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In re Loestrin 24 FE Antitrust Litigation

United States District Court, D. Rhode Island

October 17, 2019

IN RE LOESTRIN 24 FE ANTITRUST LITIGATION THIS DOCUMENT RELATES TO ALL END-PAYOR CLASS ACTIONS MDL No. 13-2472

          MEMORANDUM OF DECISION ON CLASS CERTIFICATION AND ORDER REGARDING MOTIONS TO EXCLUDE CERTAIN EXPERT OPINIONS AND DEFENDANTS' RENEWED MOTION TO DISMISS

          William E. Smith Chief Judge.

         In this putative class action, the End-Payor Plaintiffs (“EPPs”) allege that Defendants Warner Chilcott (US), LLC, Warner Chilcott Sales (US), LLC, Warner Chilcott Company, LLC, Warner Chilcott plc, and Warner Chilcott Limited (collectively, “Warner Chilcott”) and Defendants Watson Pharmaceuticals, Inc. and Watson Laboratories, Inc. (together, “Watson”[1], and collectively, with Warner Chilcott, “Defendants”) violated state and federal law through a series of actions intended to delay and suppress generic competition for the oral contraceptive Loestrin 24 Fe (“Loestrin 24”).[2] The EPPs moved for class certification. See generally EPPs' Mot. for Class Certification and Appointment of Class Counsel, ECF No. 526; Mem. of Law in Supp. of EPPs' Mot. for Class Certification and Appointment of Counsel (“EPPs' Mot. for Class Certification”), ECF No. 528-1. In order to allow sufficient time for notice to the class prior to trial, which is slated to commence on January 6, 2020, the Court - having found the prerequisites of Rule 23 fully satisfied - issued an Order dated September 17, 2019, granting in part and denying in part the EPPs' Motion for Class Certification, promising an opinion explaining the Order.[3] See ECF No. 1226. This Memorandum serves that purpose.

         In addition to explaining the reasoning underlying the Order on the EPPs' Motion for Class Certification, for the reasons set forth below, Defendants' Renewed Motion to Dismiss and Motion for Judgment on the Pleadings as to Claims in EPPs' Second Amended Consolidated Class Action Complaint, ECF No. 576, is GRANTED IN PART and DENIED IN PART; Defendants' Motion to Exclude the Opinion and Testimony of EPPs' Expert Gary L. French, Ph.D., ECF No. 575, is DENIED; EPPs' Motion to Exclude the Opinions and Testimony of James W. Hughes, Ph.D. (“EPPs' Mot. to Exclude Hughes”), ECF No. 634, is GRANTED IN PART AND DENIED IN PART; Defendants' Motion to Exclude the Opinions and Testimony of EPPs' Experts Eric Miller, Laura Craft, and Myron Winkelman, ECF No. 698, is GRANTED IN PART AND DENIED IN PART; and the EPPs' Motion to Exclude the Opinions and Testimony of Mr. Timothy E. Kosty and Dr. Bruce A. Strombom (“EPPs' Mot. to Exclude Kosty and Strombom”), ECF No. 733, is DENIED.

         I. Background

         The Court constrains its recitation of the factual and procedural background to that relevant to the EPPs' Motion for Class Certification.[4]

         The EPPs are health and welfare benefit plans, health and welfare benefit funds, and employee benefit welfare funds (collectively, the “Third-Party Payors” or the “TPPs”) and consumers who purchased, paid for, and/or provided reimbursement for Loestrin 24 and Minastrin 24 (“Minastrin”) and/or their AB-rated generic equivalents.[5] End-Payor Pls.' Second Am. Consolidated Class Action Compl. (“EPP Compl.”) ¶¶ 15-26, ECF No. 169. They allege that, in the first instance, Warner Chilcott committed fraud on the Patent and Trademark Office in enforcing the patent for Loestrin 24 and filing sham litigation against potential generic competitors. In re Loestrin 24 Fe Antitrust Litig., 261 F.Supp.3d 307, 318-21 (D.R.I. 2017) (“Loestrin I”). The EPPs further allege that Warner Chilcott then settled its sham patent lawsuits against Watson and Lupin Pharmaceuticals, Inc. and/or Lupin Ltd. (“Lupin”) by making large and unjustified payments in exchange for their agreement to stay out of the Loestrin 24 market. Id. at 321-23.[6] Before generic entry was set to occur, Warner Chilcott introduced a new drug, Minastrin (a chewable version of Loestrin 24 with added sweetener on reminder days), to erode the brand Loestrin 24 prescription base before generic entry. Id. at 323-24. This alleged product hop allowed Warner Chilcott to retain branded sales (in Minastrin) once generic Loestrin 24 entered and state automatic substitution laws kicked in. Id.

