OPINION AND ORDER
Before the Court is the motion of Defendants Ferring B.V., Ferring Pharmaceuticals, Inc., and Aventis Pharmaceuticals, Inc., (Doc. 103), seeking dismissal of the Amended Consolidated Class Action Complaint (the “Complaint” or “Compl.”), (Doc. 84), of putative representatives of a nationwide Indirect Purchaser Plaintiff class (“Plaintiffs” or “Indirect Purchaser Plaintiffs”), under Federal Rules of Civil Procedure 12(b)(1) for lack of standing and 12(b)(6) for failure to state a claim, and Plaintiffs’ Request for Judicial Notice, (Doc. 109). For the following reasons, Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiffs’ Request for Judicial Notice is DENIED.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts (but not the conclusions) in the Complaint are assumed to be true for the
After the '398 patent issued, Defendants filed a new drug application (an “NDA”) with the United States Food and Drug Administration (the “FDA”), and the FDA listed the '398 patent in its publication “Approved Drug Products with Therapeutic Equivalence Evaluations,” commonly known as the “Orange Book” (id. ¶¶ 34, 77), which provides notice concerning patents covering FDA-approved drugs, (id. ¶ 34). When a generic drug manufacturer seeks to produce a generic version of a drug, it may submit an abbreviated new drug application (an “ANDA”) to the FDA to obtain such approval. (Id. ¶ 39.) If a patent is listed in the Orange Book and a generic drug manufacturer believes that the patent is invalid or will not be infringed by the proposed generic drug, it must provide a “Paragraph IV certification” in connection with any ANDA that it files with the FDA. (Id. ¶ 41.) The filing of a Paragraph IV certification is considered a technical act of patent infringement under 35 U.S.C. § 271(e)(2) upon which the branded drug manufacturer may institute a patent infringement lawsuit. (Id. ¶ 43.) The filing of such a lawsuit in turn invokes a thirty-month stay of approval of the generic manufacturer’s pending ANDA, thereby blocking entry of the generic competitor into the market. (Id. ¶¶ 43, 45.)
In this case, Barr Laboratories (“Barr”) submitted ANDA No. 76^170 to obtain approval from the FDA to manufacture and sell a generic version of the tablet form DDAVP. (Id. ¶ 83.) The ANDA contained a Paragraph IV certification in which Barr claimed that '398 patent was invalid because Ferring had committed inequitable conduct before the PTO (discussed below). (Id.) On December 13, 2002, in response to Barr’s Paragraph IV certification, Defendants filed a patent infringement suit in the Southern District of New York against Barr, and Barr was therefore stayed from entering the market for thirty months. (Id. ¶ 85.) Similarly, on or about June 9, 2004, Teva Pharmaceuticals USA, Inc. (“Teva”) submitted a separate ANDA to sell a generic version of DDAVP, which included a Paragraph IV certification. (Id. ¶¶ 98-99.) On June 20, 2004, Defendants filed a patent infringement lawsuit against Teva in the District of Delaware, which also subjected Teva to the thirty-month stay. (Id. ¶¶ 100-01.)
The inequitable conduct to which Barr’s and Teva’s Paragraph IV certifications referred related to the following facts. The PTO had twice rejected Ferring’s application for the '398 patent on grounds that the '398 patent would be obvious in light of Ferring’s prior DDAVP patents, (id. ¶¶ 58-64), which rejection was affirmed by the Board of Patent Appeals, (id. ¶¶ 65-66). Ferring responded by filing
On February 7, 2005, the district court in Defendants’ infringement suit against Barr granted summary judgment to Barr, and found the '398 patent unenforceable. (Id. ¶ 87.) The district court determined that Ferring had deceived the PTO by submitting declarations to the PTO that purported to be made by “non-inventors,” when in fact the declarants had “close and undisclosed long-standing associations” with Ferring, and that without the declarations, the '398 patent would not have issued. (Id. ¶¶ 87, 89); see Ferring B.V. v. Barr Labs., Inc, No. 02-CV-9851,
On February 2, 2004, during the time that Defendants were prosecuting their infringement claim against Barr, Ferring filed a citizen petition with the FDA, asking the FDA to mandate that all ANDAs seeking approval to market a generic version of DDAVP include more stringent evidentiary proofs of bioequivalence, including comparative clinical end-point studies in children and separate evidence of bioequivalence for each dose level. (Compl. ¶¶ 102, 104.) On July 1, 2005, the FDA denied Ferring’s citizen petition, concluding that Ferring had not proffered evidence as to why the FDA should depart from its well-established methodologies to establish bioequivalence, and further determining that, in violation of 21 C.F.R. § 10.30 (requiring petitioner to certify that “petition includes all information and views on which the petition relies, and that it includes representative data and information known to the petitioner which are unfavorable to the petition”), Ferring had failed to cite an Aventis study that was inconsistent with the position advanced by Ferring in the citizen petition. (Id. ¶ 115.) On the same day, the FDA granted final approval of Barr’s ANDA for generic DDAVP tablets, and Barr launched its generic DDAVP product on July 15, 2005. (Id. ¶¶ 117-18.) As the first generic competitor to file a Paragraph IV certification, Barr had the exclusive right to market generic DDAVP for 180 days. (Id. ¶¶ 46, 118.) Teva entered the market after the FDA approved its ANDA on January 25, 2006. (Id. ¶ 119.)
