MEMORANDUM
I. Introduction
Wе consider here defendant Gilead Sciences, Inc.’s (“Gilead”) motion to dismiss under Fed.R.Civ.P. 12(b)(6). Plaintiffs— the Southeastern Pennsylvania Transportation Authority (“SEPTA”), John Doe, and Jane Doe — are suing Gilead on behalf of themselves and others similarly situated alleging that Gilead’s pricing scheme for the sale of its patented Hepatitis C drugs violates Section 1557(a) of the Patient Protection and Affordable Care Act, constitutes unjust enrichment, breaches the im
We have jurisdiction over plaintiffs’-federal claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction -over their state law claims pursuant to 28 U.S.C. § 1367.
II. Standard of Review
A defendant moving to dismiss under Fed.R.CivJP. 12(b)(6) bears the burden of proving that the plaintiff has failed to state a claim for relief. See Fed.R.Civ.P. 12(b)(6); see also, e.g., Hedges v. United States,
As the Supreme Court stresses, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action...... do not suffice.” Id. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly,
First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’
Fowler v. UPMC Shadyside,
We recite ■ the relevant facts as they appear in- the Amended Complaint.
III. Factual Background
Defendant Gilead manufactures Sovaldi and Harvoni, two highly effective — and profitable — treatments for Hepatitis C. Amend. Compl. at ¶¶ 1-3, 29, 37. Twelve-week courses of Sovaldi and Harvoni cost $84,000 and $94,500, respectively. Id. at ¶6. Gilead has made billions of dollars from the sale of these drugs. Id. at ¶ 91.
Plaintiff SEPTA is the regional transportation authority for public transit serving Bucks, -Chester,' Delaware, Montgom
Plaintiff Jane Doe is a resident of Souderton, Pennsylvania, whose insurance company denied her coverage for Sovaldi after she was diagnosed with Hepatitis C, and who Gilead said was ineligible for its Patient Assistance program because of her private insurance. Id. at ¶21. Plaintiff John Doe is a resident of Sun City West, Arizona, whose insurance company also denied him coverage for Sovaldi after his Hepatitis C diagnosis. Id. at ¶ 22.
Plaintiffs allege that Gilead sells sofosbuvir — the active ingredient in Sovaldi and Harvoni — at much lower prices abroаd and has announced plans to license a generic version of its drugs in developing countries at deeply discounted prices. Id. at ¶¶ 7-8, 38-39. Some federal agencies and large prescription benefit managers also receive significant discounts on Sovaldi. Id. at ¶¶ 7, 41-42, 47. But, as a result of Gilead’s domestic pricing scheme, many consumers — such as Jane Doe and John Doe — and government programs have been unable to obtain either Sovaldi or Harvoni. Id. at ¶¶ 10-11. Some health insurers and prescription benefit managers have been rationing, delaying, or limiting the availability of Sovaldi and Harvoni. Id: at ¶¶ 11, 62-63, 65. Plaintiffs allege that Gilead’s pricing scheme “has had a disproportionately adverse impact oh racial minorities and those in lower income brackets.” Id. at ¶ 12. State Medicaid programs have also developed strict protocols to limit the provision of Sovaldi and Harvoni to only the sickest patients. Id. Some prescription benefit managers have responded to these high prices by entering into exclusive deals with Gilead or one of its competitors, Abb Vie, Inc., in order to obtain Sovaldi and Harvoni at discounted prices. Id. at ¶ 13. Citing to several specific exclusivity contracts Gilead has with Express Scripts, CVS, Anthem, Inc., Prime Therapeutics LLC, and Aetna, plaintiffs argue that such deals demonstrate that Gilead overpriced Sovaldi and Harvoni in 2014. Id. at ¶¶ 49, 51, 53, 55, 58-59.