         The above order of events has consequences for the Court's ability to assess - as antitrust law requires - what the world would have looked like but for Defendants' alleged anticompetitive conduct.[7] Because, the EPPs say, Defendants executed the product hop and pulled brand Loestrin 24 from the market before automatic substitution laws took effect, there is a dearth of evidence reflecting how the market would have responded to generic entry in a but-for world. This paucity of evidence means that the EPPs and Defendants, and their respective experts, do not agree on which methodology best constructs the contours of the but-for world.

         Complicating things further, after the EPPs filed their Motion for Class Certification, the First Circuit issued its opinion in In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018) (“Asacol”). That decision makes plain in this Circuit what may have been unclear before: in order to prevail on its motion for class certification, the class action plaintiff must provide a plan to identify and remove any uninjured entities and/or persons from the class in a manner that is both administratively feasible and protective of the defendant's Seventh Amendment and due process rights. Id. at 52. In a case like this one, where the parties do not dispute that there is some percentage of uninjured consumers who would have purchased a more expensive brand product over a less expensive generic in the but-for world, this task proves impossible with respect to any class containing individual consumers.

         II. Discussion

         A. Defendants' Renewed Motion to Dismiss and For Judgment on the Pleadings

         Only a direct purchaser - and not others further down the chain of distribution - that incurred overcharges from an antitrust violation may recover damages under federal antitrust law. Illinois Brick Co. v. Illinois, 431 U.S. 720, 746-47 (1977). This “indirect-purchaser rule”, however, does not bar indirect purchasers from bringing claims under state law where states otherwise recognize such a cause of action, either through Illinois Brick-repealer laws or otherwise. California v. ARC America Corp., 490 U.S. 93, 103 (1989). The EPPs lodge their claims under the laws of forty-eight states, Puerto Rico, and the District of Columbia.[8] See generally Appendix A, Notice of Submission in Resp. to Court's Sept. 17, 2019 Order (“EPP State Law Claims Chart”), ECF No. 1231-1; EPP Compl. Defendants moved to dismiss all of the EPPs' state law claims in their Motion to Dismiss the EPPs' Second Amended Complaint. See Defs.' Mot. to Dismiss All Claims in All Pls.' May 9, 2016 Compls. 131-75 (“Defs.' Mot. to Dismiss”), ECF No. 192. The Court deferred ruling on these state-specific issues until class certification, Loestrin I, 261 F.Supp.3d at 359-61, and Defendants have filed a Renewed Motion to Dismiss. See generally Defs.' Mem. of Law in Opp'n to EPPs' Mot. for Class Certification and in Supp. of Defs.' Renewed Mot. to Dismiss and Mot. for J. on the Pleadings (“Defs.' Renewed Mot. to Dismiss”), ECF No. 574-2.

         1. Article III Standing[9]

         Defendants assert that the named TPPs[10] do not have Article III standing to bring claims on behalf of TPPs injured in states other than those in which the named TPPs were injured. Id. at 4, 52-53. Remarkably, Defendants pursue this argument despite the First Circuit's recent holding to the contrary in Asacol. See Id. at 53 (acknowledging that the First Circuit recently rejected this argument in Asacol but arguing the court did not address all controlling Supreme Court precedent (citing Asacol, 907 F.3d at 42)). Because this Court is bound by the decisions of the First Circuit, absent intervening Supreme Court precedent, it is clear the EPP class representatives must demonstrate that they have “the necessary stake in litigating conduct . . . to which [the named plaintiffs] ha[ve] not been subject” in order to establish that they have standing in other jurisdictions.[11] Asacol, 907 F.3d at 48 (quoting Blum v. Yaretsky, 457 U.S. 991, 999 (1982)). And as long as they satisfy that requirement, which they do, they have standing to “litigate as class representatives materially identical claims by other persons under the same laws under which [their] claims arise.” Id. at 47.

         Defendants further contend that the TPPs may only establish injury in the states in which they are headquartered and not in the states in which they provided reimbursement for the drugs at issue. Defs.' Renewed Mot. to Dismiss 54 (conceding standing in states where the named TPPs are headquartered). The Court is not persuaded and holds that the named TPPs allege injury, and thus have standing, in states where they purchased the drugs at issue and/or reimbursed their members for purchases of the drugs at issue. See In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 758 (E.D. Pa. 2014) (“Niaspan”) (holding that named indirect purchaser plaintiffs may bring suit “under the laws of states in which they reside or in which they either purchased or made reimbursements for [the drug]”); In re Flonase Antitrust Litig., 692 F.Supp.2d 524, 533 (E.D. Pa. 2010) (“Flonase”) (“Plaintiffs suffered injury and have standing in states where they purchased a drug or reimbursed their members for purchases of a drug.”);[12] In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 157 (E.D. Pa. 2009) (“Wellbutrin XL”) (holding that indirect purchaser plaintiffs had standing to bring claims under the laws of the state where “plaintiffs themselves are located” and “their members made purchases of” the drug). But see In re K-Dur Antitrust Litig., No. CIV.A. 01-1652(JAG), 2008 WL 2660783, at *5 (D.N.J. Mar. 19, 2008) (holding that, where TPPs were “not suing derivatively for alleged injury to their members” but instead “asserting claims on their own behalf”, choice of law principles dictate that the law of the states where the TPPs have their principal place of business governs the claims). The named TPPs are headquartered and/or purchased, paid for, and/or provided reimbursement for the drugs at issue in the following states: California, Connecticut, Delaware, the District of Columbia, Florida, Illinois, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, and Virginia. EPP Compl. ¶¶ 15-23. They propose a class of purchasers in 49 states. See EPP State Law Claims Chart. Specifically, they bring antitrust claims under the laws of 28 states; unfair or unconscionable acts and practices claims under the laws of 17 states; and unjust enrichment claims under the laws of 49 states. Id.

