SHEET METAL WORKERS LOCAL 441 HEALTH & WELFARE PLAN, et al, Plaintiffs v. GLAXOSMITHKLINE, PLC, et al, Defendants, 737 F. Supp. 2d 380

OPINION STENGEL, District Judge. In an order dated November 3, 2009, this Court granted in part and denied in part a motion filed by GlaxoSmithKline, et al (“GSK”) for judgment on the pleadings, seeking dismissal of the end-payor plaintiffs’ amended class action complaint. Plaintiffs, indirect purchasers of Wellbutrin SR, were granted leave to amend their complaint a second time to assert causes of action in those states where they purchased or into which they sent reimbursements for Wellbutrin SR.

GSK has filed a motion to dismiss plaintiffs’ second amended complaint, which asserts causes of action under eighteen state antitrust and/or consumer protection statutes and under the common law of unjust enrichment in twenty-seven states. For the reasons set forth below, I will grant the motion in part and deny it in part. TABLE OF CONTENTS I. INTRODUCTION..........................................................388 II. STANDARD OF REVIEW .................................................389 III. PRELIMINARY CHOICE OF LAW QUESTION.............................390 IV.

DISCUSSION OF STATE LAW CLAIMS....................................393 A. Plaintiffs’ Monopolization Claims.........................................393 1. Arizona...........................................................393 2. California.........................................................393 3. Florida...........................................................394 4. Massachusetts.....................................................395 5. Michigan.........................................................395 6. Minnesota........................................................396 7.

Nevada...........................................................397 8. New York ........................................................398 9. North Carolina....................................................400 10. West Virginia.....................................................400 11. Wisconsin.........................................................401 B. Plaintiffs’ Unfair and Deceptive Trade Practice Claims......................402 1. Arizona...........................................................403 2. Arkansas.........................................................404 3.

California.........................................................405 4. Colorado..........................................................406 5. Florida...........................................................408 6. Idaho ............................................................409 7. Massachusetts.....................................................411 8. Michigan.........................................................412 9. Minnesota........................................................413 10. Missouri..........................................................414 11.

Nevada...........................................................417 12. New York ........................................................417 13. North Carolina....................................................418 14. Oklahoma.........................................................420 15. Pennsylvania......................................................421 16. Rhode Island......................................................422 C. Plaintiffs’ Unjust Enrichment Claims .....................................423 a.

Can the Plaintiffs Bring Unjust Enrichment Claims in States Where Indirect Purchasers Have Been Barred From Pursuing State Antitrust and Consumer Protection Claims?................424 b. Can the Plaintiffs Bring Unjust Enrichment Claims Where Applicable State Antitrust And Consumer Protection Statutes Do Not Provide for an Equitable Remedy?......................426 c. Do Plaintiffs Need to Show Conferral of a Direct Benefit In Order to Maintain an Unjust Enrichment Claim?.................428 1. Alabama..........................................................429 2.

Arkansas.........................................................429 3. Arizona...........................................................430 4. California.........................................................430 5. Colorado..........................................................431 6. Florida...........................................................432 7. Georgia...........................................................432 8. Idaho ............................................................433 9. Iowa.............................................................434 10.

Illinois ...........................................................435 11. Indiana...........................................................435 12. Kentucky.........................................................436 13. Louisiana.........................................................436 14. Massachusetts.....................................................437 15. Michigan .........................................................438 16. Minnesota........................................................438 17. Missouri..........................................................439 18.

Nevada...........................................................440 19. New York............:...........................................441 20. North Carolina....................................................441 21. Oklahoma.........................................................442 22. Pennsylvania......................................................443 23. Rhode Island......................................................445 24. Tennessee........................................................445 25. Texas........................................... 446 26.

West Virginia.....................................................447 27. Wisconsin.........................................................447 V. CONCLUSION............................................................448 I. INTRODUCTION On December 2, 2009, plaintiffs IBEW— NECA Local 505 Health & Welfare Plan, Sheet Metal Workers Local 441 Health & Welfare Plan, MC — UA Local 119 Health and Welfare Plan, A.F. of L. — A.G.C.

Building Trades Welfare Plan, United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund, and Sidney Hillman Health Center of Rochester, Inc. (“the plans”) filed their second amended class action complaint (“SAC”) against GlaxoSmithKline PLC, et al (“GSK”). (Document #245). These end payor plaintiffs claim GSK filed sham patent litigation against companies seeking to manufacture and market generic versions of Wellbutrin SR in order to maintain their monopoly over sales of the drug.

Before the Court is GSK’s motion to dismiss the second amended complaint, in which the end-payor plaintiffs assert antitrust, consumer protection, and unjust enrichment claims in states in which they, or the members they represent, purchased Wellbutrin SR. In Illinois Brick Co., et al. v. State of Illinois, et al., 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), the Supreme Court faced the question whether indirect purchasers can sue for overcharges resulting from Sherman Act violations by asserting that those overcharges were passed on through the chain of distribution of a product.

It ruled in the negative, finding that its decision in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), prohibiting antitrust plaintiffs from asserting a pass-on defense in actions brought by direct purchasers applied as well to the offensive use of a pass-on theory. See id. at 735-739, 97 S.Ct. 2061.

It reasoned that “permitting the use of pass-on theories ... would essentially transform treble-damages actions into massive efforts to apportion the recovery among all potential plaintiffs that could have absorbed part of the overcharge from direct purchasers to middlemen to ultimate consumers.” Id. at 737, 97 S.Ct. 2061.

However, when later faced with the question whether “[the rule articulated in Illinois Brick ] limiting recoveries under the Sherman Act also prevents indirect purchasers from recovering damages flowing from violations of state law, despite express state statutory provisions giving such purchasers a damages cause of action,” the Court found that it did not. California v. ARC America Corp., 490 U.S. 93, 100, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989). It reasoned that the decision in Illinois Brick to protect antitrust defendants from multiple liability was not an express federal policy but rather, was an

interpretation of

section 4 of the Clayton Act. Id. at 105, 109 S.Ct. 1661 (“When viewed properly, Illinois Brick was a decision construing the federal antitrust laws, not a decision defining the interrelationship between the federal and state antitrust laws.”). The indirect purchasers in this case are therefore barred from asserting federal antitrust claims and assert only statutory state law antitrust and consumer protection and state common law unjust enrichment claims. II. STANDARD OF REVIEW A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all plausible inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir.1984).

It remains true that the Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Rather, the Rules require “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

In recent rulings, however, the Supreme Court has rejected language in Conley stating that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561, 127 S.Ct. 1955.

Rather, a “complaint must allege facts suggestive of [the proscribed] conduct,” Twombly, 550 U.S. at 564, 127 S.Ct. 1955, and it must contain enough factual matters to suggest the required elements of the claim or to “raise a reasonable expectation that discovery will reveal evidence of’ those elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

In assessing the merits of a motion to dismiss, courts must be careful to recognize that, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “[0]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950 (emphasis added).

In recognition of these principles, courts must first identify those allegations in a complaint that are mere conclusions and are therefore not entitled to the assumption of truth, and next, consider whether the complaint’s factual allegations, which are entitled to a presumption of truth, plausibly suggest an entitlement to relief. Iqbal, 129 S.Ct. at 1950 (emphasis added). III.

PRELIMINARY CHOICE OF LAW QUESTION Before reaching the substance of plaintiffs’ state law claims, I will address GSK’s argument that I should apply the law of the plaintiffs’ home states, and not the laws of the states in which they purchased Wellbutrin SR, in resolving this motion. When I granted in part and denied in part GSK’s motion for judgment on the pleadings, I ruled, in conformity with decisions of Judges McLaughlin and Brody, that the plans may assert causes of action in states where their members purchased Wellbutrin SR.

I granted the end-payor plaintiffs leave to amend their complaint to assert causes of action in those states where their members purchased Wellbutrin SR. It is into these states that the plans sent their members reimbursements for the drug. GSK now argues that plaintiffs’ claims should be governed by the laws of their home states — the states where they are located.

It argues that, in deciding GSK’s earlier motion for judgment on the pleadings, I did not fully address the choice of law issue presented here, which is whether the plans have a cause of action in states where they are not located, but in which they purchased Wellbutrin SR or into which they sent reimbursements to their members for their members’ purchases of Wellbutrin SR.

According to GSK, Pennsylvania choice of law rules mandate the application of the law of the plans’ home states because (1) the reimbursement states (the states where the plans are not located, but into which they sent reimbursements for their members’ purchases of Wellbutrin SR) are interested in protecting their own consumers, and not benefit plans located in other states; (2) the home states (those states in which the plans are located, or have their principal place of business) would have a greater interest in protecting the plans located there, but do not permit recovery in this case; and (3) the plans do not have substantial physical contacts with the reimbursement states.