Plaintiffs also claim that these drugs are overpriced as evidenced by the fact that they are priced more like “orphan drugs” — drugs for rare conditions (even though Hepatitis C is not a rare disease)— thereby violating “an unwritten rule in the pharmaceutical industry that orphan drugs would be priced high because of the low number of treatments.”" Id. at ¶¶ 86-88. Plaintiffs allege that Gilead’s prices preclude patients from gaining access' to Sovaldi or Harvoni and force third party payers, like SEPTA, to pay “exorbitant prices.” Id. at ¶ 16. Plaintiffs also allege that Gilеad’s Patient Assistance Program does not “provide meaningful access” to: Sovaldi and Harvoni because of bureaucratic hurdles and paperwork requirements. Id. at ¶¶ 72, 74-76.
Gilead justifies its prices based partly on its prediction that the drugs allow patients to avoid future healthcare expenses — such as liver transplants — and cure “a horrible disease in a very rapid time frame.” Id. at ¶ 95. Plaintiffs assert that Gilead’s justifications for its high prices are “bogus.” Id. at ¶ 96. Plaintiffs also allege that Gilead’s patents might be vulnerable. Id. at ¶ 99. Plaintiffs, on behalf of themselves and those similarly situated, are suing Gilead “to stop this unconscionable and unfair conduct, and to secure appropriate relief for consumers and third party payers who
IV. Discussion
In Count I, plaintiffs allege unjust en- • richment because of Gilead’s “patently unconscionable” “price gouging” and because its prices are “unreasonable, excessive, arbitrary, discriminatory, inflated, exorbitant and inflated.” Id. at ¶¶ 127-29. In Count II, plaintiffs Jane Doe and John Doe allege discrimination in violation of Section 1557 of the Patient Protection and Affordable Care Act. Id. at ¶¶ 130-39. In Count III, plaintiffs argue Gilead has breached the duty of good faith and fair dealing by “demanding the excessive prices it charged for Sovaldi and Harvoni.” Id. at ¶ 143. In Counts IV and V plaintiffs argue that Gilead has violated California Business & Professions Code § 17200 which prohibits unfair competition. Id. at ¶¶ 140-54. Plaintiffs also seek class certification and to represent the class as a whole. Id. at ¶¶ 117-23.
Gilead moves to dismiss plaintiffs’ entire Amended Complaint. MTD at 2.
We first consider plaintiffs’ federal claim under the Affordable Care Act and then them state law claims.
A. Affordable Care Act Claim
In Count II, individual plaintiffs Jane Doe and John Doe allege that Gilead has discriminated against them, and similarly situated class members, in violation of Section 1557 of the Affordable Care Act. Amend. Compl. at ¶¶ 137-39. Section 1557 contains an anti-discrimination provision that “an individual shall not, on [the basis of any protectеd ground], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance.” 42 U.S.C. § 18116. Protected grounds include race, color, national origin, sex, age, and disability. Id. (citing to Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973).
Plaintiffs argue that Gilead’s pricing violates Section 504 of the Rehabilitation Act and Title VI of the Civil Rights Act because it both discriminates against persons with disabilities and “Gilead’s pricing— while perhaps not intentionally discriminatory — has had a disparate impact on minorities.” Amend. Compl. at ¶ 133; PI. Resp. at 17. Plaintiffs’ theory of discrimination on the basis of disability is that the pricing scheme: (1) charges more to people with Hepatitis C in the United States as opposed to abroad, (2) charges more to thosе with Hepatitis C who are not part of health programs or plans that have entered into contracts for discounts with Gilead, (3) causes health plans and programs to refuse or limit access to the drugs, and (4) denies access because of the “excessive and discriminatory pricing practices, contracts and policies.” PI. Resp. at 19-20. Plaintiffs’ theory of discrimination on the basis of race is that Gilead has intentionally discriminated against minorities by being deliberately indifferent to the fact that “Hepatitis C victims are disproportionately African Americans” and pricing its drugs “in a manner that would negatively impact racial minorities’ access.” Id. at 33.