         Defendants argue that, even under Asacol's “sufficient personal stake” or “substantial stake” test, the named TPPs lack standing to bring (1) antitrust claims under the laws of the District of Columbia, Hawaii, Mississippi, Nevada, New York, Oregon, Tennessee, and West Virginia; (2) consumer protection claims under the laws of the District of Columbia, Michigan, Nevada, New Mexico, New York, Rhode Island, Tennessee, and West Virginia; and (3) claims for enhanced or treble damages under the laws of Arizona, New Hampshire, New Mexico, North Dakota, the antitrust laws of Iowa and Michigan, or the consumer protection laws of Massachusetts, Missouri, and Tennessee.[13] Defs.' Renewed Mot. to Dismiss 61; Defs.' Reply in Supp. of the Renewed Mot. to Dismiss and Mot. for J. on the Pleadings (“Defs.' Reply to Mot. to Dismiss”) 6, ECF No. 665-1.

         First, the named TPPs have Article III standing to bring antitrust claims under the laws of the District of Columbia, Hawaii, Mississippi, Nevada, New York, Oregon, Tennessee, and West Virginia. While these states may require the named Plaintiffs to demonstrate that Defendants' conduct had intrastate effect, the named TPPs also have a personal stake in doing so because they are headquartered and/or purchased, paid for, and/or provided reimbursement for the drugs at issue in the District of Columbia, Nevada, and New York, see EPP Compl. ¶¶ 15-23, which under Defendants' own estimation, share this requirement. Moreover, as discussed further below, the EPPs' Complaint alleges nationwide antitrust violations, the antitrust impact of which was felt within each state. With these allegations in hand, the effect on intrastate commerce cannot seriously be disputed. See Asacol, 907 F.3d at 50 (“Warner, though, makes no showing that an effect on intrastate commerce will even be a disputed issue.”).

         Second, the named TPPs have “a substantial stake in proving up a case that is, as a practical matter, unreliably distinguishable from proving willfulness”, Asacol, 907 F.3d at 50, under the consumer protection laws of the District of Columbia, Michigan, Nevada, New Mexico, New York, Rhode Island, Tennessee, and West Virginia, because the named TPPs are alleged to be headquartered and/or purchased, paid for, and/or provided reimbursement for the drugs at issue in each of these states save New Mexico, Tennessee, and West Virginia.

         Third, the named TPPs also have standing to bring enhanced or treble damages under various state laws. See Defs.' Renewed Mot. to Dismiss 61 (arguing the named EPPs do not have standing to bring these claims); see also Appendix B, Defs.' Renewed Mot. to Dismiss (detailing the statutes under which the EPPs may be entitled to enhanced or treble damages). The named TPPs have a substantial interest in establishing that Defendants “flagrant[ly]” or “willfully” violated the law, as they pursue their own claim under Michigan antitrust law, which provides that a jury may award up to treble damages for a “flagrant” violation. Mich. Comp. Laws § 445.778; see also Ariz. Rev. Stat. § 44-1408(B) (treble damages for “flagrant” violation); N.H. Rev. Stat. Ann. § 356:11(II) (up to treble damages for “willful or flagrant” violation); N.M. Stat. Ann. § 57-1-3(A)(treble damages “if the facts so justify”); N.D. Cent. Code § 51-08.1-08(2) (treble damages for a “flagrant” violation); Mass. Gen. Laws ch. 93A, § 9(3), 11 (treble damages for “willful or knowing” violation); Tenn. Code Ann. § 47-18-109(3)(treble damages for “willful or knowing” violations); Iowa Code § 553.12 (court may award “twice the actual damages”).[14]

         Defendants do not attempt to apply the Asacol “substantial stake” test to the EPPs' unjust enrichment claims - instead spilling much ink rearguing Asacol and staking out their position that the EPPs waived their unjust enrichment claims. See generally Defs.' Renewed Mot. to Dismiss; Defs.' Reply to Renewed Mot. to Dismiss. In any event, the Court concludes that the named TPPs have a “substantial stake” in litigating the unjust enrichment claims under the laws of all jurisdictions in which they are asserted. While several of the TPPs' unjust enrichment claims under various state laws are dismissed below for failure to state a claim, the named TPPs have a substantial stake in pursuing each claim, given the similarity of the well-rehearsed elements of an unjust enrichment claim under the laws of each state. See In re Suboxone (Buprenorphine Hydrochloride and Naloxone) Antitrust Litig., 64 F.Supp.3d 665, 703 (E.D. Pa. 2014) (“Suboxone”), on reconsideration in part 2015 WL 12910728 (E.D. Pa. Apr. 14, 2015) (“While it is true that the elements of unjust enrichment vary state by state, ‘almost all states at minimum require plaintiffs to allege that they conferred a benefit or enrichment upon defendant and that it would be inequitable or unjust for defendant to accept and retain the benefit.'” (quoting Flonase, 692 F.Supp.2d at 541)).