See Def.’s Mot. To Dismiss, 6-11. GSK insists that, because the plans themselves are the named plaintiffs, and their members are but putative class members, the plans cannot base their case on their members’ purchases of Wellbutrin SR. Def.’s Reply to Pl.’s Response, 1-2. The issue of consumer purchases of Wellbutrin SR, it asserts, should only arise at the class certification stage.

The plaintiffs respond that the states where purchases of Wellbutrin SR were made and into which reimbursements were sent have a strong interest in protecting consumers who both reside in and buy products within their borders, and point to numerous court decisions both within this Circuit and outside of it allowing indirect purchasers to assert claims in states where drug reimbursements to members were made. See PL’s Resp. To Def.’s Mot. To Dismiss, 8-10.

In deciding GSK’s motion for judgment on the pleadings, I ruled that the endpayor plaintiffs had standing to raise claims in states where their members purchased Wellbutrin SR. Judge McLaughlin issued a similar ruling in In re Wellbutrin XL Antitrust Litig., 260 F.R.D. at 156-57. I quoted a portion of Judge McLaughlin’s opinion: The named plaintiffs have identified an injury in fact that is fairly traceable to conduct taking place in states where their members purchased Wellbutrin XL.

Those injuries would be redressed by a favorable determination under the laws of the states where their members purchased Wellbutrin XL. The elements of a standing analysis of the plaintiffs’ claims have clear connection to the states where the plaintiffs themselves are located and the states where their members made purchases of Wellbutrin XL. Therefore, plaintiffs[] have standing to assert claims in those states. Wellbutrin XL Antitrust Litig., 260 F.R.D. at 156-57. GSK claims I did not make a clear ruling on the choice of law issue in deciding the motion for judgment on the pleadings.

I observed in a footnote that “[u]nder Pennsylvania law, the law of the jurisdiction with the most significant interest in the litigation generally applies.” Sheet Metal Workers Local 441 Health & Welfare Plan, et al. v. GlaxoSmithKline, PLC, 263 F.R.D. 205, 211, n. 12 (E.D.Pa.2009).

After setting forth the relevant factors under Pennsylvania choice of law principles, I concluded that, keeping in mind Pennsylvania’s functional approach to the choice of law issue, “[gjiven the fact that the alleged injury occurred in each of the fifty states, and given each state’s strong interest in protecting its own consumers (but a far weaker interest in protecting consumers from other states), it is clear (and in the context of this motion the parties do not dispute) that the law of a particular state will govern any overcharge injury arising in that state.” Id. (internal citations omitted).

GSK claims, in its reply to the plaintiffs’ response to its motion, that the plaintiff plans have conflated themselves with potential consumer class members. See Def.’s Reply to Pl.’s Resp., 11(A). Plaintiffs’ second amended complaint alleges that GSK forced consumers to continue paying monopoly prices for Wellbutrin SR and that, as a result of GSK’s actions, “consumers and third-party payors throughout the United States have been denied the benefits of free and unrestrained competition in the Wellbutrin SR market.” SAC, ¶¶ 7,8.

However, GSK ignores that, even though class certification is still pending, the named plaintiffs have alleged that they represent a limited class of consumers — those plan members who have purchased or paid for Wellbutrin in certain states.

See e.g., SAC ¶ 9 (“Plaintiff IBEW — NECA Local 515 Health & Welfare Plan ... represents participants who have family coverage and purchased or paid for Wellbutrin SR during the Class Period other than for resale and were injured[.]”); ¶ 10 (“Plaintiff Sheet Metal Workers Local 441 Health & Welfare Plan ... represents participants who have family coverage and who purchased or paid for Wellbutrin SR. During the Class Period, Sheet Metal Workers Plan and its members were indirect purchasers of Wellbutrin SR[.]”).

Therefore, the named plaintiffs already represent consumers — their members — who purchased Wellbutrin in states that are not the plans’ home states. In support of their argument that the plans’ claims on behalf of consumers-— members of the plans who purchased and used Wellbutrin SR — GSK cites Georgine v. Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir.1996) aff'd 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), in which the Third Circuit overturned certification of an asbestos settlement class in part because the parties had not demonstrated commonality and predominance.

In the context of the commonality discussion, the Third Circuit noted that it “must apply an individualized choice of law analysis to each plaintiffs claims.” Id. At the class certification stage, I will examine the issues of predominance and commonality and decide whether an end-payor class is too diverse to certify. But that issue is not now before me. I will not revisit the choice of law issue. Both Judge McLaughlin and Judge Brody have applied the law of the states into which health and welfare benefit plans sent reimbursements in deciding motions to dismiss end-payor state law claims.

See In re Wellbutrin XL, 260 F.R.D. at 158-67; In re Flonase, 692 F.Supp.2d at 534-546. In my order granting in part and denying in part GSK’s motion for judgment on the pleadings, I found that plaintiffs could assert causes of action in those states where reimbursements were sent because the economic impact the indirect purchasers felt in those states was substantial. Because the Plans, and their members, suffered injury in the states where they purchased Wellbutrin SR, each state has a significant interest in enforcing its antitrust laws in light of alleged violations by GSK.

Other courts have recognized the interest of plan members’ states in preventing antitrust and consumer protection violations. Pennsylvania choice of law analysis does not clearly require application of the Plans’ home state laws here, and in accordance with the approach taken by Judges Brody and McLaughlin, and because there is a likelihood of substantial economic impact on the plans and their members in the states where they sent reimbursements, I will consider the viability of each specific state law claim. IV.

DISCUSSION OF STATE LAW CLAIMS I may state or in some way imply throughout this memorandum that certain welfare benefit plans are bringing or asserting claims in specific states. The welfare plans have sued GSK together and assert their claims coextensively. However, each welfare plan may remain a plaintiff in this action only if that plan can state a claim in one of the states into which it sent reimbursements for Wellbutrin SR. A.

Plaintiffs’ Monopolization Claims Plaintiffs assert monopolization claims under relevant state statutes in Arizona, California, Florida, Massachusetts, Michigan, Minnesota, Nevada, New York, North Carolina, West Virginia, and Wisconsin. Their monopolization claim is simple: that GSK “knowingly and willfully engaged in a course of conduct designed to extend their monopoly power[,]” which included “improperly filing patent infringement actions against generic manufacturers seeking to obtain approval to sell generic versions of Wellbutrin SR.” SAC ¶ 181. 1.

Arizona Defendants concede that plaintiff UFCW’s claim under Arizona’s antitrust statute, Ariz. Revised Stat. §§ 44-1401, et seq., should stand. Mot. To Dismiss, 11. 2. California Plaintiff UFCW asserts a claim under California’s antitrust statute on behalf of itself and all consumers who purchased Wellbutrin SR in California. SAC ¶¶ 179, 183. In its antitrust count, plaintiffs assert violations of both the Cartwright Act, California’s antitrust act, codified at Cal. Bus. & Prof. Code §§ 16700, et seq., and California’s Unfair Competition Law, codified at Cal. Bus. & Prof. Code §§ 17200, et seq.

The Cartwright Act prohibits making or entering into “contracts, obligations or agreements of any kind or description ... to pool, combine or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such

article or commodity, that its price might in any manner be affected.” Cal. Bus. & Prof. Code § 16720(e)(4). The Cartwright Act expressly allows suits by indirect purchasers. See id. § 16750(a) (“Any person who is injured in his or her business or property by reason of anything forbidden or declared unlawful by the chapter, may sue therefor[J”) GSK challenges plaintiffs’ California claims on numerous grounds. First, it argues plaintiffs’ monopolization claims under the Cartwright Act should be dismissed because the Cartwright Act does not proscribe unilateral conduct of the kind alleged by plaintiffs. Appx.

B To Def.’s Reply, 27. The Ninth Circuit has recognized that the Cartwright Act does not proscribe monopolistic conduct by one person or entity. See Dimidowich v. Bell & Howell, 803 F.2d 1473, 1478 (9th Cir. 1986) (“Combinations to monopolize would appear to fall within the general prohibitions of the Cartwright Act ... but that statute does not address unilateral conduct.” (internal citations omitted) (emphasis in original)).

