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Thomas A. Simonian v. Allergan

April 28, 2011

THOMAS A. SIMONIAN, RELATOR,
v.
ALLERGAN, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Relator, Thomas A. Simonian, has brought a qui tam action against Defendant, Allergan, Inc., alleging that Allergan has violated 35 U.S.C. § 292 by marking certain of its prescription pharmaceutical products with two expired patents, namely U.S. Patent Numbers 4,839,342 ("the '342 patent") and 4,649,047 ("the '047 patent"). (R. 1.) On March 4, 2011, Allergan filed a motion for judgment on the pleadings, arguing that Section 292(b) of the false-marking statute is unconstitutional in light of the "Take Care" clause of Article II of the U.S. Constitution. (R. 57.) Allergan argues that, because the Executive Branch lacks sufficient control over qui tam actions that relators bring under Section 292(b), that provision of the false-marking statute is unconstitutional. (R. 58.) For reasons explained below, the Court disagrees and denies Defendant's motion for judgment on the pleadings.

BACKGROUND

On April 19, 2010, Relator filed a complaint alleging that Allergan had falsely marked its RESTASIS® Ophthalmic Emulsion product with the expired '342 and '047 patents. (R. 1.) Simonian alleged that Allergan "is a sophisticated company, that has previously litigated or overseen litigation of patent infringement cases and which regularly prosecutes or oversees patent prosecution." (Id. at 11.) He alleged further that Defendant has advertised its RESTASIS® product on its website, in the New York Times, and in Prevention Magazine. (Id. at 5-11.)

Allergan subsequently filed a motion to dismiss, which this Court denied on November 30, 2010. (R. 45.) In so ruling, the Court found that the complaint met the pleading requirements of Federal Rule of Civil Procedure 9(b) and held that a company can violate the false-marking statute by marking an article with an expired patent, even if it also marked that article with valid patents. (Id.)

On March 4, 2011, Allergan filed the present motion for judgment on the pleadings. (R. 57.) It argues that the qui tam provision of the false-marking statute contravenes the "Take Care" Clause of Article II of the U.S. Constitution because the statute neither requires nor allows governmental oversight. (Id.; R. 58.) In support of its motion, Allergan appeals to a recent decision in the Northern District of Ohio, which found the qui tam provision of the false-marking statute to be unconstitutional. (R. 58 at 5, 10-12.) Also on March 4, 2011, Allergan filed a notice of constitutional question pursuant to Federal Rule of Civil Procedure 5.1, stating that it would serve that notice on the Attorney General of the United States concurrently with the filing.

(R. 60.) For reasons explained below, the Court denies Defendant's motion for judgment on the pleadings.

LEGAL STANDARD

"A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) 'is designed to provide a means of disposing of cases when the material facts are not in dispute and a judgment on the merits can be achieved by focusing on the content of the pleadings and any facts of which the court may take judicial notice.'" Archer Daniels Midland Co. v. Burlington Ins. Co. Grp., Inc., No. 10-CV-1533, 2011 WL 1196894, at *2 (N.D. Ill. Mar. 29, 2011) (quoting Cin. Ins. Co. v. Contemporary Distrib., Inc., No. 09-CV-2250, 2010 WL 338943, at *2 (N.D. Ill. Jan. 26, 2010)). The same legal standard that applies to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) applies to motions under Rule 12(c). See Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). To survive a Rule 12(c) motion, then, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the speculative level, assuming that all well-pleaded allegations in the complaint are true. See Bell Atl. Corp. v Twombly, 550 U.S. 544, 555 (2007); see also Wozniak v. Argonne Nat'l Lab., No. 09-CV-7702, 2010 WL 3958426, at *3 (N.D. Ill. Oct. 1, 2010). The Court accepts as true all-pleaded facts alleged by the plaintiff, as well as all reasonable inferences that arise from the same. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).

ANALYSIS

Section 292(b) of the False-Marking Statute Is Constitutional

The U.S. Constitution provides that the President "shall take Care that the Laws be faithfully executed." U.S. CONST. Art. II, § 3. Allergan observes that, by virtue of the Take Care Clause, Congress can transfer the Executive Branch's law-enforcement authority only if the Executive retains "sufficient control . . . to ensure that the President is able to perform his constitutionally assigned duties[.]" (R. 58 at 7-8 (quoting Morrison v. Olson, 487 U.S. 654, 696 (1988).) Defendant submits that the qui tam provision of the false-marking statute, Section 292(b), fails this requirement and is thus unconstitutional under Article II, Section 3 of the Constitution.*fn1 (Id. at 5.) Section 292(b) of that statute provides that "[a]ny person may sue for the penalty, in which event one-half shall go the person suing and the other to the use of the United States." 35 U.S.C. § 292(b).

In arguing that Section 292(b) is unconstitutional, Allergan places central reliance on Morrison v. Olson, 487 U.S. 654 (1988). (R. 58 at 8-9.) There, the Supreme Court found that the independent-counsel provisions of the Ethics in Government Act of 1978 did not impermissibly undermine the powers of the Executive Branch because it gave the Attorney General (and hence the President) "sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties." 487 U.S. 654, 693-96 (1988). It reached this conclusion despite acknowledging that, under the Act, "[t]he Attorney General is not allowed to appoint the individual of his choice; he does not determine the counsel's jurisdiction; and his power to remove a counsel is limited." Id. Nevertheless, the Supreme Court held that the Attorney General retained sufficient control to render the Act constitutional, observing: the Attorney General retains the power to remove the counsel for 'good cause,' a power that . . . provides the Executive with substantial ability to ensure that the laws are 'faithfully executed' by an independent counsel. No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General's decision not to request appointment if he finds 'no reasonable grounds to believe that further investigation is warranted' is committed to his unreviewable discretion. The Act thus gives the ...


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