         In sum, the named TPPs have Article III standing under the laws of the states in which they press their claims. See generally EPP State Law Claims Chart.

         2. State-Specific Issues[15]

         a. Whether Illinois Brick Bars Suit in Eight Jurisdictions

         Defendants contend that Illinois Brick bars the EPPs' claims under the laws of eight states (viz., Idaho, Illinois, Massachusetts, Missouri, Montana, Puerto Rico, Rhode Island, and Utah). Defs.' Renewed Mot. to Dismiss 62-65. The EPPs disagree. EPPs' Mem. Of Law in Opp'n to Defs.' Renewed Mot. to Dismiss & Mot. for J. on the Pleadings (“EPPs' Opp'n to Renewed Mot. to Dismiss”) 10-21.

         Illinois.

         Defendants contend that the Illinois Antitrust Act bars indirect purchaser class actions and that Illinois does not permit indirect purchasers to bring suit under its Consumer Fraud and Deceptive Business Practices Act as an “end-run” around the Illinois Antitrust Act. Defs.' Renewed Mot. to Dismiss 63. The Court agrees.

         The Illinois Antitrust Act provides that

No provision of this Act shall deny any person who is an indirect purchaser the right to sue for damages. . . . Provided further that no person shall be authorized to maintain a class action in any court of this State for indirect purchasers asserting claims under this Act, with the sole exception of this State's Attorney General, who may maintain an action parens patriae as provided in this subsection.

740 Ill. Comp. Stat. 10/7 (2010). To sort this out, both parties invoke the United States Supreme Court's decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010).[16] In Shady Grove, the Supreme Court considered a New York law that barred class action suits seeking recovery of a “penalty” or statutory minimum damages. 559 U.S. at 396. The law in question was contained within a section of New York procedural law governing class certification. Id. at 396 n.1; see also Id. at 416 ((Stevens, J., concurring in part and concurring in the judgment) (“The New York law at issue . . . is a procedural rule that is not part of New York's substantive law.”)). The plurality reasoned that federal procedural rules apply in federal courts, and where state laws conflict with Rule 23, federal law preempts state law. Id. at 409. Justice Stevens reasoned that “[a] federal rule . . . cannot govern a particular case in which the rule would displace a state law that is procedural in the ordinary use of the term but is so intertwined with a state right or remedy that it functions to define the scope of the state-created right.” Shady Grove, 559 U.S. at 423 (Stevens, J., concurring in part and concurring in the judgment). In other words, a federal rule may not operate to “effectively abridge[], enlarge[], or modif[y] a state-created right or remedy . . . .” Id. at 422.

         Interpreting Shady Grove, the First Circuit has explained that, “[i]n getting at the potential rub in the relationship between a Federal Rule of Procedure and the state law, courts now ask if the federal rule is ‘sufficiently broad to control the issue before the court.'” Godin v. Schencks, 629 F.3d 79, 86 (1st Cir. 2010) (quoting Shady Grove, 559 U.S. at 421) (Stevens, J., concurring in part and concurring in the judgment)). If the federal rule is sufficiently broad to control the issue, the “rule must be given effect despite the existence of competing state law so long as the rule complies with the Rules Enabling Act.” Id. If it is not so broad, state law controls. Id. That said, a federal court may decline to apply state law if doing so would further the central objectives of Erie: “discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Id. (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)).

         This Court is not the first in this Circuit to consider the applicability of Shady Grove to the Illinois Antitrust Act. See, e.g., In re Nexium (Esomeprazole) Antitrust Litig., 968 F.Supp.2d 367, 408-09 (D. Mass. 2013) (“Nexium I”); In re Solodyn (Minocycline Hydrochloride) Antitrust Litig., No. CV 14-MD-02503-DJC, 2015 WL 5458570, at *16-17 (D. Mass. Sept. 16, 2015) (“Solodyn I”). The Nexium and Solodyn courts noted that the Illinois Antitrust Act appears in the state's substantive antitrust statute, not in any generally applicable procedural law. Solodyn I, 2015 WL 5458570, at *16-17 (citing Nexium I, 968 F.Supp.2d at 408-09). This Court joins the Nexium and Solodyn courts in concluding that Rule 23 does not preempt Illinois antitrust law because it would be “an application of a federal rule that effectively abridges, enlarges, or modifies a state-created right or remedy.” Shady Grove, 559 U.S. at 422 (Stevens, J., concurring in part and concurring in the judgment). Accordingly, the Court dismisses for lack of standing the EPPs' claims under the Illinois Antitrust Statute.