In response to this argument, plaintiffs argue that one case upon which GSK relies, In re Terazosin Hydrochloride Antitrust Litig., 160 F.Supp.2d 1365, 1378-79 (S.D.F1.2001), allowed similar claims to proceed and rejected the defendant’s unilateral claim defense. Appx. To Pl.’s Resp. 33. However, the Terazosin court only allowed the plaintiffs’ claim of single-handed monopolization to proceed when plaintiffs “recast their allegations ... as a claim for relief under California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210.” 160 F.Supp.2d at 1379.

Plaintiffs offer no other argument in support of their monopolization claim. Therefore, I will grant GSK’s motion to dismiss plaintiffs’ California monopolization claim. Plaintiffs do not allege the requisite conspiracy between two or more actors necessary to state a claim under the Cartwright Act. Because I will dismiss plaintiffs’ California monopolization claims on this ground, I will not discuss the other grounds for dismissal cited by GSK. 3. Florida In the

section of the SAC for monopolization claims, plaintiffs the IBEW Plan, the Sheet Metal Workers Plan, the AFL Plan, the UFCW, and Sidney Hillman Health Center assert, on their own behalf and on behalf of all members who purchased Wellbutrin SR in Florida, a claim against GSK for violation of Fla Stat. §§ 501.

Part II, et seq. SAC ¶ 184. However, in their response to GSK’s motion to dismiss the Florida antitrust claim, plaintiffs clarify that they do not state a claim under the Florida antitrust statute, which is codified at Fla Stat. §§ 542.15, et seq., and instead assert a claim only under the consumer protection law, which is codified at Fla Stat. § 501.201, et seq. Appx. To Pl.’s Resp., 1. Therefore, the motion to dismiss a Florida antitrust claim is moot and the SAC will be construed to assert causes of action for a violation of Florida’s Unfair Trade Practices Act, Fla.

Stat. §§ 501.201, et seq., SAC ¶207, and for unjust enrichment in the state of Florida, SAC ¶¶ 220, 221, 223-225, only. Therefore, I will deny GSK’s motion to dismiss plaintiffs’ Florida antitrust claim as moot. 4. Massachusetts Plaintiffs SAC asserts a claim for monopolization in violation of Mass. Gen Laws ch. 93A, et seq. SAC ¶ 185. This claim is asserted by the IBEW plan on its own behalf and on behalf of all plan members who purchased Wellbutrin SR in Massachusetts. SAC ¶ 175.

In their response to GSK’s motion to dismiss the Massachusetts antitrust claim, plaintiffs assert that they do not state a claim under the Massachusetts antitrust statute, and instead assert a claim only under the consumer protection law, which is also codified in

Chapter 93A. Appx. To Pl.’s Resp., 1. Therefore, the SAC will be construed to assert causes of action for a violation of the Massachusetts consumer protection law, Mass. Gen. L. Ch. 93A, SAC ¶209, and for unjust enrichment in the state of Massachusetts, SAC ¶ 220, only. GSK’s motion to dismiss plaintiffs’ monopolization claim under Massachusetts law will denied as moot. 5. Michigan Plaintiff UFCW asserts a cause of action for monopolization in violation of the Michigan Antitrust Reform Act (“MARA”), codified at Mich. Comp. Laws § 445.771, et seq. SAC ¶ 186.

Michigan’s antitrust statute provides that: “[t]he establishment, maintenance, or use of a monopoly, or any attempt to establish a monopoly, of trade or commerce in a relevant market by any person, for the purpose of excluding or limiting competition or controlling, fixing, or maintaining prices, is unlawful.” Mich. Comp. Laws § 445.773. “ ‘Relevant market’ means the geographical area of actual or potential competition in a line of trade or commerce, all or any part of which is within this state.” Id. at § 445.771(b).

GSK claims plaintiffs’ MARA claim must be dismissed because it requires “that the alleged anticompetitive conduct must have occurred, at least in part, in the state.” Defs.’ Motion to Dismiss, 14. More specifically, GSK argues that, because the MARA has been interpreted to regulate the same antitrust activity the Sherman Act regulates, but at the intrastate and not the interstate level, the plaintiffs must show that the alleged monopoly is substantially or primarily a local one. Appx. B To Mot. To Dismiss, 3. GSK cites Aurora Cable Comm. Inc. v.

Jones Intercable, Inc., 720 F.Supp. 600, 603 (W.D.Mich.1989) and Peoples Sav. Bank v. Stoddard, 359 Mich. 297, 102 N.W.2d 777, 796 (1960) in arguing that Michigan’s antitrust statute requires the plaintiffs to show that some of the anti-competitive conduct at issue occurred within Michigan. Id. However, the court in Peoples Savings Bank simply observed that the monopolistic activities in question in that case were predominantly local. 102 N.W.2d at 796. The court did not rule that the MARA only applies to activities that are predominantly local.

In Aurora, the Court stated that “MARA parallels the Sherman Antitrust Act as it applies to intrastate conduct.” 720 F.Supp. at 603. In support of this proposition, the Aurora court cited Mfr.’s Supply Co. v. Minnesota Min. and Mfg. Co., 688 F.Supp. 303, 306 (W.D.Mich.1988).

In Mfr.’s Supply, the court determined that the allegations of a vertical trade restraint in the plaintiffs’ complaint were insufficient to state a cause of action under the Sherman Act and the MARA because they were not a per se violation of the Sherman Act and the plaintiffs had also failed to show that defendants created an unreasonable restraint of trade. 688 F.Supp. at 307-308. In other words, the court concluded that activities not in violation of the Sherman Act were therefore not in violation of the MARA. Id.

This is the sense in which the Sherman Act and the MARA are “parallel.” GSK has presented no evidence that the Sherman Act and the MARA are in some way mutually exclusive, the former prohibiting interstate anticompetitive conduct and the latter regulating only anticompetitive conduct within Michigan. GSK has presented no authority mandating the

interpretation that MARA does not apply where monopolistic activity is both interstate and local, which is the thrust of the plaintiffs’ allegations here. Plaintiffs in fact do not allege that GSK’s monopolistic activities were restricted to any one state, but rather, claim that it “manufactured and sold substantial amounts of Wellbutrin SR in a continuous and uninterrupted flow of commerce across state and national lines.” SAC ¶ 163.

A plain reading of the MARA’s definition of “relevant market” as an area of competition “all or any part of which is within this state,” indicates only that a plaintiff bringing a cause of action need show some monopolistic activity within the state. Plaintiffs’ allegations that they were forced to pay a higher price for Wellbutrin SR in Michigan and that Michigan plan members therefore also paid a higher price are sufficient to show that activities related to the alleged monopoly took place within the state. Therefore, I will deny GSK’s motion to dismiss plaintiffs’ Michigan antitrust claim. 6.

Minnesota Plaintiff UFCW asserts a cause of action for GSK’s alleged violation of Minnesota’s antitrust statute, codified at Minn. Stat. §§ 325D.52, et seq. SAC ¶ 187. Under the Minnesota statute, “[t]he establishment, maintenance, or use of, or any attempt to establish, maintain, or use monopoly power over any part of trade or commerce by any person or persons for the purpose of affecting competition or controlling, fixing, or maintaining prices is unlawful.” Minn. Stat. § 325D.52. This prohibition applies to: (

a) any contract, combination, or conspiracy when any part thereof was created, formed, or entered into in this state; and (

b) any contract, combination, or conspiracy, wherever created, formed, or entered into; any establishment, maintenance, or use of monopoly power; and any attempt to establish, maintain, or use monopoly power; whenever any of the foregoing affects the trade or commerce of this state. Minn. Stat. § 325D.54. GSK claims Minnesota’s statute “extend[s] to claims only where there are allegations of substantial intrastate effects.” Def.’s Motion to Dismiss, 14-15. It cites City of St. Paul v. FMC Corp., No. 3-89-0466,1990 WL 265171 at *8 (D.Minn. Feb. 17, 1990), in support of its argument. In St.

Paul, however, the court ruled that the Minnesota statute applied only to purchasers in Minnesota in the context of plaintiffs’ motion to apply Minnesota law to an already-certified class of nationwide purchasers of a monopolized product. 1990 WL 265171 at *8. Here, the named plaintiffs who purchased and paid for Wellbutrin SR in Minnesota assert a cause of action under its antitrust statute.