Gilead contends that plaintiffs’ claim fails because (1) they have not shown Gilead discriminates on the basis of who has Hepatitis C, (2) a neutral price is not discriminatory, and (3) simply having Hepatitis C is not a disability. MTD at 7. Gilead also argues that plaintiffs have failed to show that its “conduct adversely affected racial minorities compared to non-minorities.” Def. Reply at 4.
There are very few cases interpreting Section 1557 of the Affordable Care Act.
42 U.S.C. § 18116 — Nondiscrimination provides:
(a)In general
Except as otherwise provided for in this title (or an. amendment made by this title), an individual shall not, on the ground prohibited under title VI of the CM Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any.entity established under this title (or amendments). The enforcement mechanisms prоvided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of .violations of this subsection.
(b) Continued application, of laws
Nothing in this title (or an amendment made by this title) shall be construed to invalidate or-limit the rights,' remedies, procedures, or legal standards available to individuals aggrieved under [title VI and title VII of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, or' the Age Discrimination Act of 1975], or to supersede State laws that provide additional protections against discrimination ..on any basis described in subsection (a).
(c) Regulations
The Secretary may promulgate regulations to implement this section.
We begin with the plain language of the statute. Lamie v. United States Tr.,
Section 1557 expressly incorporates four federal civil rights statutes and includes the kind of rights-creating language found in thosе statutes. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground' of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”); 20 U.S.C. § 1681 (“No person in the United States shall, ,on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance .,. ”); 42 U.S.C. § 6102 (“[N]o person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.”); 29 U.S.C. § 794 (“No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance____”).
Section 1557 cross-references these four federal civil rights statutes to provide the classes of those protected by the statute’s non-discrimination provision. The cross-reference to these statutes and the use of similar rights-creating terms manifest Congressional intent to create a private right. See 42 U.S.C. § 18116(a) (“an individual shall not, on the ground prohibited [under the federal civil rights statutes], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under” a variety of programs and activities). Further, 42 U.S.C. § 18116(a) expressly provides that the “enforcement mechanisms provided for and available'under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection.” Such- express incorporation of the enforcement mechanisms from those statutes is probative of Congressional intent to рrovide both a private right and a private remedy for violations of Section 1557.
We therefore find that Congress intended to create a private right of action for alleged violations of Section 1557. Further, Congress’s express incorporation of the enforcement mechanisms from those four federal civil rights statutes, as well as its decision to define the protected classes by reference thereto, manifests an intent to import the various different standards and burdens of proof into a Section 1557
2. Section 1557 And Disability
The Rehabilitation Act adopts the scheme of “remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964 ... to remedy alleged violations of Sеction 504 by recipients of federal funding.” A.W. v. Jersey City Pub. Schs.,
To state a claim under Section 504, a plaintiff must demonstrate that she is (1) a qualified'individual with a disability (2) who was denied the benefits of a program or activity which receives federal funds (3) on the basis of her disability. Calloway v. Boro of Glassboro Dep’t of Police,
We must determine whether the individual plaintiffs are qualified individuals with disabilities who have been denied the bene
Plaintiffs’ claim fails to state a viable cause of action under the Affordable Care Act on the basis of Section 504 of the Rehabilitation Act. Plaintiffs’ claim — by them own admission — is that Gilead charges too much for drugs that are quite effective at treating a disease that when left untreated, can cause cirrhosis, liver cancer, and death. Id. at ¶27. None of the plaintiffs’ theories connecting the high price of Gilead’s drugs to Jane Doe and John Doe’s inability to obtain those drugs states a viable claim under either the Rehabilitation Act or the Affordable Care Act. There are no allegations that Gilead changes the prices of. its drugs depending upon whether the potential consumer has Hepatitis C. While obviously only patients with a Hepatitis C diagnosis would try to acquire these drugs in the first place, that type of obvious barrier is an example''of the Supreme Court’s concern in Alexander v. Choate about interpreting Section 504 so as to reach all claims of disparate impact discrimination. Plaintiffs'’ other theories of discrimination similarly fail to demonstrate that Gilead is excluding individual plaintiffs from purchasing its drugs on the basis of membership in a protected class. The Rehabilitation Act protects individuals from discrimination on the basis of disability. Plaintiffs’ theories of discrimination are a hodgepodge of complaints about the unfairness of how pharmacеutical companies adjust pricing to accommodate international markets or bulk purchasers that do not implicate discrimination on the basis of disability. As articulated, none of these theories would support a class action claim.