         Defendants also argue that the EPPs do not have standing to bring claims under the Illinois Consumer Fraud and Deceptive Business Practices Act because it would allow an “end run” around the class action ban in the Illinois Antitrust Act. Defs.' Renewed Mot. to Dismiss 63. The Illinois Consumer Fraud and Deceptive Business Practices Act provides that “[u]nfair methods of competition and unfair or deceptive acts or practices . . . in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” 815 Ill. Comp. Stat. 505/2. The Illinois Supreme Court has held that this statute was not intended to be “an additional antitrust enforcement mechanism[, ]” but instead, “[t]he language of the Act shows that its reach was to be limited to conduct that defrauds or deceives consumers or others.” Laughlin v. Evanston Hosp., 550 N.E.2d 986, 993 (Ill. 1990). And so, this Court joins the majority of other courts in concluding that the EPPs do not have standing to maintain what is in essence an antitrust claim by another name under the Illinois Consumer Fraud and Deceptive Business Practices Act. See, e.g., Solodyn I, 2015 WL 5458570, at *16-17; In re Aggrenox Antitrust Litig., No. 3:14-MD-2516(SRU), 2016 WL 4204478, at *6-7 (D. Conn. Aug. 9, 2016) (“Aggrenox II”); In re Lipitor Antitrust Litig., 336 F.Supp.3d 395, 422 (D.N.J. 2018)(“Lipitor”); Wellbutrin XL, 260 F.R.D. at 162.

         Massachusetts. Section 11 of the Massachusetts Consumer Protection Act (“MCPA”) confers standing to any person “who engages in the conduct of any trade or commerce . . . .” Mass. Gen. Laws. ch. 93A, § 11. Section 9, in turn, confers standing to any person “other than a person entitled to bring action under section eleven.” Mass. Gen. Laws. ch. 93A, § 9. Whether the TPPs bring their claims under Section 9 or 11 matters because Massachusetts courts apply the Illinois Brick indirect-purchaser rule to Section 11, but not to Section 9. See Ciardi v. F. Hoffmann-La Roche, Ltd., 762 N.E.2d 303, 308, 311 (Mass. 2002) (noting that the “the rule of law established in Illinois Brick” applies to the Massachusetts Antitrust Act, and that Section 11 of the MCPA “includes a specific provision that in any action brought under that section, the court shall be guided in its interpretation of unfair methods of competition by the provisions of the Antitrust Act”); Aggrenox II, 2016 WL 4204478, at *8 (citations omitted) (same).

         Sections 9 and 11 have been construed by many courts as binary - the former conferring standing to consumers and the latter conferring standing to businesses. See, e.g., Cont'l Ins. Co. v. Bahnan, 216 F.3d 150, 156 (1st Cir. 2000) (“[S]ection 11 affords no relief to consumers and, conversely, section 9 affords no relief to persons engaged in trade or commerce.”); Aggrenox II, 2016 WL 4204478, at *8 (“[T]hose provisions are naturally construed to make section nine exclusively applicable to consumers and section eleven exclusively applicable to business entities.”). At least one court, alternatively, has held that non-profit union benefit funds could bring claims under section 9 of the MCPA because they were “not motivated by the desire to make money from the drugs and were acting within their core mission.” In re Pharm. Indus. Average Wholesale Price Litig., 491 F.Supp.2d 20, 82 (D. Mass. 2007), aff'd on other grounds by, 582 F.3d 156 (1st Cir. 2009); see also Frullo v. Landenberger, 814 N.E.2d 1105, 1112 (Mass. App. Ct. 2004) (“Thus, any transaction in which the plaintiff is motivated by business considerations gives rise to claims only under the statute's business section.”). This Court concludes that the TPPs have failed to plead a claim for relief under Section 9 of the MCPA because, even if some or all of the TPPs are nonprofits, they are “motivated by business considerations” nonetheless. See Frullo, 814 N.E.2d at 1112. Accordingly, the TPPs do not have standing to bring claims under the MCPA and those claims are dismissed.

         Idaho, Missouri, and Montana.

         Defendants challenge the EPPs' standing to bring claims under the antitrust and consumer protection laws of Missouri and Montana, as well as the EPPs' claims under Idaho antitrust law. Defs.' Renewed Mot. to Dismiss 63-64. The EPPs no longer press these claims, so they are dismissed. See EPP State Law Claims Chart 2.

         Puerto Rico.