They allege that GSK’s actions “forced consumers to continue paying monopoly prices for Wellbutrin SR prescription products” and that their members in Minnesota “have been denied the benefits of free and unrestrained competition in the Wellbutrin SR market.” SAC ¶¶ 7, 8. These allegations are sufficient to state a cause of action under subsection (

b) above, because forcing purchasers to pay more for Wellbutrin SR would fall under its broad scope, which does not on its face require any substantial in state effect. Therefore, I will deny GSK’s motion to dismiss plaintiffs’ Minnesota antitrust claims. 7. Nevada Plaintiff UFCW claims GSK violated Nevada’s antitrust statute, Nev. Rev. Stat. § 598A.060. SAC ¶ 188. GSK argues this Nevada antitrust claim must be dismissed because the statute requires that the allegedly anticompetitive conduct have taken place, in part, within Nevada. Mot. To Dismiss, 14.

The statute provides in relevant part that: Every activity enumerated in this subsection constitutes a contract, combination or conspiracy in restraint of trade, and it is unlawful to conduct any part of any such activity in this State[.] (

e) Monopolization of trade or commerce in this State, including, without limitation, attempting to monopolize or otherwise combining or conspiring to monopolize trade or commerce in this State. Nev. Rev. Stat. § 598A.060. This language is just as broad as that used in the Minnesota statute. Nevada requires only that the plaintiffs show that some part of the prohibited activity caused harm in Nevada, not that the commencement of the sham litigation took place there. The alleged illegal maintenance of a nationwide monopoly that resulted in monopolistic overpricing of Wellbutrin SR in Nevada is therefore sufficient to state a claim under

Section 598.A. See In re Wellbutrin XL, 260 F.R.D. at 163 (citing Pooler v. R.J. Reynolds Tobacco Co., No. CV00-2674, 2001 WL 403167 (Dist. Ct. Nev., Washoe Ct. Apr. 4, 2001)); In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 581 (M.D.Pa.2009); In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 413-414 (D.Del.2007). GSK’s argument that the Nevada statute requires a greater amount of intrastate conduct than that alleged in plaintiffs’ SAC is wrong.

GSK also argues plaintiffs’ Nevada claim, should be dismissed because the Nevada statute does not prohibit unilateral monopolization. See Appx. to Def.’s Reply, 27. Specifically, GSK points to the opening paragraph of Nevada’s antitrust law, which states that “[ejvery activity enumerated in this subsection constitutes a contract, combination or conspiracy in restraint of trade, and it is unlawful to conduct any part of any such activity in this State.” Nev. Rev. Stat. § 598A.060(1).

GSK claims this sentence indicates that “the act of monopolization is only proscribed inasmuch as it is in connection with a ‘contract, combination, or conspiracy.’ ” Appx. To Def.’s Reply, 27. Plaintiffs argue that the enumerated

section of the act dealing with monopolization counteracts the initial description of its scope. Appx. To Pl.’s Resp., 33-34. The subsection dealing with monopolization prohibits “[m]onopolization of trade or commerce in this State, including, without limitation, attempting to monopolize or otherwise combining or conspiring to monopolize trade or commerce in this State.” Nev. Rev. Stat. § 598A.060(l)(e). Plaintiffs claim this portion reaches unilateral monopolization because the word “or” separates “monopolization” from “combining or conspiring.” Appx. To PL’s Resp., 33-34.

Presumably, plaintiffs believe monopolization is therefore meant to cover unilateral activity separate and apart from activity requiring the agreement of two actors in combination or conspiracy. In Nevada, “[t]he construction of a statute should give effect to the Legislature’s intent.” Richardson Const., Inc. v. Clark Cnty. Sch. Dist., 123 Nev. 61, 64, 156 P.3d 21 (Nev.2007). In determining legislative intent, courts look first to unambiguous statutory language, and then look to the statutory scheme, reason, and public policy. Id.

I believe the use of the word “or” after the word “monopolization” suggests an intent that the scope of Nevada’s act include more than agreements. Moreover, my review of the legislative history of

section

section 598A.060 reveals that the antitrust statute was amended in 2001 to add subsection (

e) concerning monopolization. Legislative committee minutes pertaining to the amendment reveal that subsections (

e) and (

f) were designed to “provide in state law the corresponding language existent in the Clayton and Sherman Acts at the federal level, allowing specific state authority to review mergers otherwise covered under the Clayton and Sherman Anti-Trust Act.” Nevada Assembly Committee on Commerce and Labor, Seventy-First Session, 2001, Committee Minutes for Assembly Bill 152, April 2, 2001. The legislature, though, was not concerned only with reviewing mergers. The committee notes explain further that: [provisions (

e) and (f) ] allowed the state explicit statutory authority to review, in state law, circumstances where it thought monopolization was occurring, or if the acquisition of one corporation by another would have the effect of inducing market competition or other sorts of anti-competitive behavior. The bottom line was to ensure consumers were not victims of those practices that would inflate prices or restrict markets if the activities were not reviewed. Id. (emphasis added).

I will allow plaintiffs’ Nevada claim to proceed, because I believe the language of Nevada’s statute includes unilateral acts of monopolization and my review of the relevant legislative history affirms this reading. 8. New York Plaintiff Sidney Hillman Health Center claims GSK violated the Donnelly Act, codified at N.Y. Gen. Bus. Law § 340, et seq., by wrongfully maintaining its monopoly over relevant markets in New York. SAC ¶ 189. Plaintiffs conceded, earlier in the course of this litigation, that New York Civil Practice Law and Rules § 901(

b) prohibits class actions arising under this statute. Plaintiffs initially requested that I defer ruling on GSK’s motion to dismiss their New York antitrust and consumer protection claims until the Supreme Court issued a decision in Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., — U.S. -, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). See End Payor PL’s Notice of Supplemental Authority (No 04-5898, Document # 260). Shady Grove concerns whether Federal Rule of Civil Procedure 23 conflicts with N.Y. Civ. Prac. Law Ann. § 901(

b) and whether plaintiffs restricted by § 901(

b) may still seek certification of a class in federal court where jurisdiction is based on diversity of citizenship. Although the Supreme Court ruled that § 901(

b) does not bar class certification in federal court, there remains another ground on which plaintiffs’ New York antitrust claim should be dismissed.

The Donnelly Act provides that: Every contract, agreement, arrangement or combination whereby [a] monopoly in the conduct of any business, trade or commerce or in the furnishing of any service in this state, is or may be established or maintained, or whereby competition or the free exercise of any activity in the conduct of any business, trade or commerce or in the furnishing of any service in this state is or may be restrained or whereby ... is hereby declared to be against public policy, illegal and void. N.Y. Gen. Bus. Law § 340.

GSK claims plaintiffs’ monopolization claim must be dismissed because it requires plaintiffs to allege that anti-competitive conduct took place in New York. Appx. B To Mot. To Dismiss, 4. GSK also claims the Donnelly Act mandates that there be a conspiracy between two or more entities in order to establish antitrust liability, and that plaintiffs fail to make the requisite allegations. Id. at 9.

In the Donnelly Act, “the term ‘arrangement’ ... must be interpreted as contemplating a reciprocal relationship of commitment between two or more legal or economic entities similar to but not embraced within the more exacting terms, ‘contract,’ ‘combination’ or ‘conspiracy.’ ” Creative Trading Co., Inc. v. Larkin-Pluznick-Larkin, Inc., 136 A.D.2d 461, 462, 523 N.Y.S.2d 102 (N.Y.A.D. 1st Dept.1988) (quoting State of New York v. Mobil Oil Corp., 38 N.Y.2d 460, 381 N.Y.S.2d 426, 344 N.E.2d 357 (N.Y.1976); see also Great Atlantic & Pacific Tea Co., Inc. v. Town of East Hampton, 997 F.Supp. 340, 352 (E.D.N.Y.1998)).

Because plaintiffs have not alleged a conspiracy or agreement between GSK and any other entity, this is a valid ground upon which their New York antitrust claim should be dismissed. Therefore, I will grant GSK’s motion to dismiss plaintiffs’ New York antitrust claim. 9. North Carolina Plaintiff Sidney Hillman asserts a North Carolina monopolization claim under “N.C. Gen. Stat. §§ 75-1, et seq.” SAC ¶ 190. GSK seeks dismissal of this claim on the ground that the statute requires allegations of intrastate effects that are missing from plaintiffs’ complaint.

Chapter 75 of the North Carolina Code is entitled “Monopolies, Trusts, and Consumer Protection” and has multiple sections.

Section 75-1 provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce in the State of North Carolina is hereby declared to be illegal.” N.C. Gen. Stat. § 75-1.

Section 75-1.1 provides that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” N.C. Gen. Stat. § 75-1.1. The following

section provides that “[i]t is unlawful for any person to monopolize, or attempt to monopolize ... any part of trade or commerce in the State of North Carolina.” N.C. Gen. Stat. § 75-2.1. In support of its argument, GSK cites Laurrence v. UMLIC-Five Corp., No. 06-20643, 2007 WL 2570256 at *7 (N.C.Super. June 18, 2007), a case factually distinct from the one at hand.