Meijer, Inc. and Meijer Distribution, Inc. filed a class action complaint in this case on February 18, 2005. (Doc. 1.) Subsequently, two classes of plaintiffs the Direct Purchaser Plaintiff class (the “Direct Purchaser Plaintiffs”) and the Indirect Purchaser Plaintiffs (collectively the “Plaintiff classes”) — filed consolidated
The Second Circuit determined — only with respect to the Direct Purchaser Plaintiffs — that they (1) had standing to raise antitrust claims against Defendants; (2) plausibly alleged antitrust claims based on Walker Process fraud (discussed below), sham litigation, the fraudulent listing of the '398 patent in the Orange Book, and a baseless citizen petition; and (3) had pleaded the circumstances of Aventis’s alleged fraud with particularity. See In re DDAVP Direct Purchaser Antitrust Litig.,
On March 31, 2011, the Second Circuit granted the motion of the parties in the instant litigation to remand the case to this Court for a “determination of whether the amended judgment should be vacated as to the Indirect Purchaser Plaintiffs, in light of [the Second Circuit’s] decision in In re DDAVP Direct Purchaser Antitrust Litigation .... ” (Doc. 73 at 2.) On July 6, 2011, I vacated the amended judgment. (Doc. 79.) The Indirect Purchaser Plaintiffs
II. LEGAL STANDARDS
A. Motion to Dismiss
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
In considering whether a complaint states a claim upon which relief can be granted, the court “begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth,” and then determines whether the remaining well-pleaded factual allegations, accepted as true, “plausibly give rise to an entitlement to relief.” Id. at 679,
B. Consideration of Documents Outside the Pleadings
When deciding a motion to dismiss, the Court is entitled to consider the following:
(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents integral to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.
Weiss v. Inc. Vill. of Sag Harbor,
“Rule 201 of the Federal Rules of Evidence permits judicial notice of a fact that is ‘either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably ... questioned.’ ” United States v. Bryant,
C. Leave to Amend
Leave to amend a complaint should be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). It is within the sound discretion of the district court to grant or deny leave to amend. McCarthy v. Dun & Bradstreet Corp.,
III. DISCUSSION
A. Injunction under Section 16 of the Clayton Act for Defendants’ Violations of Section 2 of the Sherman Act
1. Claim
Under the Clayton Act, “[a]ny person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws.” 15 U.S.C. § 26. In other words, plaintiffs “must demonstrate a significant threat of injury from an impending violation ... or from a contemporary violation likely to continue or recur,” In re New Motor Vehicles Canadian Exp. Antitrust Litig.,
Defendants argue that the Plaintiffs are not entitled to an injunction because the '398 patent has been held to be unenforceable, and thus there is no threat of future injury to Plaintiffs. (See Ds’ Mem. 4-6; Ds’ Reply Mem. 1-2.)
Plaintiffs have not pleaded facts to show that they are entitled to an injunction. Plaintiffs allege vaguely that they seek injunctive relief “to remedy the anti-competitive market effects caused by the unlawful conduct of Defendants, and other relief so as to assure that similar anti-competitive conduct does not occur in the future,” (Compl. ¶ 138), but fail to allege how any putative Plaintiff faces a significant threat of injury from an impending violation relating to the '389 patent or supra-competitive prices of DDAVP. Further, with respect to “other drugs,” Plaintiffs have similarly failed to demonstrate which drugs might be involved, or what fraudulent conduct might be undertaken, or which Plaintiffs might buy the drugs at supra-competitive prices. In other words, Plaintiffs’ claim of future injury is wholly speculative. Putative class claims for an injunction fail where they do not demonstrate a threat of future injury to the plaintiffs in the case. See, e.g., New Motor Vehicles,
2. Request for Judicial Notice and Leave to Amend
In connection with their argument that a threat of future injury exists, Plaintiffs request that I take judicial notice of court filings in five other lawsuits involving Fer-ring and Aventis. (See generally Ps’ Req. for Judicial Notice.)
It appears that Plaintiffs are asking this Court to look to facts alleged within documents filed in other court cases “not to establish their existence, but rather to provide the reasoned basis for the court’s conclusion,” Global Network Commc’ns,
Further, I deny Plaintiffs’ request for leave to amend the Complaint to add allegations contained in their Request for Judicial Notice concerning Defendants’ conduct in these five cases. Although a court should grant leave to amend when justice so requires, see Fed.R.Civ.P. 15(a)(2), I find that it would be futile to do so under these facts, see Ruotolo,
Because Plaintiffs have failed to set forth facts plausibly suggesting a significant threat of injury, and have not suggested that they are in possession of facts that could cure those pleading deficiencies, Defendants’ Motion to Dismiss Plaintiffs’ claim for an injunction under Section 16 of the Clayton Act is granted, and Plaintiffs’ requests for judicial notice and, alternatively, leave to amend the Complaint are denied.