         This Court joins the majority of courts in concluding that the EPPs do not have standing to bring antitrust claims under Puerto Rico law. See, e.g., Solodyn I, 2015 WL 5458570, at *15; In re Aggrenox Antitrust Litig., 94 F.Supp.3d 224, 252 (D. Conn. 2015) (“Aggrenox I”); In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F.Supp.2d 1179, 1188 (N.D. Cal. 2009) (“TFT-LCD II”); Nexium I, 968 F.Supp.2d at 409-10. Puerto Rico has not passed an Illinois Brick-repealer statute, and its antitrust law is interpreted in lockstep with the parallel federal law. Aggrenox I, 94 F.Supp.3d at 252 (quoting Caribe BMW, Inc. v. Bayerische Motoren Werke Aktiengesellschaft, 19 F.3d 745, 754 (1st Cir. 1994)). Accordingly, the Court dismisses the EPPs' claims under Puerto Rico antitrust law.

         Rhode Island.

         Defendants argue that the EPPs do not have standing to bring their antitrust or consumer protection claims under Rhode Island law. Defs.' Renewed Mot. to Dismiss 64-65. With respect to the Rhode Island antitrust claim, the General Assembly passed an Illinois Brick-repealer statute, effective July 15, 2013, which expressly conveys standing to indirect purchasers. R.I. Gen. Laws § 6-36-7(d). The Court holds that the statute is “presumed to apply only prospectively, absent evidence of legislative intent to the contrary.” Solodyn I, 2015 WL 5458570, at *15 (quoting Niaspan, 42 F.Supp.3d at 759; citing Hydro-Mfg., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 954 (R.I. 1994)). Therefore, the EPPs' recovery under the Rhode Island Antitrust Act is limited to damages incurred after July 15, 2013.

         Defendants also challenge the TPPs' standing to bring claims under the Rhode Island Deceptive Trade Practices Act because, Defendants say, the TPPs are not consumers as defined by the statute. Defs.' Renewed Mot. to Dismiss 65. The statute provides that “[a]ny person who purchases or leases goods or services primarily for personal, family, or household purposes” may bring a suit for damages. R.I. Gen. Laws § 6-13.1-5.2. The statute defines “person” broadly to include “natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entity.” R.I. Gen. Laws § 6-13.1-1. The TPPs do not allege that they have purchased or provided reimbursement for the drugs at issue “primarily for [their] personal, family, or household purposes”, and accordingly, they do not have standing to bring claims under the Rhode Island Deceptive Trade Practices Act. See ERI Max Entertainment, Inc. v. Streisand, 690 A.2d 1351, 1354 (R.I. 1997)(holding that a video store did not having standing to bring a claim under the Rhode Island Deceptive Trade Practices Act because it plainly was not “[a]ny person who purchases or leases goods or services primarily for personal, family, or household purposes.”) (internal citation omitted). Accordingly, the Court dismisses claims under the Rhode Island Deceptive Trade Practices Act for lack of standing.

         Utah.

         Utah's Illinois Brick-repealer law permits only “[a] person who is a citizen of this state or a resident of” Utah to bring an antitrust-damages claim. See Utah Code Ann. § 76-10- 3109. The EPPs have failed to allege that any of its named class members are citizens or residents of Utah, and thus, the Court dismisses any claims brought under the antitrust laws of Utah. See Lipitor, 336 F.Supp.3d at 419 (requiring at least one named plaintiff be a resident or citizen of Utah to bring a claim under Utah antitrust law) (citing In re Opana ER Antitrust Litig., 162 F.Supp.3d 704, 725 (N.D. Ill. 2016); Aggrenox I, 94 F.Supp.3d at 251-52; Niaspan, 42 F.Supp.3d at 759-60; Nexium I, 968 F.Supp.2d at 410; In Re Magnesium Oxide Antitrust Litig., No. 10-5943, 2011 WL 5008090, at *8 n.10 (D.N.J. Oct. 20, 2011)).

         b. Antitrust Claims[17]

         Defendants argue that the EPPs' antitrust claims should be dismissed. Defs.' Renewed Mot. to Dismiss 65-67. First, Defendants argue that four states - Arizona, Hawaii, Nevada, and Utah - have pre-filing notice requirements with which the EPPs failed to comply. Id. at 65. The EPPs counter that dismissal for failure to comply with pre-suit notice requirements to the Attorneys General of these states would be inconsistent with the remedial purpose of the statutes. EPPs' Opp'n to Renewed Mot. to Dismiss 21. Moreover, they say, these state law requirements are procedural and, thus, preempted by federal procedural rules under Shady Grove. Id. at 21-22.