In it, the court observed, in granting a motion to dismiss plaintiffs claim under North Carolina’s Unfair and Deceptive Trade Practices Act, that it was not “persuaded that the Defendants’ alleged acts have had a substantial in-state effect on North Carolina trade or commerce.” Id. The court reached this conclusion because the plaintiffs were suing under North Carolina law for the defendants’ attempt to foreclose on their land, which was located in Texas. Id. This case says nothing about a claim under the monopolization sections of the monopolization and unfair trade practices

chapter codified at N.C. Gen. Stat. §§ 75-1 and 75-2.1. Plaintiffs have alleged that GSK engaged in business in North Carolina by producing a drug sold and promoted in that state and that GSK unlawfully maintained its monopoly in North Carolina. These allegations are sufficient to state a cause of action under

Section 75-2.1, which prohibits monopolizing or attempting to monopolize any part of trade or commerce in North Carolina. See N.C. Gen. Stat. § 75-2.1. Judge Brody has found a similar claim sufficient to withstand a motion to dismiss. See In re Flonase Antitrust Litig., 692 F.Supp.2d at 534-35.

Without clear authority for the proposition that the sale and marketing of a product in North Carolina is insufficient intrastate conduct to expose GSK to antitrust liability there, I will deny the motion to dismiss the North Carolina monopolization claim, and treat plaintiffs’ North Carolina monopolization and Unfair and Deceptive Trade Practices Act claim as one and the same. 10. West Virginia Plaintiff the UA Plan asserts a cause of action under the West Virginia Antitrust Act (WVAA), codified at W. Va. Code § 47-18-1, et seq.

GSK argues this claim must be dismissed because the statute only-covers anti-competitive conduct producing substantial intrastate effects, which plaintiffs’ complaint fails to allege. Mot. To Dismiss, 14. The Act provides that: the establishment, maintenance or use of a monopoly or an attempt to establish a monopoly of trade or commerce, any part of which is within this State, by any persons for the purpose of excluding competition or controlling, fixing or maintaining prices is unlawful. W. Va.

Code § 47-18-4. “Trade or commerce” is defined to include “all economic activity involving or relating to any commodity or service.” W. Va. Code § 47-18-2. Federal courts in the Third Circuit agree that West Virginia’s statute creates a cause of action for anti-competitive conduct that produces effects within West Virginia, including the payment of higher prices for monopolized goods. See In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d at 582; In re Intel Corp. Microprocessor Antitrust Litig., 496 F.Supp.2d 404, 414 (D.Del.2007); see also Buscher v. Abbott Labs., No. 94-C-755, slip op. at 2 (W.Va.

Cir. Ct. Kanawha County Jan. 27, 1994) (“[T]he Antitrust Act prohibits a conspiracy that restrains West Virginia trade or commerce, regardless of the locus of the conspiracy.”). I agree that on its face, West Virginia’s statute applies to the conduct alleged in plaintiffs’ complaint because plaintiffs claim GSK’s anti-competitive conduct resulted in the overpricing of Wellbutrin SR in West Virginia. Therefore GSK’s motion to dismiss plaintiffs’ claim under the West Virginia Antitrust Act will be denied. 11. Wisconsin Plaintiff UFCW alleges monopolization in violation of Wis. Stat. § 133.01, et seq.

The Wisconsin statute provides penalties for “every person who monopolizes, or attempts to monopolize, or combines or conspires with any other person or persons to monopolize any part of trade or commerce” and its stated aim is “to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition by prohibiting unfair and discriminatory business practices which destroy or hamper competition.” Wis. Stat. § 133.01, § 133.03(2).

GSK claims plaintiffs Wisconsin claims should be dismissed because they have failed to plead substantial intrastate effects of the alleged monopoly, as required under the statute. Appx. B To Mot. To Dismiss, 4. This argument is without merit. Wisconsin’s antitrust statute reaches interstate commerce if “the conduct complained of ‘substantially affects’ the people of Wisconsin and has impacts in [Wisconsin], even if the illegal activity resulting in those impacts occurred predominantly or exclusively outside this state.” Olstad v.

Microsoft Corp., 700 N.W.2d 139, 141, 284 Wis.2d 224 (Wis. 2005); see also In re Cardizem CD Antitrust Litig., 105 F.Supp.2d 618, 665-666 (E.D.Mich.2000). The Wisconsin Supreme Court has expressly ruled that the Act applies to interstate commerce. Olstad, 700 N.W.2d at 156 (“[W]e conclude that

Chapter 133, particularly § 133.03, applies to interstate commerce, at least in some circumstances. Consistent with this holding, we withdraw the language from Conley Publ’g Grp., Ltd. v. Journal Commc’ns Inc., 265 Wis.2d 128, 665 N.W.2d 879 (Wis. 2003) that ‘the scope of

Chapter 133 is limited to intrastate transactions.’ ”). Plaintiffs’ allegation that GSK’s anticompetitive activity increased the price of Wellbutrin SR in Wisconsin is sufficient to meet the requirements of the statute. The Olstad court expressly noted that “the public interest and welfare of the people of Wisconsin are substantially affected if prices of a product are fixed or supplies thereof are restricted[.]” 700 N.W.2d at 146.

GSK argues alternatively that the Wisconsin statute requires allegations of a unilateral monopoly, citing statutory language that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce is illegal.” Wis. Stat. § 133.03(1). However, GSK fails to address subsection 2 of

section 133.03, which provides criminal penalties for “every person who monopolizes, or attempts to monopolize” trade or commerce. Wis. Stat. § 133.03(2). A plain reading of this language indicates that it covers conduct by a single person separate and apart from contracts or conspiracies. Moreover, the Wisconsin Supreme Court has recognized that “[a]lthough subsection (2) [of Wis. Stat. § 133.03] implies government enforcement,

Chapter 133 also authorizes private actions for persons injured by violations of its prohibitions.” Conley Publ’g, 265 Wis.2d at 139, 665 N.W.2d at 885 (citing Wis. Stat. § 133.18) abrogated on other grounds by Olstad, 700 N.W.2d 139. Plaintiffs’ allegation that GSK filed sham litigation to maintain higher prices for Wellbutrin SR in Wisconsin are sufficient to assert a cause of action under Wisconsin’s broadly worded antitrust statute. See Flonase Antitrust Litig., 692 F.Supp.2d at 535. Therefore, I will deny GSK’s motion to dismiss plaintiffs’ monopolization claims under Wisconsin law. B.

Plaintiffs’ Unfair and Deceptive Trade Practice Claims The end-payor plaintiffs assert that GSK “engaged in unfair competition or unfair, unconscionable, deceptive, or fraudulent acts or practices in violation of the state consumer protection statutes” of Arizona, Arkansas, California, Colorado, Florida, Idaho, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New York, North Carolina, Oklahoma, Pennsylvania, and Rhode Island when they filed baseless litigation against Eon and Impax in order to prevent market entry of a generic version of Wellbutrin SR. SAC ¶¶ 196-202.

The IBEW Plan alleges it purchased or reimbursed purchases of Wellbutrin SR in Florida, Missouri, Oklahoma, and Massachusetts and asserts causes of action based on those states’ laws. SAC ¶ 196.

For the same reason, plaintiff the Sheet Metal Workers Plan has asserted a claim in Florida; the UA Plan has asserted claims in Rhode Island and Idaho; the AFL Plan has asserted a claim in Florida; UFCW has asserted claims in Arkansas, Arizona, California, Colorado, Florida, Michigan, Minnesota, Missouri, Nevada, Oklahoma, and Pennsylvania; and Sidney Hillman Health Center has asserted claims in Florida, North Carolina, and New York. 1. Arizona On behalf of the plaintiffs, UFCW claims GSK violated the Arizona Consumer Fraud Act (“ACFA”), Ariz. Rev. Stat. Ann. § 44-1521, et seq. SAC ¶ 203.

This statute prohibits: [t]he act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression, or omission, in connection with the sale or advertisement of any merchandise[.] Ariz. Rev. Stat. § 44-1522(A). In construing the Act, Arizona courts “may use as a guide

interpretations given by the federal trade commission and the federal courts to 15 United States Code §§ 45, 52 and 55(a)(1).” Id. § 44-1522(C). The ACFA “applies to acts committed within Arizona in violation of its provisions.” State ex rel. Corbin v. Goodrich, 151 Ariz. 118, 726 P.2d 215, 221 (Ariz.Ct.App.1986). The state may enforce its statute “against a person or persons conducting business within the state.” Id. GSK argues that plaintiffs’ ACFA claim should be dismissed on two separate grounds.