B. State-Law Claims
Next, Defendants make various arguments concerning why the Court should
1. Article III Standing of Named Plaintiffs
The named plaintiffs in this action are residents of Florida, Pennsylvania, and Illinois, respectively. (See Compl. ¶¶ 11-14.) Defendants argue that the named plaintiffs lack Article III standing to assert claims under the laws of states' in which they do not reside or did not suffer injury, and that they cannot acquire standing through the back door of a class action lawsuit. (See Ds’ Mem. 13-16; Ds’ Reply Mem. 6-7.) Plaintiffs argue that the issue of whether the named plaintiffs can raise claims on behalf of other class members is a class certification issue, and that when class certification is the source of potential standing problems, a court should make the class certification determination before deciding the standing issue. (See Ps’ Mem. 26-29.)
Generally, an Article III court must determine that it has jurisdiction over a plaintiff at the outset of a case. See Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC,
I join the courts in that growing consensus and find that class certification is logically antecedent to the issue of standing in this case. Defendants do not dispute that the named plaintiffs have standing to bring claims against Defendants under the state antitrust and consumer protection laws of Florida, Pennsylvania, and Illinois, the states in which Plaintiffs reside and purchased DDAVP. Thus, “this is not a case where the Named Plaintiffs are attempting to piggy-back on the injuries of the unnamed class members. Rather, each of the Named Plaintiffs asserts a[n] ... injury resulting from Defendants’ allegedly wrongful” conduct, Grand Theft Auto,
2. Preemption of Plaintiffs’ State-Law Antiti'ust and/or Consumer Protection Claims
In the Direct Purchaser Plaintiffs’ appeal in this case, the Second Circuit held that that class of plaintiffs had sufficiently alleged federal antitrust claims of the kind articulated in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp.,
Defendants argue that Plaintiffs’ state antitrust and/or consumer protection law claims are preempted by federal law because these claims are either based on misconduct before the PTO, which is preempted by federal patent law, or concern the “baseless citizen petition,” which is preempted by federal FDA law. (See Ds’ Mem. 6-13; Ds’ Reply Mem. 2-6.) Plaintiffs argue that their state-law Walker Process-type antitrust claims should not be preempted because such state-law claims do not stand as obstacles to the federal laws’ purposes and objectives, (See Ps’ Mem. 5-17.) Further, Plaintiffs argue that a claim predicated on a sham citizen petition “is an antitrust claim just as a
a. Conduct before the PTO
It appears that neither the Supreme Court nor an appellate court has analyzed the question of whether a plaintiff may bring state-law Walker Process-type antitrust claims predicated on fraudulent conduct before the PTO.
In Walker Process, the Supreme Court held that as long as a plaintiff could plead the intent and conduct elements of a Sherman Act violation, see 15 U.S.C. § 2, as well as that the defendant’s conduct had the ability to reduce or destroy competition, that plaintiff could pursue a federal antitrust claim predicated on a defendant’s maintenance and enforcement of a patent procured by knowing and willful fraud before the PTO.
In Abbott Laboratories v. Brennan,
Building off Abbott Laboratories, the Federal Circuit held in Dow Chemical Co. v. Exxon Corp.,
In Nobelpharma AB v. Implant Innovations, Inc.,
In Hunter Douglas, Inc. v. Harmonic Design, Inc.,
District courts have since attempted to apply this jurisprudence. For example, in Ciprofloxacin,
Plaintiffs argue that cases like Ciprofloxacin and K-Dur were wrongly decided, (Ps’ Mem. 14-17), and their arguments have some force. I need not go so far as to agree, however, in order to uphold their claims. Although the facts of this case differ in some ways from each of the cases discussed above, I find, consistent with Federal Circuit precedent, that Plaintiffs’ state-law Walker Process-type antitrust and/or consumer protection law claims are not preempted by federal patent law under these facts. Plaintiffs have plausibly pleaded both fraud on the PTO and bad-faith enforcement of the patent. As the Second Circuit in this case found, Plaintiffs have adequately pleaded the “intent to deceive” and “materiality” elements of a Walker Process fraud claim, See DDAVP Direct Purchaser Antitrust Litig.,
Likewise, because Plaintiffs plausibly allege bad-faith enforcement, Dow,
In any event, Defendants have cited no case law for the proposition that wrongful conduct beyond the PTO and in the marketplace is required where fraud on the PTO is alleged. Under Federal Circuit precedent, it seems that either fraud on the PTO or bad faith conduct in the marketplace is sufficient to strip a patent holder of its antitrust immunity and render an antitrust claim not preempted by patent law. See Hunter Douglas,
Finally, allowing state-law Walker Process-type antitrust claims will not impair the purposes or objectives of federal patent law. See Walker Process,
b. Citizen Petition
Plaintiffs are not preempted from basing their state-law antitrust and/or consumer protection claims in part on Defendants’ allegedly baseless citizen petition for similar reasons.
In Buckman Co. v. Plaintiffs’ Legal Committee,
Cases interpreting Buckman have refined the import of its holding based on different sets of facts. For example, in Desiano v. Warner-Lambert & Co.,
More recently, a district court within this Circuit looked at cases interpreting Buckman and stated that
a state law claim only endures if it manages to incorporate, but not depend entirely upon, an FDCA violation and is premised on conduct that would give rise to liability under traditional common law principles. On the other hand, if “defendant’s conduct is not of this type,” ie., would not expose it to liability but for the FDCA, then the plaintiff is effectively suing for a violation of the FDCA (no matter how the plaintiff labels the claim), and the plaintiffs claim is thus impliedly preempted under Buckman.