We also note that plaintiffs’ allegations do not establish that Jane Doe and John Doe are disabled, but rather only thal they have been diagnosed with Hepatitis G. A disability is a physical or mental impairment that substantially limits one or more major life activities. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1)(A). Plaintiffs’ statement in Paragraph 132 of the Amended Complaint that all persons with Hepatitis C are disabled within the meaning of Section 504 of the Rehabilitation Act is a legal — not factual — assertion, and therefore we may disregard it. There are no allegations in the Amended Complaint that Hepatitis C substantially limits one or more major life activities for either individual plaintiff. See Amend. Compl. at ¶ 21-22 (notably omitting any assertions regarding how Hepatitis C substantially limits one or more of Jane Doe or John Doe’s major life activities). Merely having Hepatitis C is not a disability. See Ellis v. Mohenis Sens., Inc.,
3. Section 1557 And Race
To state a claim under Title VI of the Civil Rights Act,, a plaintiff must show that he or she (1) was a member of a protected class, (2) qualified for the benefit or program at issue, (3) suffered an adverse action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Blunt v. Lower Merion Sch. Dist.,
Plaintiffs’ claim fails to state a viable cause of action under the Affordаble Care Act on the basis of Title VI. Plaintiffs have not alleged that either of the individual plaintiffs is a member of -a protected class on the basis of their race, and plaintiffs have not brought a class action on behalf of racial minorities. See Amend. Compl. at ¶¶ 117-123 (neglecting to mention any allegations of racial discrimination). Plaintiffs have failed to explain how, other than by virtue of their Hepatitis C diagnosis, they “qualify” for Gilead’s patented drugs. Plaintiffs have not defined with precision of what adverse action they complain. While the individual plaintiffs’ insurance carriers denied coverage for Gilead’s drugs, and Gilead denied Jane Doe the benefits of its Patient Assistance Program, the class action portion of the' Amended Complaint seeks to represent a class of persons who have either purchased or paid for Gilead’s drugs at an exorbitant price, or been unable to purchase or obtain such drugs.
Even if the plaintiffs had decided on a particular adverse action on which to hang their hat, they fail to allege how these adverse actions occurred under circumstances giving rise to an inference of discrimination. Plaintiffs have not shown Gilead has any prejudice, spite, or ill will toward racial minorities, nor have they shown that Gilead was deliberately indifferent to any substantial likelihood that its actions would violate a federally protected right. Gilead setting , high prices for its drugs — despite knowing that setting high prices would make it difficult for consumers without means or insurance coverage to acquire those drugs — is not the type of failure to act that Title VI reaches. Hepatitis C may indeed infect different seg
Plaintiffs’ Amended Complaint does not state a claim under the Affordable Care Act. Plaintiffs have not pled sufficient factual matter, accepted as true, to sustain a facially plausible claim that Gilead discriminates on either the basis of disability or race. Plaintiffs make no colorable allegations that Gilead is intentionally pricing out members of any protected class on the basis of their protected status.
We will therefore, dismiss .Count II of the Amended Complaint.
B. State Law Claims
Plaintiffs bring Counts IV and V under California Business & Professions Code § 17200, but their Amended Complaint does not state under what law they allege unjust enrichment (Count I) or a breach of the duty of good faith and fair dealing (Count II). Gilead argues that plaintiffs’ state law claims fail because they are preempted by federal patent law and without merit. MTD at 12; Def. Reply at 5, 7.