First, it claims the ACFA requires some intrastate conduct or effect and that plaintiffs have failed to meet this intrastate requirement. Mot. To Dismiss, 14-15. Additionally, it claims that, because the ACFA only applies to fraudulent or deceptive conduct aimed at consumers, plaintiffs’ allegations that GSK filed objectively baseless lawsuits are not sufficient to state a claim. Id. at 15-16. GSK’s intrastate conduct argument is weak.

As discussed in the context of plaintiffs’ antitrust claims, plaintiffs’ allegations that GSK’s conduct caused consumers in each named state, including Arizona, to pay more for Wellbutrin SR, are sufficient at the pleading stage to show effect in Arizona. However, GSK’s second argument has merit. To succeed on a claim of consumer fraud in violation of the ACFA, a plaintiff must show “a false promise or misrepresentation made in connection with the sale or advertisement of merchandise and consequent and proximate injury resulting from the promise.” Kuehn v.

Stanley, 208 Ariz. 124, 91 P.3d 346, 351 (Ariz.App.Div.2004) (citing Correa v. Pecos Valley Dev. Corp., 126 Ariz. 601, 605, 617 P.2d 767, 771 (App.1980)). In Flonase Antitrust Litig., Judge Brody addressed whether allegations that defendants filed sham citizen petitions were sufficient to state a cause of action under the ACFA. 692 F.Supp.2d at 536-37.

Judge Brody reasoned that, “[a]t most, Plaintiffs allege that Defendant made arguments that had little basis; this is distinct from alleging that Defendant made statements which it knew were false or arguments that it knew violated the FDA’s policies, for example, by knowingly failing to include contradictory evidence.” Id. Judge Brody also observed that “[if] the Plaintiffs had alleged facts to show that the petitions GSK filed made statements that GSK knew were contradicted by data and information, and that GSK knowingly excluded such information, this might be sufficient to allege a misrepresentation.” Id.

Judge Brody’s reasoning is sound and is supported by a ruling from the District of Arizona that “[t]o state a claim under the [ACFA], Plaintiffs must allege that there was a false promise or misrepresentation in connection with the sale and that they were injured. An injury occurs when consumers rely on the misrepresentation, even though that reliance is not reasonable.” Persky v. Turley, Nos. 88-1830-PHX-SMM, 88-2089-PHX-SMM, 1991 WL 327434 at *9 (D.Ariz.

Dec. 19, 1991) (emphasis added) (allowing plaintiffs’ Arizona consumer protection claim to proceed because they pleaded “that they relied on the market price induced by the [defendant] company’s allegedly false registrations statements and prospecti.”). In other words, in order to maintain this claim, plaintiffs would need to allege that GSK not only made fraudulent misrepresentations of fact, but that those misrepresentations were relied upon by consumers of Wellbutrin SR.

Plaintiffs allege GSK made objectively baseless legal arguments in its patent infringement suits and misstatements to the PTO, but not that GSK misrepresented the nature or price of its product to consumers. Making arguments it knew to be objectively baseless, though unfair and improper, is not necessarily fraudulent.

See In re New Motor Vehicles Canadian Export Antitrust Litig., 350 F.Supp.2d 160, 178 (D.Maine, 2004) (“Unlike the FTC statute, the Arizona statute does not include a prohibition on unfair methods of competition, and it does not prohibit unfair acts and practices in addition to deceptive acts and practices.”). Therefore, I will grant GSK’s motion to dismiss plaintiffs’ ACFA claim. 2. Arkansas Plaintiff the UFCW alleges GSK violated the Arkansas Deceptive Trade Practices Act (“ADTPA”), codified at Ark. Code Ann. § 4-88-101, et seq. SAC ¶ 204.

The ADTPA prohibits ten specific offenses as well as “any ... unconscionable, false, or deceptive act or practice in business, commerce, or trade.” Ark. Code Ann. § 4-88-107(a)(10). The Supreme Court of Arkansas has ruled that a liberal construction of the ADTPA is appropriate, and that

section (a)(10), which is essentially a catchall provision, is not too vague for enforcement. See State ex rel. Bryant v. R & A Inv. Co., Inc., 336 Ark. 289, 295, 985 S.W.2d 299, 302 (Ark.1999). The court found support for its

interpretation of subsection (a)(10) in the next subsection of the statute, noting that “[s]ection 4-88-107(

b) illustrates that liberal construction of the DTPA is appropriate, as it provides that ‘[t]he deceptive and unconscionable trade practices listed in this

section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state.’ ” Id. GSK claims plaintiffs’ ADTPA claims must be dismissed because plaintiffs do not allege the type of conduct encompassed by the ADTPA.

GSK cites In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F.Supp.2d 1109, 1125 (N.D.Cal.2008), where the court construed the ADTPA narrowly and dismissed plaintiffs’ claims, refusing to apply the ADTPA to price-fixing claims and reasoning that it imposes no duty to disclose to consumers material facts about anti-competitive practices. However, other courts have found that the broad wording and liberal construction of the ADTPA allow for consumer protection claims based on price-fixing or monopolization.

See New Motor Vehicles, 350 F.Supp.2d at 178 (ruling that “unconscionable” conduct, defined as “showing no regard for conscience; affronting the sense of justice, decency, or reasonableness” extends to the maintenance of a monopoly designed to keep Canadian cars out of the United States); In re Chocolate Confectionary, 602 F.Supp.2d at 583, n. 57 (comparing the narrow view of unconscionability adopted by some courts with the broader view espoused in New Motor Vehicles, concluding that the broader view of unconscionability is the more reasonable

interpretation, and allowing plaintiffs’ ADTPA claims based on coordination of market pricing for chocolate products). Plaintiffs claim GSK violated the ADT-PA when it filed baseless sham litigation against Eon and Impax in an attempt to monopolize the market for Wellbutrin SR.

As an alternative to the argument that their allegations fall under the ADTPA’s catchall provision, they argue that GSK’s actions violate subsections of the ADTPA prohibiting (1) “knowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods or services or as to whether goods are original or new or of a particular standard, quality, grade, style, or model” and (2) “disparaging the goods, services, or business of another by false or misleading representation of fact.” Appx. To Pl.’s Reply to Mot.

To Dismiss, 21-22 (citing Ark. Code. Ann. § 4-88-107(1), (2)). I believe plaintiffs have failed to allege GSK made a false representation about the characteristics, benefits, alterations, or source of Wellbutrin SR. As stated previously, plaintiffs allege GSK made false representations to the PTO concerning the patent application process, but not that GSK ever misrepresented the nature of the drug to consumers. Plaintiffs have also failed to allege that GSK disparaged the goods of a competitor, and they cite no portion of their complaint that does so.

The fact that GSK’s alleged conduct does not constitute any enumerated offense in the ADTPA is not fatal to their claim. I find the reasoning of the court in New Motor Vehicles recognizing the broad reach of the ADTPA persuasive.

In other words, plaintiffs’ allegation that GSK engaged in a scheme designed to maintain its monopoly over the Wellbutrin SR market and prevent generic manufacturers from entering the market does fall under the catch all provision in subsection (10), which prohibits “any ... unconscionable ... act or practice in business [or] commerce.” Therefore, I will deny GSK’s motion to dismiss plaintiffs’ Arkansas consumer protection claims. 3. California Plaintiff the UFCW claims GSK engaged in unfair competition or unfair or deceptive acts in violation of California’s Unfair Competition Law (“CUCL”), Cal. Bus. & Prof.

Code § 17200, et seq. SAC ¶ 205. The statute defines unfair competition as “unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by

Chapter 1 (commencing with

Section 17500) of

Part 3 of Division 7 of the Business and Professions Code.” Cal. Bus. & Prof. Code § 17200. GSK argues that plaintiffs’ CUCL claim should be dismissed because the conduct alleged by plaintiffs does not fall within the purview of the statute. The CUCL is sweeping in scope. As explained by California’s Supreme Court, “[s]ection 17200 ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices,” and its broad language also allows “a practice [to be] deemed unfair even if not specifically proscribed by some other law.” Korea Supply Co. v.

Lockheed Martin Corp., 29 Cal.4th 1134, 1143, 131 Cal.Rptr.2d 29, 63 P.3d 937, 943 (Cal.2003) (citing Cel-Tech Commc’ns Inc. v. Los Angeles Cellular Tel. Co., 20 Cal.4th 163, 180, 83 Cal.Rptr.2d 548, 973 P.2d 527 (Cal.1999)). It “embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” Id.

