United States District Court, N.D. Illinois, Eastern Division
IN RE OPANA ER ANTRITRUST LITIGATION MDL No. 2580
MEMORANDUM OPINION AND ORDER
D. Leinenweber Judge
their Second Consolidated Amended Class Action Complaint,
End-Payor Purchaser Plaintiffs (“EPPs”) bring
claims under the antitrust, consumer protection, and unjust
enrichment laws of numerous states against Endo Health
Solutions Inc., Endo Pharmaceuticals Inc., Penwest
Pharmaceuticals Co. (collectively, “Endo”), and
Impax Laboratories, Inc. (“Impax”) (collectively,
the “Defendants”). EPPs contend that Defendants
delayed the entry of generic versions of Opana ER to the
Oxymorphone ER Market by entering into an illegal reverse
payment agreement to settle ongoing patent infringement
litigation between Endo and Impax.
before the Court is Defendants’ Motion to Dismiss
EPPs’ Second Consolidated Amended Complaint [ECF No.
188] pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons
stated herein, the Motion is granted in part and denied in
sake of brevity, the Court incorporates by reference its
discussion of the underlying statutory framework and factual
allegations from its February 10, 2016 Memorandum Opinion and
Order [ECF No. 151].
February 10, 2016 Memorandum Opinion and Order, the Court
dismissed EPPs’ state law consumer protection and
unjust enrichment claims because EPPs failed to plead
sufficiently such claims under the specific laws of each
state. Because the Court dismissed the claims on that basis,
it did not reach the other substantive arguments Defendants
had made in favor of dismissal. The Court granted EPPs leave
to replead all of their state law consumer protection and
unjust enrichment claims in a non-conclusory fashion, which
they did. Defendants now seek dismissal of EPPs’ unjust
enrichment claims under the laws of California, Florida,
Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan,
Missouri, New Hampshire, North Carolina, North Dakota,
Pennsylvania, Rhode Island and Utah and EPPs’ consumer
protection claim under Missouri law.
first argue that EPPs’ unjust enrichment claims under
the laws of Florida, Illinois, Massachusetts, Missouri,
Pennsylvania and Rhode Island should be dismissed because
these states have not adopted Illinois Brick
repealer statutes. In Illinois Brick Co. v.
Illinois, the United States Supreme Court held that only
the overcharged direct purchaser, and no one else in the
chain of distribution, can recover damages under federal
antitrust law. Illinois Brick Co. v. Illinois, 431
U.S. 720, 746 (1977). “The policy of Illinois
Brick prohibits indirect purchasers from suing the
manufacturer to recover any ill-gotten gains the manufacturer
has obtained by violating antitrust laws.” In re
Flonase Antitrust Litig., 692 F.Supp.2d 524, 542 (E.D.
Pa. 2010). Certain states have passed so-called
“Illinois Brick repealer statutes” in
response to the Supreme Court’s decision in
California v. ARC America Corp., in which it held
that indirect purchasers may recover damages under state
antitrust laws despite Illinois Brick, if the state
laws otherwise allow for such recovery. California v. ARC
America Corp., 490 U.S. 93, 101 (1989).
argue that because Florida, Illinois, Massachusetts,
Missouri, Pennsylvania and Rhode Island continue to follow
Illinois Brick, EPPs’ unjust enrichment claims
under the laws of these states are simply an end-run around
the policy choice of Illinois Brick. See, In re Lidoderm
Antitrust Litig., 103 F.Supp.3d 1155, 1175 (N.D. Cal.
2015). EPPs respond that, under Rule 8 of the Federal Rules,
they are permitted to plead their unjust enrichment claims in
the alternative, regardless of whether state antitrust law
follows Illinois Brick. The cases EPPs cite in
support of this proposition are outliers. See, e.g.,
United Food & Commercial Workers Local 1776 &
Participating Emp’rs Health & Welfare Fund v.
Teikoku Pharma USA, Inc., 74 F.Supp.3d 1052, 1089 (N.D.
Cal. 2014). Although the Federal Rules generally provide that
“[r]elief in the alternative . . . may be demanded,
” Fed.R.Civ.P. 8(a), they do not authorize end-runs
around state laws. EPPs cannot avoid Illinois Brick
simply by characterizing their unjust enrichment claims as
alternative forms of relief. EPPs’ unjust enrichment
claims are seeking damages attributable to Defendants’
alleged antitrust conduct. This requested alternative relief
is impermissible (regardless of its form) in states that
prohibit indirect purchasers from recovering damages for
next contend that the consumer protection laws of Florida,
Massachusetts, Missouri and Pennsylvania either expressly
permit, or do not specifically disallow, indirect purchaser
actions, as has been recognized by courts in each of these
states. The Florida Unfair and Deceptive Trade Practices Act
(“FUDTPA”) allows indirect purchases to recover
damages for “unfair methods of competition” -
including violations of the antitrust laws. Mack v.
Bristol-Myers Squibb Co., 673 So.2d 100, 104 (Fla. Dist.
Ct. App. 1996). The Massachusetts Consumer Protection Act
(“MCPA”) similarly permits indirect purchaser
claims based on antitrust violations. Ciardi v. F.
Hoffman-La Roche Ltd., 762 N.E.2d 303, 308 (Mass. 2002).
Likewise under the Missouri Merchandising Practices Act
(“MPA”), Gibbons v. J. Nuckolls, Inc.,
216 S.W.3d 667, 670 (Mo. 2007), and the Pennsylvania Unfair
Trade Practices and Consumer Protection Law
(“PUTPCL”), Gardner v. State Farm Fire &
Cas. Co., 544 F.3d 553, 564 (3d Cir. 2008). EPPs have
states claims under each of these statutes. Because indirect
purchasers are allowed to recover damages for antitrust
conduct under the statutes of these states, there is no
reason to bar EPPs’ unjust enrichment claims in
Florida, Massachusetts, Missouri and Pennsylvania.
attempt to save their unjust enrichment claims under Illinois
and Rhode Island laws, EPPs argue that these claims are
permitted as independent causes of action not reliant on the
states’ antitrust laws. But the legislative intent
behind permitting an unjust enrichment claim to stand
independently of any other claim does not reflect a policy
choice to allow indirect purchaser recovery for antitrust
conduct in the same way as the consumer protection claims
just discussed. In fact, the legislature of Illinois has
adopted a clear policy prohibiting indirect purchaser
antitrust claims. See, 740 ILCS 10/7. And although
Rhode Island recently (on July 15, 2013) enacted an
Illinois Brick repealer statute, R.I. Gen. Laws
§ 6-37-7(d), that statute does not apply retroactively
to conduct that occurred prior to its enactment. Allowing
EPPs to maintain their Illinois and Rhode Island unjust
enrichment claims would enable them to sidestep impermissibly
those states’ prohibitions on antitrust recovery for
indirect purchasers. Therefore, EPPs’ unjust enrichment
claims under the laws of Illinois and Rhode Island are
dismissed with prejudice.