1. Preemption
Gilead argues that plaintiffs’ state law claims are preempted by federal patent law. MTD at 12. Specifically, Gilead argues that plaintiffs are attempting tо use state law to regulate or reduce the price of Gilead’s patent-protected drugs Sovaldi and Harvoni. Id. at 12; Def. Reply at 5. Plaintiffs respond that while Gilead can use patent law to exclude others from making an infringing product, it “cannot exploit its patent rights by charging exorbitant prices.” PI. Resp. at 38..
Federal Circuit' law governs whether federal patent protections preempt a state law claim. Ultra Precision Mfg., Ltd. v. Ford Motor Co.,
For example, in Biotechnology Indus. Org. v. District of Columbia,
Gilead argues that ■ “[g]iven that it is beyond the authority of a legislature to determine that a pharmaceutical price is ‘excessive,’ it is a fortiori beyond the authority' of a court aрplying a vague state law of general application to achieve the same result.” MTD at 13. Plaintiffs re
To the extent that plaintiffs seek to use state law to challenge Gilead’s exercise of its exclusive patent rights
2. Unjust Enrichment
Plaintiffs’ Amended Complaint does not state under what law they bring their claim in Count I for unjust enrichment. On this basis alone their claim fails, as unjust enrichment “is not a catch-all claim existing within the narrow scope of federal common law.” In re Wellbutrin XL Antitrust Litig.,
Plaintiffs cannot amend their Amended Complaint through their pleadings in response to Gilead’s motion to dismiss. See Frederico v. Home Depot,
California courts appear to be split on whether unjust enrichment is an independent claim or merely an equitable remedy. Baggett v. Hewlett-Packard Co.,
To the extent that California courts do recognize unjust enrichment as an independent cause of action, its elements are (1) receipt of a benefit, and (2) unjust retention of the benefit at the expense of another. Baggett,
Plaintiffs have failed to state a claim for unjust enrichment under California law. California law contemplates the use of this body of law to correct an unjust transfer of a benefit from one party to аnother when there has been a mistake or other circumstance rendering the retention of the benefit unjust. See, e.g., First Nationwide Sav. v. Perry,
Plaintiffs also fail to state a claim for unjust enrichment under either Pennsylvania or Arizona law. Under Pennsylvania law, unjust enrichment is an equitable doctrine providing a remedy when (1) one party confers a benefit on the recipient, (2) the recipient appreciates that benefit, and (3) the recipient accepts and retains the benefit under such circumstances that it would be inequitable or unjust for the recipient to retain the benefit without payment. Allegheny Gen. Hosp. v. Philip Morris, Inc.,
Jane Doe — a Pennsylvania resident — has conferred no benefit on Gilead, as she' has not purchased the drugs from it. Amend. Compl. at ¶21. SEPTA" has not alleged that it has conferred any benefit on Gilead • beyond paying for Sovaldi and Harvoni pursuant to some written agreement or express contract to do so. Nor are there any allegations about the uncertainty of such a contract. See id. at ¶¶ 143-44 (alleging that Gilead hás not carried out its contracts with third party payers in good faith). Protestations that Gilead’s prices are in bad faith — or solely to inflate its bottom line and therefore unfair — do not suffice to state a claim for unjust enrichment under Pennsylvania law.
Under Arizona law, unjust enrichment “occurs when one party has and retains money or benefits that in justice and equity belong to another.” Trustmark Ins. Co. v. Bank One, Ariz., N.A.,
We will therefore dismiss Count I of the Amended Complaint for unjust enrichment.