In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig.,
Here, neither party has cited a case that analyzes whether state-law antitrust and/or consumer protection claims based on an allegedly baseless citizen petition are preempted by the FDCA, and the Court is aware of none.
3. Other Grounds for Dismissing Plaintiffs’ State-Law Claims
Defendants argue that if Plaintiffs’ state-law claims are not dismissed on standing or preemption grounds, they should be dismissed for other reasons. I address each of Defendants’ arguments below.
a. Arizona. Colorado, Idaho, Michigan, Nevada, New Mexico, New York, South Dakota and Tennessee Consumer Protection Laws
Defendants argue that the consumer protection laws of Arizona, Colorado, Idaho, Michigan, Nevada, New Mexico, New York, South Dakota and Tennessee do not apply to antitrust violations or similar anti-competitive conduct, but rather “only apply to conduct that constitutes a fraud upon consumers, ” and that because there are no allegations that Defendants engaged in communications with any of the Indirect Purchaser Plaintiffs, the claims fail. (Ds’ Mem. 16-17 (emphasis in original); see Ds’ Reply Mem. 8 (“It is not sufficient to allege a fraud upon government entities (e.g., the PTO, FDA, or federal courts) that may have indirectly caused consumers to pay higher prices for a product.”)) Plaintiffs argue that many courts have held that a direct representation to a consumer is unnecessary, and that they have alleged deception before the PTO and the FDA by Defendants that led consumers to pay too much for DDAVP. (See Ps’ Mem. 29-31.)
As will become clear in the analysis below, I find at this stage that Plaintiffs have plausibly pleaded misrepresentations that, although they may not have been made directly to consumers, had the kind of effect on end payors that these statutes seek to remedy. See, e.g., Fionase,
1. Arizona
To state a claim of consumer fraud under the Arizona Consumer Fraud Act (the “ACFA”), Ariz.Rev.Stat. Ann. §§ 44-1521 to -1534, “a plaintiff must show [that the defendant made] ‘a false promise or misrepresentation ... in connection with the sale or advertisement of merchandise and consequent and proximate injury resulting from the promise.’ ” Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC,
An allegation that a defendant engaged in deception, even if to a regulatory agency rather than consumers directly, may be sufficient to state a claim under the ACFA. See Flonase,
Here, Plaintiffs allege that Defendants submitted fraudulent declarations to the PTO, which caused the '398 patent to issue, and brought a baseless citizen petition before the FDA in which Ferring failed to cite an Aventis study “that reached conclusions flatly inconsistent with Ferring’s own position,” (Compl. ¶ 111), thereby violating 21 C.F.R. § 10.30(b)’s requirement to submit all representative data and information known to the petitioner that is unfavorable to the petition. Because of Ferring’s alleged fraudulent conduct before the PTO and misrepresentations to the FDA, Barr and Teva were delayed in bringing generic DDAVP drugs to market, and Plaintiffs paid supra-competitive prices for DDAVP, thereby sustaining “consequent and proximate injury” from Defendants’ alleged fraudulent conduct. Kuehn,
2. Colorado
Defendants argue that Plaintiffs fail to allege a deceptive trade practice that induced the Plaintiffs to act or refrain from acting, and thus the claims under the Colorado Consumer Protection Act (the “CCPA”), Colo.Rev.Stat. §§ 6-1-101 to -115, should be dismissed. (Ds’ Mem. 17-18.) To state a private cause of action under the CCPA, a plaintiff must show:
(1) that the defendant engaged in an unfair or deceptive trade practice; (2) that the challenged practice occurred in the course of defendant’s business ...; (3) that it significantly impacts the public as actual or potential consumers of the defendant’s goods ...; (4) that the plaintiff suffered injury in fact to a legally protected interest; and (5) that the challenged practice caused the plaintiffs injury.
Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc.,
In Hall, the Supreme Court of Colorado held that a misrepresentation made to a third party could be actionable under the CCPA. In that case, in extensive advertising of individual lots for sale in a subdivision, petitioners told potential purchasers that they would have legal access to their properties by two access routes, one of which was a road that ran through respondents’ land. As a result of this misrepresentation, respondents were injured when petitioners and purchasers cut locks and knocked down fences and gates to gain access to respondents’ land. The court held that respondents’ injuries were causally linked to petitioners’ deceptive practices, and thus respondents stated a claim under the CCPA, even though petitioners never made misrepresentations directly to respondents. See
Although the Sheet Metal court determined that a CCPA claim fails where the deceptive conduct is not aimed at consumers, I do not find a basis in caselaw for that determination. Rather, relying on the holdings of Hall and Warner, I find that Plaintiffs have plausibly pleaded a claim under the CCPA based on Defendants’ fraudulent conduct before the PTO and FDA, which injured Plaintiffs by causing them to pay supra-competitive prices for DDAVP. See, e.g., Remediation Prods., Inc. v. Adventus Ams., Inc., No. 07-CV-153,
3. Idaho
Defendants argue that Plaintiffs’ claims under the Idaho Consumer Protection Act (the “ICPA”), Idaho Code Ann. §§ 48-601 to -619, must be dismissed because Plaintiffs fail to allege deceptive or unconscionable conduct aimed at consumers. (Ds’ Mem. 18.) “The purpose of [the ICPA] is to protect both consumers and businesses
Defendants have not cited ease law in which a court has dismissed consumers’ claims under the ICPA if they suffered monetary loss as a result of a defendant’s deceptive acts toward a third party. Further, Defendants only cite to Sheet Metal, a case where the court: (1) determined (unlike here) that defendants had not engaged in fraudulent conduct, see
4. Michigan
Defendants argue that Plaintiffs’ claims under the Michigan Consumer Protection Act (the “MCPA”), Mich. Comp. Laws §§ 445.901-.922, must be dismissed because Plaintiffs fail to allege injuries caused by Defendants’ false representations. (Ds’ Mem. 18.) What qualifies as an unfair, unconscionable, or deceptive method, act, or practice within the meaning of MCPA closely tracks those acts enumerated in the ICPA, including “[clausing a ... misunderstanding as to the ... sponsorship [or] approval ... of goods,” “Representing that goods ... have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have,” or “[flailing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.” Mich. Comp. Laws §§ 445.903(1)(a), (c), (s). Although the Michigan Court of Appeals has stated that because many of the MCPA’s prohibited practices involve fraud, the statute should be construed with reference to the common-law tort of fraud, meaning that “a plaintiff must have suffered injury as a result of his reliance on the defendant’s false representation,” Mayhall v. A.H. Pond Co.,
5. Nevada
Defendants argue that Plaintiffs’ claims under the Nevada Deceptive Trade Practices Act (the “NDTPA”), Nev.Rev.Stat. §§ 598.0903-.0999, should be dismissed because Plaintiffs do not allege any deceptive trade practices that “exploited] unwitting consumers.” (Ds’ Mem. 18-19.) Additionally, Defendants argue that only elderly or disabled persons may bring NDTPA claims in private actions, and therefore all claims under the NDPTA not alleged by elderly or disabled Plaintiffs should be dismissed. (Id. at 19 (citing Nev. Rev. State. Ann. § 598.0977).)
I find Defendants’ first argument to be without merit. The Nevada statute entitled “Actions by victims of fraud,” states that “[a]n action may be brought by any person who is a victim of consumer fraud,” Nev.Rev.Stat. § 41.600(1), and defines “consumer fraud” to include a “deceptive trade practice as defined in [NDTPA Sections] 598.0915 to 598.0925, inclusive,” id. § 41.600(2)(e). Under NDTPA Section 598.0915, a “deceptive trade practice” is defined as, among other things, “[k]nowingly mak[ing] a false representation as to the ... sponsorship, approval or certification of goods or services for sale” or “[k]nowingly mak[ing] a false representation as to the characteristics, ingredients, uses, benefits, alterations or quantities of goods or services for sale.” Nev.Rev.Stat. § 598.0915(2), (5); see Picus v. Walr-Mart Stores, Inc.,
Although Plaintiffs do not oppose Defendants’ contention that only elderly or disabled people may bring claims under the NDPTA, (Ds’ Mem. 19), and I could thus deem Plaintiffs claim abandoned, see, e.g., Laurent v. G & G Bus Serv., Inc., No. 10-CV-4055,
6. New Mexico
Defendants argue that Plaintiffs’ claims under the New Mexico Unfair Practices Act (the “NMUPA”), N.M. Stat. Ann. §§ 57-12-1 to -26, fail because they do not allege that Defendants made misrepresentations to consumers in connection with a sale or other similar transaction. (Ds’ Mem. 19.) Like the Arizona statute previously discussed, the NMUPA defines an “unfair or deceptive trade practice” in relevant part as “a false or misleading ... representation of any kind knowingly made in connection with the sale ... of goods ... by a person in the regular course of the person’s trade or commerce, that may, tends to or does deceive or mislead any person,” including “causing ... misunderstanding as to the ... sponsorship [or] approval ... of goods” or “representing that goods ... have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have.” N.M. Stat. Ann. § 57-12-2(D)(2), (5); see In re Aftermarket Filters Antitrust Litig., No. 08-CV-4883,