         The Court concludes that Rule 23 is not so broad as to preempt these state statutory notice provisions. These notice provisions create a prerequisite for filing an antitrust lawsuit under the states' laws; they do not create requirements for maintaining a class action. See Shady Grove, 559 U.S. at 399 (law at question was preempted because it “attempt[ed] to answer the same question” as Rule 23). The state notice provisions in question do “not seek to displace the Federal Rules or have [Rule 23] cease to function.” Godin, 629 F.3d at 88. Moreover, “to decline to apply these laws in federal court would encourage forum shopping and the inequitable administration of laws.” In re Asacol Antitrust Litig., No. 15-CV-12730-DJC, 2016 WL 4083333, at *15 (D. Mass. July 20, 2016) (“Asacol II”) (citing Godin, 629 F.3d at 92). For these reasons, the Court dismisses the antitrust claims under the laws of Arizona, Hawaii, and Nevada.[18]

         Second, Defendants argue the EPPs failed to allege intrastate conduct as required by the antitrust laws of the District of Columbia, Hawaii, Massachusetts, Mississippi, Nevada, New York, Oregon, Tennessee, and West Virginia. Defs.' Renewed Mot. to Dismiss 66. This Court joins the majority of courts in concluding that the EPPs have sufficiently pled intrastate activity where they allege nationwide antitrust violations, the antitrust impact of which was felt within each state. See, e.g., Aggrenox I, 94 F.Supp.3d at 253 (“it is not obvious why the intra state effect of anticompetitive conduct would not be reached by the cited statutes merely because inter state conduct predominates”); Solodyn I, 2015 WL 5458570, at *16 (holding that allegations of nationwide antitrust violation that results in increased prices paid within each state are sufficient to allege intrastate commerce (citing In re Digital Music Antitrust Litig., 812 F.Supp.2d 390, 407-08 (S.D.N.Y. 2011)(“Digital Music”))); Suboxone, 64 F.Supp.3d at 698-99; Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F.Supp.2d 380, 393-402 (E.D. Pa. 2010) (“Wellbutrin SR”).

         Third, Defendants argue that the EPPs' monopolization claims under the state laws of Kansas, New York, and Tennessee are premised on Warner Chilcott's unilateral conduct, and thus, do not satisfy the concerted action required by those states' laws. Defs.' Renewed Mot. to Dismiss 66-67. They contend the EPPs' claims are not cognizable under California law for a similar reason. Id. The First Claim for Relief in the EPPs' Complaint alleges monopolization and a monopolistic scheme under state law against Warner Chilcott. EPP Compl. ¶¶ 338-45. Specifically, it alleges that “[t]hrough the overarching anticompetitive scheme, as alleged extensively [in the Complaint], Warner Chilcott willfully maintained its monopoly power . . . using restrictive or exclusionary conduct” and injured the plaintiffs as a result. Id. ¶ 340. Among other things, the EPPs allege that Defendants “knowingly, willfully, and wrongfully maintained their monopoly power and harmed competition” by committing fraud on the PTO, listing the patent in the Orange Book, filing sham lawsuits, entering into a reverse payment with Watson, and effectuating a product hop. Id. ¶ 342.

         The EPPs have alleged sufficient concerted action to plead a cause of action under the state antitrust laws of Kansas, New York, and Tennessee, insofar as they allege a reverse payment with Watson. Their monopolization claims may proceed only to the extent they are premised on this alleged reverse payment. See Lipitor, 336 F.Supp.3d at 421 (holding that the antitrust laws of Kansas, New York, and Tennessee require concerted action between parties, granting the defendants' motion to dismiss as it related to claims alleging unilateral conduct, and declining to dismiss claims alleging reverse payment agreements).

         For the reasons stated, the Court dismisses the EPPs' antitrust claims brought under the laws of Arizona, Hawaii, Illinois, Nevada, Puerto Rico, and Utah. The EPPs' antitrust claims under the laws of California, the District of Columbia, Florida, Iowa, Maine, Michigan, Minnesota, Mississippi, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Oregon, South Dakota, Tennessee, Vermont, West Virginia, and Wisconsin may proceed. The EPPs' antitrust claim under Rhode Island law may proceed with respect to damages incurred after July 15, 2013, and the EPPs' monopolization claims under Kansas, New York, and Tennessee law may proceed insofar as they allege a reverse payment with Watson.

         c. Consumer Protection and Deceptive Trade Practices Claims[19]

         Defendants move to dismiss the EPPs' consumer protection claims. See Defs.' Renewed Mot. to Dismiss 67; Defs.' Reply to Renewed Mot. to Dismiss 8, 23. First, Defendants challenge the EPPs' monopolization claim under two California statutes, arguing that (1) California's Cartwright Act does not recognize unilateral conduct, and (2) California's Unfair Competition Law “does not authorize awards of damages at law [. . . .]” Defs.' Renewed Mot. to Dismiss 66-67 (quoting In re Terazosin Hydrochloride Antitrust Litig., 160 F.Supp.2d 1365, 1379 (S.D. Fla. 2001) (“Terazosin”)). The EPPs assert their claim under the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq., and not under the Cartwright Act. See EPPs' Opp'n to Defs.' Renewed Mot. to Dismiss 25. While the parties agree that the California Unfair Competition Law does not allow for damages awards at law, even the case cited (out of context) by Defendants held that the end payors there had stated a claim for relief because the California Unfair Competition Law “explicitly provides that ‘[t]he court may make such orders or judgments . . . as may be necessary to restore to any person in interest any money . . . which may have been acquired by . . . unfair competition.'” Terazosin, 160 F.Supp.2d at 1379 (quoting Cal. Bus. & Prof. Code § 17203). Accordingly, Defendants' Renewed Motion to Dismiss is denied as to the EPPs' claim for monetary relief under the California Unfair Competition Law.