3. Breach Of The Implied Duty Of Good Faith And Fair Dealing
Plaintiffs allege in Count III that Gilead has breached the duty of good faith and fair déaling implied in every contract. Amend. Compl. at ¶ 142. Plaintiffs allege that Gileád has not carried out its contracts in good faith because it “abused its discrеtion it may have possessed related to those agreements by charging grossly excessive prices for Sovaldi and Harvoni,” demanded excessive prices, and has leveraged “its market power and purported patent rights to successfully coerce” wholesalers into extracting “excessive purchase prices from third-party payers and patients alike.” Id. at ¶¶ 143-44. Plaintiffs fail to state under what state law they bring this claim, and on that basis alone Count III fails. In re Wellbutrin XL Antitrust Litíg.,
Still, Gilead treated this claim as though plaintiffs brought it under California law. MTD at 20. Plaintiffs suggest that this claim is governed by California, Pennsylvania, and Arizona law.. PI. Resp. at 48 n. 38. All three states imply a duty of good faith and fair dealing in. every contract. Rawlings v. Apodaca,
Both California and Arizona law allow a plaintiff to recover for a breach of the duty of good faith and fair dealing even though there has. been no breach of a specific contractual clause. Marsu, B.V. v. Walt Disney Co.,
Plaintiffs’ claim for a breach of the duty of good faith and fair dealing fails whether Or not plaintiffs are required to show a separate breach of contract. Where there is a freestanding claim for the breach of these duties — and therefore the defendant need not have breached a contractual provision to' be held liable for failing to perform the duties undertaken in the contract in good faith — it applies to situations when one of the parties to the contract has discretion as to how it performs its contractual obligations. It does not apply to situations where a party has merely elected to contract with other parties on different terms. Plaintiffs have not alleged that Gilead has discretion within any given contract with the plaintiffs or for which the plaintiffs are intended third party beneficiaries. Rather, they allege that Gilead has discretion with respect to the prices it sets among the different contractual relationships it enters into.. See Amend. Compl. at ¶¶ 59-61 (claiming that Gilead’s exclusivity contracts “selectively lower[]” the prices for Sovаldi and Harvoni); id. at ¶ 41 (alleging pricing disparity between the international market and domestic market, as well as among federal agencies in the United States); PL Resp. at 50 (“Plaintiffs are not seeking to alter any. of the language in the contracts between .Gilead and its distributors. Rather, they are seeking to have Gilead carry out the terms of these contracts reasonably and in good faith. Because Gilead claims to have the sole discretion to set whatever price it wants [for its drugs] ... the covenant of good faith and fair dealing requires that it exercise this discretion in good faith.”).
Plaintiffs plead no facts to suggest or raise the inference that Gilead , has used pricing discretion within its contracts to provide Sovaldi and Harvoni, or that SEPTA or another member of the putative
We will therefore dismiss Count III of the Amended Complaint.
4. California Business & Professions Code § 17200
In Counts IV and V, plaintiffs allege that Gilead’s business practices constitute unfair competition and are unlawful on the basis of the federal and state laws described in Counts I, II, and III. Amend. Compl. at ¶¶ 149-50. Plaintiffs further allege that Gilead’s conduct constitutes unfair business acts and practices because it “does not benefit consumers or competition.” Id. at ¶¶ 156-57.
Section 17200 defines unfair competition in part as “any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof.Code § 17200. Section 17200 “borrows rules .set out in other laws and makes violations of those rules independently actionable.” Graham v. Bank of America, N.A.,
The standard for determining what business acts or practices are “unfair” under Section 17200 remains -unsettled. Id. at 612,
5. Motion For Leave To File A Sur-Reply
Plaintiffs filed a motion for leave to file a sur-reply, which Gilead opposed. We will grant plaintiffs’ motion.
6. Motion To Intervene
Ronald A. Williams moved pro se under Fed.R.Civ.P. 24(a), or in the alternative, Fed.R.Civ.P. 24(b), to intervene in this case. See Motion to Intervene at 1. As we have dismissed the entire Amended Complaint, we will deny Williams’s pro se motion to intervene as moot.