7. New York
Defendants argue that Plaintiffs have failed to allege a ■deceptive act targeted at consumers (as opposed to a federal agency or a competitor), as is required to plead a claim under New York Deceptive Acts and Practices Law, N.Y. Gen. Bus. Law § 349 (“Section 349”). (Ds’ Mem. 19-20.) The New York State legislature passed Section 349 to provide a private right of action to consumers injured by “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349(a); see Gaidon v. Guardian Life Ins. Co., of Am.,
The first element of a Section 349 claim requires a plaintiff to plead a “consumer-oriented act,” a term that is “construed liberally” and includes actions that “cause any ‘consumer injury or harm to the public interest.’ ” New York v. Feldman,
For the reasons already stated, because Defendants’ conduct was plausibly “imbued with a degree of subterfuge,” Leider,
Defendants argue that Plaintiffs’ claims under the South Dakota Deceptive Trade Practices Act (the “SDDTPA”), S.D. Codified Laws §§ 37-24-1 to -51, should be dismissed for failure to allege deceptive acts made in connection with a sale or advertisement and/or a misrepresentation of fact on which Plaintiffs relied that caused injury. (D’s Mem. 20.) Under the SDDTPA, it is a deceptive trade practice to “[kjnowingly and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false promises, or misrepresentation or ... conceal, súppress, or omit any material fact in connection with the sale or advertisement of any merchandise, regardless of whether any person has in fact been mislead, deceived, or damaged.” S.D. Codified Laws § 37-24-6(1). Further, “[a]ny person who claims to have been adversely affected by any act or a practice declared to be unlawful by § 37-24-6 shall be permitted to bring a civil action for the recovery of actual damages suffered as a result of such act or practice.” Id. § 37-24-31. Because Defendants made misrepresentations to the PTO and FDA, which in turn allowed Defendants to manufacture and market DDAVP to consumers on the premise that the patent underlying DDVAP was legally obtained, Plaintiffs were “adversely affected” by the fraud committed by Defendants within the meaning of the SDDTPA when they relied on such representations and paid supra-competitive prices for the drug. Cf. Brookings Mun. Utils., Inc. v. Amoco Chem. Co.,
9. Tennessee
Defendants argue that only individual consumers may raise claims under the Tennessee Consumer Protection Act (the “TCPA”), Tenn.Code Ann. §§ 47-18-101 to -130, and that such claims cannot be raised in the context of a class action lawsuit. (Ds’ Mem. 22). I agree. The TCPA states:
Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice ... declared to be unlawful by this part, may bring an action individually to recover actual damages.
Tenn.Code Ann. § 47-18-109(a)(1) (emphasis added). In Walker v. Sunrise Pontiac-GMC Truck, Inc.,
b. Mississippi, New Hampshire, and North Carolina Antitrust Laws
Next Defendants argue that the Plaintiffs fail to allege intrastate activity in Mississippi, New Hampshire, and North Carolina, which Defendants contend is a required element under each state’s antitrust statute. (Ds’ Mem. 21-22.)
1. Mississippi
The Mississippi Antitrust Act (the “MAA”), Miss.Code. Ann. §§ 75-21-1 to -39, prohibits agreements to “restrain trade,” “increase ... the price of a commodity,” or “hinder competition in the production, importation, ... sale or purchase of a commodity,” id. § 75-21-1(a), (b), (d). Defendants argue that Mississippi’s antitrust laws are limited to intrastate conduct and the Plaintiffs’ failure to allege state-specific activity is reason to dismiss their MAA claims, (Ds’ Mem. 21), but case law does not support Defendants’ contention. A violation of the MAA “must have as one of its objects a monopoly in the intrastate trade ... to be accomplished in part at least by transactions which are also wholly intrastate,” Standard Oil Co. of Ky. v. State,
Here, Plaintiffs allege that the Plaintiffs who resided in Mississippi and purchased DDAVP there were forced to pay higher prices for the drug due to the Defendants’ fraudulent and anticompetitive behavior. Even though that conduct did not occur exclusively within Mississippi, the statute only requires that the product be “incorporated into the general mass of property in the state,” Intel Corp.,
The New Hampshire Consumer Protection Act (the “NHCPA”), N.H. Rev. Stat. Ann. §§ 358-A:l to :13, states that it is “unlawful for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce within this state.” Id. § 358-A:2. Section 358-A:1 defines (“[t]rade’ and ‘commerce’ [to] include ... any trade or commerce directly or indirectly affecting the people of this state.” Id. § 358-A:1(II). The New Hampshire legislature intended for the NHCPA to have a “broad sweep,” and thus any “conduct which was part of trade or commerce that had direct or indirect effects on the people of [New Hampshire]” satisfies the statute. LaChance v. U.S. Smokeless Tobacco Co.,
Here, too, Plaintiffs state a claim under the NHCPA because they allege that the putative Plaintiffs located in New Hampshire had to pay higher prices for DDAVP because of Defendants’ alleged deception. Because New Hampshire commerce and citizens of the state were affected by Defendants’ allegedly deceptive conduct, Defendants’ Motion to Dismiss the NHCPA claims is denied.
3. North Carolina
Defendants argue that North Carolina’s Unfair and Deceptive Trade Practices Act (the “NCUDTPA”), N.C. Gen. Stat. §§ 75-1 to -49, applies “only to ‘trade or commerce in the state of North Carolina,’ ” (Ds’ Mem. 22 (quoting N.C. Gen. Stat.
