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Sheet Metal Workers Local 441 Health & Welfare Plan v. Glaxosmithkline

September 7, 2010

SHEET METAL WORKERS LOCAL 441 HEALTH & WELFARE PLAN, ET AL, PLAINTIFFS
v.
GLAXOSMITHKLINE, PLC, ET AL, DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

OPINION

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................................................ 5

II. STANDARD OF REVIEW......................................... 7

III. PRELIMINARY CHOICE OF LAW QUESTION...................... 8

IV. DISCUSSION OF STATE LAW CLAIMS........................... 14

A. Plaintiffs' Monopolization Claims............................... 15

1. Arizona.............................................. 15

2. California............................................ 15

3. Florida............................................... 17

4. Massachusetts......................................... 18

5. Michigan............................................. 19

6. Minnesota............................................ 21

7. Nevada.............................................. 23

8. New York............................................ 26

9. North Carolina........................................ 29

10. West Virginia......................................... 30

11. Wisconsin............................................ 32

B. Plaintiffs' Unfair and Deceptive Trade Practice Claims...............34

1. Arizona.............................................. 35

2. Arkansas............................................. 38

3. California............................................ 41

4. Colorado............................................. 44

5. Florida............................................... 47

6. Idaho................................................ 49

7. Massachusetts......................................... 53

8. Michigan............................................. 55

9. Minnesota............................................ 57

10. Missouri............................................. 61

11. Nevada.............................................. 65

12. New York............................................ 66

13. North Carolina........................................ 68

14. Oklahoma............................................ 72

15. Pennsylvania......................................... 74

16. Rhode Island.......................................... 77

C. Plaintiffs' Unjust Enrichment Claims............................ 80

a. Can the Plaintiffs Bring Unjust Enrichment

Claims in States Where Indirect Purchasers

Have Been Barred From Pursuing State Antitrust and Consumer Protection Claims?................... 81

b. Can the Plaintiffs Bring Unjust Enrichment

Claims Where Applicable State Antitrust And Consumer Protection Statutes Do Not Provide for an Equitable Remedy?................... 86

c. Do Plaintiffs Need to Show Conferral of a

Direct Benefit In Order to Maintain an Unjust Enrichment Claim?............................... 90

1. Alabama............................................. 92

2. Arkansas............................................. 94

3. Arizona.............................................. 95

4. California............................................ 95

5. Colorado............................................. 98

6. Florida.............................................. 101

7. Georgia............................................. 101

8. Idaho............................................... 103

9. Iowa............................................... 103

10. Illinois.............................................. 106

11. Indiana............................................. 107

12. Kentucky............................................ 108

13. Louisiana........................................... 109

14. Massachusetts........................................ 110

15. Michigan............................................ 112

16. Minnesota........................................... 114

17. Missouri............................................ 116

18. Nevada............................................. 118

19. New York........................................... 119

20. North Carolina....................................... 120

21. Oklahoma........................................... 123

22. Pennsylvania......................................... 124

23. Rhode Island......................................... 128

24. Tennessee........................................... 129

25. Texas............................................... 131

26. West Virginia........................................ 132

27. Wisconsin........................................... 134

V. CONCLUSION................................................. 136

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.*fn1

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. 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. 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 ("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. Rather, a "complaint must allege facts suggestive of [the proscribed] conduct," Twombly, 550 U.S. at 564, 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).

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). "[O]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*fn2, 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.*fn3 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, "[g]iven 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., II(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 (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 plaintiff's 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.*fn4 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[.]")

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. Fl. 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.*fn5

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

Plaintiff's 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.*fn6

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 Aurura Cable Comm. Inc. v. Jones Intercable, Inc., 720 F.Supp. 600, 603 (W.D.Mich. 1989) and Peoples Sav. Bank v. Stoddard, 102 N.W.2d 777, 796 (Mich. 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 over-pricing 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 "[e]very 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. ยง 598A.060(1). GSK claims this sentence indicates that "the act of ...


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