Other courts have allowed what are essentially monopolization claims to proceed under the CUCL, both in addition to, See Wellbutrin XL, 260 F.R.D. at 160, and independent from, In re Terazosin, 160 F.Supp.2d at 1378-79, monopolization claims under California’s Cartwright Act. My decision to grant GSK’s motion to dismiss plaintiffs’ Cartwright Act monopolization claims does not in any way prevent me from allowing their CUCL claim to proceed.

See Terazosin, 160 F.Supp.2d at 1379 (finding that plaintiffs’ unilateral monopolization claims did not state a cause of action under the Cartwright Act, but reasoning that the CUCL “governs anti-competitive business practices as well as injuries to consumers, and the Court can find no authority for the proposition that unilateral monopolization of the market for a prescription drug would not offend its provisions.” (internal citations omitted)).

Plaintiffs claim GSK engaged in an unfair and illegal business practice by filing sham lawsuits designed to prevent the entry of generic alternatives into the market for Wellbutrin SR. This allegedly anti-competitive conduct falls under the broad scope of the CUCL. I will deny GSK’s motion to dismiss plaintiffs’ CUCL claims. Although the range of activities that fall under the CUCL is broad, the remedies available to plaintiffs are limited. The Act provides that: Any person who ... has engaged ... in unfair competition may be enjoined in any court of competent jurisdiction.

The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as maybe necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition. Cal. Bus. & Prof. Code § 17203. This

section expressly limits courts in their remedial authority, allowing them only to enjoin further unfair competition or restore money or property lost as the result of such practices. See Korea Supply, 131 Cal.Rptr.2d 29, 63 P.3d at 946. The plaintiffs may recover restitution for violations of the CUCL, but not compensatory damages. See id., 131 Cal.Rptr.2d 29, 63 P.3d at 947 (“[A]n individual may recover profits unfairly obtained to the extent that these profits represent monies given to the defendant or benefits in which the plaintiff has an ownership interest.”).

While the plaintiffs’ remedy may be limited, GSK’s sale of Wellbutrin SR to the indirect purchasers is sufficient to state a claim under the CUCL. Therefore, I will deny GSK’s motion to dismiss plaintiffs’ California consumer protection claim. 4. Colorado Plaintiff the UFCW asserts a cause of action for violation of the Colorado Consumer Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-105. SAC ¶206. The CCPA begins with the words “[a] person engages in a deceptive trade practice, when, in the course of such person’s business, vocation, or occupation, such person ...” Colo. Rev. Stat. §6-1-105(1).

It then sets forth a number of such practices, which include: Knowingly [making] a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods, food, services, or property or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith; or [failing] to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction.

Id. at § 6-l-105(e), (u). The only reference to “unfair” business practices in the CCPA states that “[t]he deceptive trade practices listed in this

section are in addition to and do not limit the types of unfair trade practices actionable at common law or under other statutes of this state.” Id. at § 6-1-105(3). GSK claims the Supreme Court of Colorado’s decision in Rhino Linings USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 144 (Colo.2003), establishes that allegations of anti-competitive behavior are not sufficient to state a cause of action under the CCPA, and that plaintiffs have not adequately alleged the deceptive trade practices required to establish liability under the act. Appx. B To Mot. To Dismiss, 6.

Plaintiffs counter that Rhino Linings concerned only the definition of “deceptive trade practice” and that, since they allege an unfair business practice, they have met the CCPA’s pleading requirements. Appx. To Pl.’s Resp., 23. Rhino Linings concerned a CCPA claim brought by a plaintiff who negotiated an exclusive and geographically restricted dealer contract with Rhino Linings and then sued it for breach of contract when it entered into a contract with another dealer who did business in the plaintiffs geographic area. See Rhino Linings, 62 P.3d at 144, 145.

The Court addressed whether plaintiff had established a CCPA violation for Rhino Linings’ false representation about the exclusivity of his sales territory. Id. at 145-46.

It affirmed that 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, vocation, or occupation; (3) that it significantly impacts the public as actual or potential consumers of the defendant’s goods, services, or property; (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, 62 P.3d at 146-47 (citing Hall v.

Walter, 969 P.2d 224, 235 (Colo. 1998)). Despite its use of “unfair” in addition to “deceptive,” in the above-quoted section, the court did not consistently refer to “unfair or deceptive” trade practices throughout its opinion. Rather, it limited its opinion to a discussion of whether plaintiffs claim against Rhino Linings constituted a deceptive trade practice. See id. at 147-48 (“[A] party may establish a deceptive trade practice by proof that a defendant knowingly made a misrepresentation that induces a party’s action or inaction.”).

In this context, the court observed that the CCPA was enacted with the goal of protecting customers from misrepresentations by persons covered under the Act. See id. (“[I]t is in the public interest to ... prevent the use of methods that have a tendency or capacity to attract customers through deceptive trade practices”) (citing People ex rel. Dunbar v. Gym of America, Inc., 177 Colo. 97, 113, 493 P.2d 660, 668 (Co.1972) (emphasis in original)). Rhino Linings appears limited in its scope to a discussion of what constitutes a deceptive trade practice.

But plaintiffs rely solely on the use of the word “unfair” in the initial portion of the test for a CCPA claim (stating that a plaintiff must show “that the defendant engaged in an unfair or deceptive trade practice”) for its argument that, because it alleged unfair trade practices, its claim should proceed. Plaintiffs provide no Colorado or other case where a plaintiff proceeded with a CCPA claim based on an unfair but not deceptive trade practice. Neither do plaintiffs attempt to argue that their allegations are sufficient to state a claim for a deceptive trade practice.

In support of its argument, GSK also cites New Motor Vehicles, 350 F.Supp.2d at 180 n. 28, in which Judge Hornby concluded that, although Rhino Linings and other Colorado cases seem to establish that deceptive or unfair business practices fall under the CCPA, because no Colorado court applied the term “unfair” to substantively broaden the scope of the Act, he could not do so.

Plaintiffs counter that they, unlike the plaintiffs in New Motor Vehicles, have met the pleading requirements under the CCPA by alleging that GSK’s initiated sham lawsuits designed to artificially maintain their monopoly over the Wellbutrin SR market. I believe Judge Hornby’s limited reading of the reach of the CCPA is correct. Although the Rhino Linings court limited its discussion to what constitutes a deceptive trade practice under the CCPA, nowhere in its opinion did it infer that unfair trade practices constitute a distinct claim under the CCPA.

Moreover, it cited cases from other jurisdictions in which misrepresentations aimed at consumers constituted violations of those jurisdictions’ consumer protection statutes, which addressed unfair or deceptive trade practices. See Rhino Linings, 62 P.3d at 148, n. 11. In these courts, unfair or deceptive trade practices were defined generally as deceptive acts intended to induce consumer reliance. Id.

In light of the Rhino Linings court’s focus on deceptive acts or statements aimed at consumers and the absence of any case from Colorado allowing an unfair trade practice claim to proceed, I, too, will refrain from adopting any broader construction of the CCPA. I will grant GSK’s motion to dismiss plaintiffs’ claim under the CCPA. 5. Florida Plaintiffs the IBEW Plan, the Sheet Metal Workers Plan, the AFL Plan, the UFCW, and Sidney Hillman claim GSK violated the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§ 501.201, et seq. As noted in

Section III.A.3 of the memorandum, plaintiffs have conceded that they assert a cause of action under this provision only, and do not claim GSK violated Florida antitrust law. One stated purpose of the FDUTPA is “[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or-practices in the conduct of any trade or commerce.” Fla. Stat. § 501.202(2).

The Act provides that “[u]n-fair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Fla. Stat. § § 501.204(1). GSK argues plaintiffs’ claim under the FDUTPA are barred because they fail to allege the required nexus with intrastate commerce. Appx. To Def.’s Reply, 13. In support of its reasoning, GSK cites Montgomery v.

New Piper Aircraft, Inc., 209 F.R.D. 221, 227 (S.D.Fla.2002), in which the District Court dismissed plaintiffs’ FDUTPA claims because the alleged injuries had not taken place entirely within Florida. However, the court rejected the plaintiffs’ claims in New Piper Aircraft because they were attempting to apply the FDUTPA to the claims of all members of a nationwide class. Id. (“In this case, there is no evidence in the record of any putative class members having suffered any alleged injury in Florida.”).