§ 75-2, 1)), but the NCUDTPA explicitly states that “[i]t is unlawful for any person to monopolize ... any part of trade or commerce in the State of North Carolina,” N.C. Gen. Stat. § 75-2.1 (emphasis added). Defendants’ Motion to Dismiss these claims on the ground that the NCUDTPA does not reach goods brought into North Carolina for sale is therefore denied. See Sheet Metal,
4. Unjust Enrichment Claims
Next, Defendants move on several grounds to dismiss Plaintiffs’ unjust enrichment claims, which are brought under the laws of each of the fifty states and the District of Columbia, (Compl. ¶ 148), arguing that unjust enrichment claims may not stand where they (1) conflict with a state’s limitation on indirect purchaser antitrust suits, (2) do not allege the direct provision of a benefit from plaintiff to defendant, and/or (3) do not provide an independent basis for relief when no other legal violation is alleged. (See Ds’ Mem. 22-25.)
a. States that Follow Illinois Brick
Defendants first argue that some state laws preclude indirect purchaser unjust enrichment claims based on the rule set forth in Illinois Brick Co. v. Illinois,
In Illinois Brick, the Supreme Court held that only direct purchasers could sue for unjust benefits gained by a defendant manufacturer through anticompetitive conduct that violated federal antitrust laws. See
Although the King Drug decision that Plaintiffs cite on this issue is not without force, this Court finds more persuasive Chief Judge Preska’s well-reasoned Digital Music opinion — and similar decisions — 'that determined that indirect purchaser plaintiffs “may not recover restitution in states that follow the rules of Illinois Brick” and that therefore states that have “not expressly passed Illinois Brick repealer legislation or interpreted [their] law in such a way as to override the rule of Illinois Brick [are] presumed to have decided to follow federal law, including the Illinois Brick limitation on indirect purchaser claims.” Digital Music,
Defendants contend that Alaska, Colorado, Connecticut, Delaware, Indiana, Kentucky, Louisiana, Maryland, Missouri, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Car
b. Direct Benefít from Plaintiffs to Defendants
Next, Defendants argue that for Plaintiffs to successfully plead unjust enrichment claims under Florida, Idaho, New York, and North Dakota law, they must allege that Defendants received a direct benefit from Plaintiffs, and they cannot do so because Plaintiffs did not purchase DDAVP directly from Defendants. (Ds’ Mem. 23-24; Ds’ Reply Mem. 10.) Plaintiffs argue that (1) the laws of these states do not require a direct benefit, and (2) alternatively, Plaintiffs have alleged that they “conferred a benefit on Defendants by purchasing DDAVP at inflated prices[,] .... allegations [that] are sufficient to show that a benefit was bestowed on Defendants, and that the Defendants were therefore unjustly enriched at Plaintiffs’ expense.” (Ps’ Mem. 34-35.)
On this issue, courts have disparately applied Florida law, compare, e.g., Processed Egg Prods.,
Under this set of facts, at this stage of the case, 1 agree with Plaintiffs — • that is, that despite not having direct dealings (contractual or otherwise) with Defendants, Plaintiffs plausibly conferred some benefit on Defendants, albeit indirectly, by purchasing DDAVP at elevated prices, and Defendants profited from the individual demand of the DDAVP consumers, the ultimate victims of Defendants’ unlawful conduct. Therefore, Defendants’ Motion to Dismiss Plaintiffs’ Florida and New York unjust enrichment claims is denied. See In re Cardizem CD Antitrust Litig.,
Under Idaho law, “[t]he elements of unjust enrichment are that (1) a benefit is conferred on the defendant by the plaintiff; (2) the defendant appreciates the benefit; and (3) it would be inequitable for the defendant to accept the benefit without payment of the value of the benefit.” Harris, Inc. v. Foxhollow Constr. & Trucking, Inc.,
c. Autonomous Enrichment Claims
Finally, Defendants argue that that “courts have refused to permit state ‘unjust enrichment’ claims to proceed when there is no other state law basis for the relief sought by the plaintiff,” and thus “have dismissed ‘unjust enrichment’ claims in conjunction with their dismissal of plaintiffs’ state antitrust or consumer protection claims.” (Ds’ Mem. 24; see Ds’ Reply Mem. 9 (“[I]f no claim in this case arises under a state’s consumer or trade statute, unjust enrichment law does not magically create a cause of action out of thin air,”).)
Some courts analyzing this issue have held that allowing plaintiffs to recover on a claim of autonomous restitution “would undermine state legislative policies and an entire body of substantive law,” Flonase,
Courts interpreting Tennessee law have disagreed as to whether plaintiffs may bring freestanding unjust enrichment claims. Some courts have allowed autonomous unjust enrichment claims to move forward because their “viability ... does not hinge upon the success of the state statutory antitrust claims,” a finding that one court determined was “buttress[ed]” by the fact that — in that court’s opinion— the Tennessee Supreme Court expressly permitted indirect purchasers to bring independent unjust enrichment claims. D.R. Ward Constr. Co. v. Rohm & Haas Co.,
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiffs’ Request for Judicial Notice is DENIED. The Court dismisses Plaintiffs claims for (1) an injunction under Section 16 of the Clayton Act, (2) violations of the TCP A, and (3) unjust enrichment under Idaho and North Dakota law and under the laws of the states that follow Illinois Bñck (Alaska, Colorado, Connecticut, Delaware, Indiana, Kentucky, Louisiana, Maryland, Missouri, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, and Texas). The Clerk of Court is respectfully directed to terminate the pending motions. (Docs. 103, 109.) The parties are to appear for a status conference on October 31, 2012 at 3:00 p.m.
SO ORDERED.
Notes
. The case was reassigned to me after Judge Brieant passed away. (Doc. 72.)
