ and the End Payors’ complaints contain almost identical allegations. To avoid confusion, the facts recited herein will be derived from the Direct Pur
. The complaint indicates that orphan drug exclusivity may be granted: "(a) on the basis that a product is intended to treat a disease or
. The End Payors allege that this number was closer to 85% by the time generic Suboxone tablets entered the market in February 2013. (EP Compl. ¶ 4.)
. Under the FDA Amendments Act of 2007, the FDA has the authority to require drug manufacturers to conduct a Risk Evaluation and Mitigation Strategy ("REMS”). A REMS is a process by which a drug’s manufacturer demonstrates to the FDA that the drug’s benefits outweigh its risks. "A REMS can include a medication guide, a package insert, and potential restrictions on the distribution of the drug.” If the FDA requires a generic to conduct a REMS, an ANDA will not be approved until the REMS process is completed. (Id. at ¶¶ 57-58; Oral Arg. Tr. pp. 12-15.)
. See 21 U.S.C. § 355(j)(4)(G); 21 C.F.R. § 314.127(a)(7).
. All of the arguments raised in Reckitt’s motion to dismiss the Direct Purchasers’ complaint have also been incorporated as arguments requiring dismissal of the End Payors' state law antitrust claims. As the arguments raised and facts alleged apply equally to both groups of Plaintiffs, I will refer generally to Plaintiffs in this section where appropriate.
. " 'Detailing' in the retail pharmaceutical business refers to the practice of sending company representatives to doctors’ offices to distribute samples and promotional materials and information.” Walgreen,
. At oral argument, Reckitt also claimed that Mylan Pharmaceuticals, Inc. v. Warner Chil-cott Public Ltd. Co.,
. I note that Plaintiffs also alleged that Reck-itt engaged in anticompetitive behavior by reducing the price of its film and raising the price of the tablets, despite the fact that the film was more expensive to manufacture. Reckitt correctly notes that only predatory pricing — that is, price decreases by a monopolist below any reasonable measure of cost— can be anticompetitive. Atl. Richfield Co. v. USA Petroleum Co.,
. Although Continental Ore involved a § 1 conspiracy claim, the Third Circuit has applied its reasoning to § 2 cases as well. Le-Page’s,
. Reckitt argues that even if 21 U.S.C. § 355-1 (f)(8) created a duty to deal, it does not even apply under these circumstances. 21 U.S.C. § 355-1 (f)(8) states:
No holder of an approved covered application shall use any element to assure safe use required by the Secretary under this subsection to block or delay approval of an application under section 355(b)(2) or 0 of this title or to prevent application of such element under subsection (i)(l)(B) to a drug that is the subject of an abbreviated new drug application.
Reckitt asserts that the complaints include no facts to indicate that the elements to assure safe use in Reckitt’s REMS were used, or even could be used, to block or delay any ANDA. Instead, they frame Plaintiffs’ argument as disliking the terms by which Reckitt sought to negotiate. Plaintiffs respond by pointing to sections of its complaint alleging that § 355-1 (f)(8) applies, and a letter written to the FDA, which recounts that the FDA previously warned Reckitt that attempts to block or delay would violate § 355 — 1(f)(8). Plaintiffs argue that the FDA’s interpretation of the FDCA is entitled to deference. However, there is no document attached to the complaint that actually includes a statement from the FDA on this issue. Therefore, I agree with Defendants that it is dubious whether Plaintiffs have sufficiently pleaded that the státute even applied. Nevertheless, I need not decide this issue because, even assuming the statute applies, Count III will still be dismissed.
. Plaintiffs’ reliance on Safeway Inc. v. Abbott Laboratories,
. While the FDA did state that it "welcomes and encourages sponsors to utilize unit-dose packaging," it also stated "we do not believe the data at this time support refusing to approve applications that lack such packaging.” (DP Compl., Ex. G., p. 14.) Reckitt tries to argue that based on this "encouragement” some of its relief was granted. I disagree with that assertion.
. The End Payors' customers are also alleged to have made purchases in Ohio. However, this is irrelevant for the purposes of my analysis because no claims have been brought under Ohio law.
. While Reckitt asserts that the End Payors' claims under Virginia law should be dismissed for lack of standing, it later argues that under conflict of laws principles the End Payors "can only assert claims under the laws of Virginia or their residence” and advocates applying Virginia law. (Reckitt Mot. to Dismiss EP Compl., pp. 8, 10.) I find that the End Payors’ allegations that Reckitt engaged in wrongful, anticompetitive conduct in Virginia is sufficient to establish standing in that state.
. Wellbutrin reflected on two Supreme Court cases, Amchem Products, Inc. v. Windsor,
. The End Payors also cite to this Court’s decision in King Drug Co. of Florence, Inc. v. Cephalon, Inc.,
. Accordingly, the antitrust claims brought under the laws of the following states and territories are dismissed: Arizona, District of Columbia, Kansas, Maine, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, Puerto Rico, Rhode Island, South Dakota, Tennessee, Utah, Vermont and West Virginia.. The End Payors have also voluntarily withdrawn their antitrust claims under Illinois, Missouri and New York law. (See EP Resp., p. 34 n. 29.)
The consumer protection claims under the laws of the following states and territories are also dismissed: Arkansas, Arizona, District of Columbia, Idaho, Kansas, Maine, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont and West Virginia.
Finally, the unjust enrichment claims brought under the laws of the following states and territories are dismissed: Arkansas, Arizona, Colorado, Connecticut, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Kansas, Louisiana, Maryland, Maine, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia and Wyoming.