Here, plaintiffs seek to assert FDUTPA claims only as to indirect purchasers who purchased Wellbutrin SR in Florida and plan members who purchased Wellbutrin SR in Florida. Courts in this district have held that indirect payor plaintiffs may assert a cause of action under the FDUTPA for claims arising in Florida based on reimbursement for purchases of over-priced drugs, even when the alleged injuries did not take place entirely within Florida. See In re Wellbutrin XL Antitrust Litig., 260 F.R.D. at 162; In re Flonase Antitrust Litig., 692 F.Supp.2d at 537-38.

There is simply no language in the FDUTPA implying a limitation of its scope to harm taking place within Florida alone. Rather, the Act proscribes unfair and unconscionable business practices “in the conduct of any trade or commerce[.]” Fla. Stat. § 501.204(1). Therefore, I will deny GSK’s motion to dismiss plaintiffs’ FDUTPA claims. 6. Idaho Plaintiff the UA Plan claims GSK violated the Idaho Consumer Protection Act (“ICPA”) codified at Idaho Code Ann. §§ 48-601, et seq. SAC ¶208.

The stated purpose of the Act is “to protect both consumers and businesses against unfair methods of competition and unfair or deceptive acts and practices in the conduct of trade or commerce.” Idaho Code Ann. § 48-601. GSK argues (1) that indirect purchasers lack standing under the ICPA and (2) that the ICPA does not proscribe the type of conduct plaintiffs allege in their complaint. Appx. B To Mot. To Dismiss, 1, 7.

In support of its argument that indirect purchasers cannot file a claim under the ICPA, GSK cites In re Static Random Access Memory (SRAM) Antitrust Litig., 580 F.Supp.2d 896, 907 (N.D.Cal.2008), where the court dismissed an indirect purchaser action under the ICPA after indirect purchaser plaintiffs conceded that they were barred from asserting that claim. In its ruling, the court relied on State ex rel. Wasden v. Daicel Chem.

Indus., Ltd., 141 Idaho 102, 106, 106 P.3d 428, 432 (Idaho 2005), where the court found that the Supreme Court’s holding in Illinois Brick applied to claims under the Idaho Antitrust Act and therefore barred indirect purchaser claims. Id. Plaintiffs are correct that Wasden did not address the issue of indirect purchaser standing under the ICPA. Because it is clear that GSK’s second ground for dismissal of plaintiffs’ complaint is meritorious, I will not rule on whether indirect purchasers have standing to sue under the ICPA.

What is perhaps the most broadly worded subsection of the ICPA prohibits “[e]ngaging in any unconscionable method, act or practice in the conduct of trade or commerce, as provided in

section 48-603C, Idaho Code[.]” Idaho Code Ann. § 48-601(18). Idaho Code

Section 48-603C states that “any unconscionable method, act or practice in the conduct of any trade or commerce violates the provisions of this

chapter whether it occurs before, during, or after the conduct of the trade or commerce.” Idaho Code Ann. § 48-603C(l). In determining whether a method, act or practice is unconscionable, one circumstance courts can consider is “whether the sales conduct or pattern of sales conduct would outrage or offend the public conscience, as determined by the court.” Idaho Code Ann. § 48-603C(d). GSK claims the Supreme Court of Idaho’s ruling that subsection (

d) of Idaho Code § 48-603C “is designed to prohibit unconscionable ‘sales conduct’ that is directed at the consumer,” Wasden, 106 P.3d at 435, precludes plaintiffs from asserting a cause of action for unconscionable conduct based on GSK’s filing of allegedly sham litigation. Appx. B To Mot. To Dismiss, 7. The plaintiffs in Wasden alleged defendants had engaged in a price-fixing scheme, and the court ruled price-fixing did not fall under the scope of § 48-603C(d).

The court reasoned that, “[w]hen construed in the context of the first three subsections, [the “unconscionable”] subsection is designed to prohibit unconscionable “sales conduct” that is directed at the consumer.” Id. Wasden precludes plaintiffs claims, since they do not allege GSK engaged in unconscionable sales conduct directed at consumers. Plaintiffs appear to concede as much. See Appx. to Pl.’s Resp., 24-25 (“Defendants’ conduct easily meets a number of the specifically enumerated ‘unfair methods and practices’ set out in Idaho Code Ann. § 48-603.”).

They argue instead that their allegations of GSK’s unlawful and deceptive scheme to monopolize the Wellbutrin SR market state a claim for violation of subsections prohibiting “causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services,” Idaho Code Ann. § 48-603(2), “representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have[,]” id. at § 48-603(5), “representing that goods or services are of a particular standard, quality, or grade ... if they are of another[,]” id. at § 48-603(7), “disparaging the goods, services, or business of another by false or misleading representations of fact[,]” id. at § 48-603(8) and “engaging in any act or practice which is otherwise misleading, false, or deceptive to the consumer,” id. at § 48-603(17).

The first four subsections quoted above, when plainly read, do not apply to the plaintiffs’ allegations against GSK. The remaining question is whether there exists a construction of subsection 17, which prohibits “[ejngaging in any act or practice which is otherwise misleading, false, or deceptive to the consumer,” Idaho Code Ann. § 48-601(17), that covers the plaintiffs’ claims. The ICPA is “intended to deter unfair and deceptive trade practices and is to be construed liberally[.]” In re Edwards, 233 B.R. 461 (Bkrtcy.D.Idaho 1999).

Idaho courts construing the ICPA look to the Federal Trade Commission Act, 15 U.S.C. 45(a)(1) (“FTCA”), for guidance. See State ex rel. Kidwell v. Master Distrib., Inc., 101 Idaho 447, 453, 615 P.2d 116, 122 (Idaho, 1980). However, in doing so, the Idaho Supreme Court has focused on the importance in the FTCA of preventing fraudulent advertising and other misleading statements aimed at consumers. See id., 615 P.2d at 122-23 (“An act or practice is unfair if it is shown to possess a tendency or capacity to deceive consumers.”).

I will dismiss plaintiffs’ ICPA claims for the same reason I will dismiss their Arizona consumer protection claims. Arizona’s consumer protection statute, the language of which is somewhat similar to the language of § 48-601(17), also applies to business transactions directly involving consumers. Plaintiffs have presented no authority supporting a broad construction of subsection (17) of the ICPA to include conduct which, though generally deceptive, was not aimed at consumers, but rather was aimed at the PTO and other drug manufacturers. In the absence of any such authority, I will read this

section to prohibit misleading conduct directed at the consumer. Even if plaintiffs’ claims in this case prove to be true, GSK’s conduct was at all times directed towards the PTO and generic manufacturers. It is not accused of providing false information about Wellbutrin SR or otherwise misleading consumers about the nature of Wellbutrin SR. Therefore, I will grant GSK’s motion to dismiss plaintiffs’ claim under the Idaho Consumer Protection Act. 7. Massachusetts Plaintiff the IBEW Plan asserts a claim under Mass. Gen. Laws ch. 93A, et seq. SAC ¶ 209.

GSK claims this cause of action must be dismissed because plaintiffs failed to file a mandatory pre-filing notice. Appx. B To Mot. To Dismiss, 9. At least thirty days prior to the filing of a complaint under the act, a plaintiff must mail or deliver a written demand for relief to the defendant, identifying the claimant and describing the unfair or deceptive trade practice alleged. Mass. Gen. Laws. Ch. 93A § 9(3). This statutory notice requirement is “not merely a procedural nicety, but, rather, ‘a prerequisite to suit.’ ” Rodi v. S.

New England Seh. of Law, 389 F.3d 5, 19 (1st Cir.2004). “A demand letter listing the specific deceptive practices claimed is a prerequisite to suit and as a special element must be alleged and proved." Spring v. Geriatric Authority of Holyoke, 394 Mass. 274, 475 N.E.2d 727, 735 (1985) (emphasis in original). In other words, a later allegation that plaintiffs sent a demand letter does not suffice to meet the requirement of ch. 93A § 9(3); that a demand letter was sent must be alleged in the complaint.

Plaintiffs claim in their response to GSK’s motion to dismiss that they sent written notice and/or demand letters both in 2002 and 2007. Appx. to PL’s Resp. To Def.’s Mot., 6. However, I cannot find, and the plaintiffs nowhere point to, an allegation in the SAC that the demand letters were properly filed. While this may seem a trite technicality, Massachusetts courts have been clear that failure to allege delivery of a demand letter is fatal to a complaint. See City of Boston v. Aetna Life Ins. Co., 399 Mass. 569, 506 N.E.2d 106, 109 (1987). Judge Brody has dismissed consumer protection claims asse

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