. Plaintiffs are various health benefits providers who allegedly paid supra-competitive prices for DDAVP or its generic equivalents as a result of Defendants alleged conduct, as well as an individual who also allegedly paid too much for the same drug. (Compl. ¶¶ 11-16.)
. These twenty-eight jurisdictions are: Arizona, Arkansas, California, Colorado, the District of Columbia, Florida, Hawaii, Idaho, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin. (Id. ¶ 140.)
. "Ds’ Mem.” refers to the Memorandum of Points and Authorities in Support of Defendants’ Joint Motion to Dismiss the Indirect Purchaser Plaintiffs’ Amended Consolidated Class Action Complaint. (Doc. 104.) "Ds' Reply Mem." refers to the Reply Memorandum of Points and Authorities in Support of Defendants’ Joint Motion to Dismiss the Indirect Purchaser Plaintiffs’ Amended Consolidated Class Action Complaint. (Doc. 106.)
. "Ps' Mem.” refers to the Indirect Purchaser Plaintiffs’ Memorandum of Law in Opposition to Defendants' Joint Motion to Dismiss Indirect Purchaser Plaintiffs' Amended Consolidated Class Action Complaint. (Doc. 107.)
. "Ps' Req. for Judicial Notice” refers to Plaintiffs’ Request for Judicial Notice in Support of their Memorandum of Law in Opposition to Defendants’ Joint Motion to Dismiss. (Doc. 109.)
. "Ds’ Opp.” refers to Defendants’ Opposition to Plaintiffs' Request for Judicial Notice. (Doc. 105.)
. In Walker Process, the Supreme Court held that — a plaintiff could raise a Sherman Act claim — a federal antitrust cause of action— based on an assertion that a patent was obtained by fraud on the PTO, as long as the plaintiff could plead all the elements of a Sherman Act claim.
. Ciprofloxacin and Daiichi Sankyo are distinguishable from the instant case because the district courts in both cases found that plaintiffs had failed to allege fraud before the PTO. In Ciprofloxacin, the court specifically stated that a patent that was held to be invalid could “be a candidate for Walker Process fraud,” but that that finding could not be made under the facts of that case.
. The dearth of case law on this issue may indicate that such claims are not preempted by FDA law. Moreover, parties have brought sham citizen petition claims in the context of antitrust litigation and it does not appear that the issue of preemption was raised in those cases. See, e.g., In re Flonase Antitrust Litig.,
. A fraud-on-the-FDA claim is akin to the abuse-of-process claim that was found preempted in Abbott Laboratories, which I have already found is not analogous to the issues here. Both in Buckman and Abbott Laboratories, plaintiffs sought only to bring claims that would remedy the misconduct before a federal agency. As previously stated, Plaintiffs' antitrust and consumer protection claims here seek to remedy a wrong separate from the alleged fraud before the PTO and the sham citizen petition filed with the FDA namely, Defendants' alleged conduct that had the effect of keeping generic DDAVP manufacturers out of the marketplace, which in
. Further, Defendants’ argument, (Ds’ Mem. 12), that allowing this case to go forward would frustrate the Congressional goal of encouraging full disclosure to the FDA is, to put it charitably, without merit. It is difficult to see how allowing Plaintiffs to use a Defendant’s misleading submission to the FDA as evidence of monopolistic intent could do anything other than discourage such misleading conduct and ' encourage the fullest possible disclosure. Likewise, Defendants’ argument that Plaintiffs here are trying to police citizen petitions, (id.), is meritless. Plaintiffs are not seeking any remedy that would vindicate the FDA, but are simply trying to use Defendants’ alleged misconduct before the FDA as evidence of Defendants' monopolistic intent.
. Defendants argue that Plaintiffs’ claim under Article 14, Section 15 of the Arizona Constitution, (Compl. ¶ 140(a)), must be dismissed because "there is no separate claim under that state’s constitutional provision.” (Ds’ Mem. 17 n. 8.) Defendants cite to Bunker's Glass Co. v. Pilkington plc,
. I respectfully disagree with the courts in In re Wellbutrin XL Antitrust Litig.,
. Because I find that Plaintiffs cannot raise TCPA claims within the context of a class action lawsuit, I need not reach Defendants’ other argument that the TCPA does not apply to antitrust claims. (Ds’ Mem. 20.)
. Unjust enrichment claims generally take two forms: (1) "parasitic” — in other words, "[wjhere the unjust enrichment is based upon a predicate wrong, such as a tort, breach of contract or other wrongful conduct such as an antitrust violation,” Flonase,
. In my view, the Freeman court did not expressly reach the issue of whether indirect purchasers may bring autonomous unjust enrichment claims. Rather, after dismissing the Tennessee Trade Practices Act ("TTPA”) claim, see Term. Code. Ann. §§ 47-25-101 to -115, the court went on to discuss why the trial court had erred in denying defendants’ motion for summary judgment on the plaintiff's unjust enrichment claim where the plaintiff had failed to establish a disputed issue of material fact as to the exhaust ion-of-remedies element of that claim. That the Court discussed the issue, rather than summarily concluding that the unjust enrichment claim failed because the TTPA claim failed,