. The End Payors have identified the following states as either "home states” or “purchase states”: Alabama, Alaska, California,’ Florida, Illinois, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New York, Pennsylvania and Wisconsin. (EP Compl. ¶¶ 102-15.) Claims under Virginia law may also proceed as Virginia is Reckitt's home state— the state where much of Reckitt’s anticompet-itive conduct is alleged to have been carried out.
. Reckitt argues that the End Payors’ claims for monopolization under Florida and Massa
. Reckitt attaches exhibits to its motion that identify cases and statutes from each of the relevant state jurisdictions in support of all of Reckitt's state-specific arguments. The End Payors argue that this appendix is improper for exceeding previously ordered page limits. This argument was the subject of a motion to strike, wherein the End Payors argued that Reckitt had nearly doubled its page limit by attaching exhibits filled with authority and legal argument. (Doc. No. 61.) Reckitt responded that the tables were for the convenience of the Court and are routinely utilized in this type of litigation where numerous state statutes are at issue. Reckitt points out that it had previously consented to an increase in the page limit of the End Payors' response in order to allow them to more fully address these state-by-state arguments. (Doc. No. 62.) The motion to strike was denied, although I noted that "[s]hould the Court conclude that the numerous exhibits filed by Defendant along with its Rule 12 motions are improper, those exhibits will not be considered.” (Doc. No. 66.)
While these tables of authority do contain legal argument and thus exceed the previously-ordered page limit, the additional pages were likely necessary to address claims raised by the End Payors from nearly every state in the country. As the End Payors were provided an additional twenty pages to respond to Reckitt's motion, which allowed them to identify authority from all of the relevant jurisdictions, there has been no prejudice to the End Payors. Therefore, I will consider Reckitt’s exhibits.
. While California’s antitrust law does not recognize unilateral conduct, as is alleged here, Reckitt has not demonstrated that any such restriction exists as to California’s consumer protection law. Therefore, I will allow California’s claims for monopolization and attempted monopolization to proceed under California’s consumer protection law.
. Although. Florida's antitrust law does not permit antitrust claims by indirect purchasers and has adopted Illinois Brick, Florida courts have held that the Florida Deceptive and Unfair Trade Practices Act does not have this same restriction. Mack v. Bristol-Myers Squibb Co.,
. As previously noted, Massachusetts’ consumer protection law was cited as providing a cause of action for the End Payors’ monopolization and attempted monopolization claims. These claims will also be dismissed as barred by Illinois Brick.
. The End Payors cite to Cephalon,
. Arnold v. Microsoft Corp.,
. Sickles v. Cabot Corp.,
. I note that some Florida precedent has not been entirely clear that the conferral of a direct benefit is required. See Merkle v. Health Options, Inc.,
. Reckitt also incorporates these arguments into its motion to dismiss the Direct Purchasers' complaint. The Direct Purchasers have adopted the arguments made by the End
. The allegations present in the Direct Purchasers’ consolidated amended complaint also establish direct evidence of monopoly power, and to the extent required to establish a relevant market, identify it in a similar manner as the End Payors — that is, that the relevant market includes Suboxone in all of its forms and dosage strengths, including generics. They also briefly include an explanation as to why Suboxone does not have cross-elasticity of demand with other opioid dependence treatments. For the reasons explained in this section, I am not inclined to grant a motion to dismiss on monopoly power grounds, particularly where the Third Circuit has articulated that dismissal at this stage is disfavored and where it is unclear that a relevant market definition is required at all where direct evidence of monopoly power has been provided. I accept the Direct Purchasers' allegations regarding the relevant market, but acknowledge that it is a close call and urge them to file the second amended complaint to include more substantial facts on this issue.
. Reckitt adopts the arguments in this section as to the Direct Purchasers as well. The Direct Purchasers do not respond, nor do they adopt the End Payors’ response on this issue. The only allegation in the Direct Purchasers’ complaint regarding these additional Reckitt entities is that they “manufacture!] and market!] numerous products, including
. While Reckitt states in their brief that three End Payors failed to serve Reckitt Benckiser Healthcare (UK) Ltd. and Reckitt Benckiser Group pic and two failed to serve any Defendant (see Reckitt’s MTD EP Compl. p. 40, n. 25), a. review of the dockets in this matter reveals the following: The End Payors that have failed to serve Reckitt Benckiser Healthcare (UK) Ltd. and Reckitt Benckiser Group pic. are United Food & Commercial Workers Health & Welfare Fund (Dkt. No. 13-3229), A.F. of L.-A.G.C. Building Trades Welfare Plan (Dkt. No. 13-3545), Michigan Regional Council of Carpenters Employee Benefits Fund (Dkt. No. 13-1808), and I.B.E.W. 292 Health Care Plan (Dkt. No. 13-2454). The End Payors that failed to serve any Defendant are Teamsters Health Services & Insurance Plan Local 404 (Dkt. No. 13-3451).
. The antitrust claims under the laws of Arizona, District of Columbia, Illinois, Kansas, Maine, Massachusetts, Missouri, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Puer-to Rico, Rhode Island, South Dakota, Tennessee, Utah, Vermont and West Virginia will be dismissed.
The consumer protection claims under the laws of Arkansas, Arizona, District of Columbia, Idaho, Illinois, Kansas, Maine, Massachusetts, Missouri, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont and West Virginia will be dismissed.
The unjust enrichment claims brought under the laws of Arkansas, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maryland, Maine, Massachusetts, Missouri, Montana, Nebraska, New Jersey, New Hampshire,- New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia and Wyoming will be dismissed.