V. Conclusion
Plaintiffs style their litigation as “a pointed challenge ... to determine whether the law has any role in the heated public debate over a significant public policy issue” involving the affordability of Gilead’s patented Hepatitis C treatments. PI. Resp. at 1. Access to needed pharmaceuticals is uneven, and there is no shortage оf discontent with this status quo. But nothing in the Amended Complaint permits redress of plaintiffs’ particular grievances in federal court. Our only task here is to determine whether plaintiffs’ Amended Complaint contains sufficient factual matter, accepted as true, to state a facially plausible claim for relief under federal or state law. It does not. We will therefore grant Gilead’s motion to dismiss.
An appropriate Order follows.
ORDER
AND NOW, this 4th day of May, 2015, upon consideration of plaintiffs’ amended complaint (docket entry #9), defendant Gilead Sciences, Inc.’s motion to dismiss for failure to state a claim (docket entry # 16), plaintiffs’ response in opposition thereto, defendant’s reply, plaintiffs’ motion for leave to file a sur-reply (docket entry # 20), defendant’s opposition thereto, and Ronald A. Williams’s pro se motion to intervene (docket entry #22), and for the reasons set forth in our Memorandum issued this day on this case, it is hereby ORDERED that:
1. Plaintiffs’ motion to file a sur-reply (docket entry # 20) is GRANTED;
2. Defendant’s motion to dismiss (docket entry # 16) is GRANTED;
3. Plаintiffs’ amended complaint (docket entry # 9) is DISMISSED;
4. Ronald A. Williams’s pro se motion to intervene (docket entry #22) is DENIED AS MOOT; and
5. The Clerk of Court shall CLOSE this case statistically.
Notes
. Plaintiffs state that we also have jurisdiction over their putative, class action under CAFA pursuant to -28 U.S.C. § 1332. Amend. Compl. at ¶ 18.
. In fact, we were only able to identify one case substantively engaging with Section 1557. See Rumble v. Fairview Health Servs.,
. The district court in Rumble found that Congress “likely intended to create a new right and remedy in a new context without altering existing laws” when it enacted Section 1557 as part of the Affordable Care Act .'Rümble,
We therefore find that while Section Í557 does create "a new private right under the Affordable Care Act, the rights of action and corresponding remedies, including all of their limitations, are to be drawn from the four federal civil rights statutes listed in 42 U.S.C. § 18116(a) and applied depending upon the nature of the discrimination alleged by a putative .Section 1557 plaintiff..
. Notwithstanding the incorporation of Title VI into the Rehabilitation Act, the two statutes are not co-extensive. The Supreme Court has “assume[d] without deciding that [Section 504 of the Rehabilitation Act] reaches at least some conduct that has an unjustifiable disparate impact upon the handicapped.” Alexander v. Choate,
. Gilead has not contested that it is a covered еntity under 42 U.S.C. § 18116.
. Plaintiffs also believe that Gilead’s patents may be invalid on the basis of certáin pending lawsuits. Amend. Compl. at ¶ 99. Patents are presumed valid. 35 U.S.Ci § 282(a). Pending suits do not change'that presumption.
. Williston on Contracts explains:
Some courts have, held that it is not necessary for the defendant to have breached a specific provision of a. contract in order to establish a breach of the implied covenant of good faith and fair dealing ... While some courts allow a plaintiff to recover for breach of the duty of good faith and fair dealing even though there has been no breach of a specific contractual clause, provision ’ or duty, perhaps the majority of courts declined to find a breach of the implied covenant of good faith and fair dealing absent breach of an express term of the contract. Under this view, there can be no independent cause of action brought for breach of the covenant of good faith and fаir dealing, rather, the claim must be tied to an alleged breach of a specific contract term, often one that allows for discretion on the part of the party alleged to have violated the duty.
23 Williston on Contracts § 63:22 (4th ed.2014).
. See, e.g., Aleksick v. 7-Eleven, Inc.,