         Second, Defendants argue that the EPPs have failed to comply with West Virginia's consumer protection law pre-filing notice requirement. Defs.' Renewed Mot. to Dismiss 67. For the reasons stated above with respect to certain of the EPPs' state law antitrust claims requiring pre-suit notice, the Court dismisses the EPPs' West Virginia consumer protection claim.

         Third, Defendants aver the EPPs did not allege intrastate conduct as required by the consumer protection laws in Florida, New Hampshire, and New York. Defs.' Renewed Mot to Dismiss 67; Defs.' Reply to Renewed Mot. to Dismiss 23-25.[20] Notably, the TPP class has a named TPP headquartered or with reimbursements in each of these states. See generally Appendix A, EPPs' Mem. in Opp'n to Defs.' Renewed Mot. to Dismiss and Mot. for J. on the Pleadings, ECF No. 613-1. As stated above in the context of the EPPs' state law antitrust claims, the Court concludes that the EPPs sufficiently pled intrastate activity under the named consumer protection laws where they allege overcharge damages for purchases at supracompetitive prices, the impact of which was felt within each state. See, e.g., Flonase, 692 F.Supp.2d at 537-38 (Florida); Wellbutrin XL, 260 F.R.D. at 162 (Florida); Suboxone, 64 F.Supp.3d at 702 (holding that end-payor plaintiffs sufficiently pled intrastate conduct under New York's consumer protection law, N.Y. Gen. Bus. L. § 349, where they alleged overcharges occurred in the state); Solodyn I, 2015 WL 5458570, at *16 (holding that allegations of nationwide antitrust violation that results in increased prices paid within each state, including New Hampshire and New York, were sufficient to allege intrastate commerce (citing Digital Music, 812 F.Supp.2d at 407-08)). Accordingly, Defendants' renewed motion to dismiss the consumer protection claims under the laws of Florida, New Hampshire, and New York is denied.

         Fourth, Defendants contend that the EPPs cannot bring claims in nine states that limit actions to consumers: Iowa, Kansas, Maine, Missouri, Montana, North Carolina, Rhode Island, Utah, and Vermont. Defs.' Reply to Renewed Mot. to Dismiss 27-29. In light of the EPPs' Notice of Submission in Response to the Court's September 17, 2019 Order, see ECF No. 1231, the Court denies as moot Defendants' Renewed Motion to Dismiss with respect to the consumer protection claims under the laws of Iowa, Kansas, Maine, Missouri, Montana, North Carolina, Utah, and Vermont. With respect to Rhode Island, and as discussed above, the TPPs do not have standing under the Rhode Island consumer protection statute, and therefore, that claim is also dismissed.

         Fifth, Defendants argue that the EPPs have not alleged consumer deception or reliance as required by the consumer protection laws of Michigan, Nevada, New York, and Tennessee. Defs.' Renewed Mot. to Dismiss 68-69; see also Defs.' Mot. to Dismiss 156-58. They further argue that the consumer protection laws of the District of Columbia and New Mexico require Plaintiffs to allege and prove affirmative unconscionable conduct. Defs.' Renewed Mot. to Dismiss 68-69.

         Michigan.

         Michigan's consumer protection statute prohibits “[u]nfair, unconscionable, or deceptive methods, acts or practices, ” which includes “[c]harging the consumer a price that is grossly in excess of the price at which similar property or services are sold.” Mich. Comp. Laws Ann. § 445.903(1)(z). The EPPs allege overcharges caused by Defendants' anticompetitive conduct, and this squarely falls within the statute. See Solodyn I, 2015 WL 5458570, at *17 (holding that Michigan's consumer protection law covered the end-payor plaintiffs' reverse payment allegations). The Court denies Defendants' Renewed Motion to Dismiss with respect to Michigan's consumer protection statute.

         Nevada.

         Nevada's consumer protection statute provides that “[a] person engages in a ‘deceptive trade practice' when in the course of his or her business or occupation he or she knowingly . . . [v]iolates a state or federal statute or regulation relating to the sale or lease of goods or services.” Nev. Rev. Stat. § 598.0923(3). The EPPs plainly pled violations of state and federal law relating to the sale of goods. The Court joins the majority of courts in holding that the Nevada Deceptive Trade Practices Act does not require plaintiffs to plead consumer reliance. See In re Effexor Antitrust Litig., 337 F.Supp.3d 435, 464-65 (D.N.J. 2018) (“Effexor”) (citing In re Pharm. Indus. Average Wholesale Price Litig., 252 F.R.D. 83, 98 (D. Mass. 2008); In re Packaged Seafood Prods. Antitrust Litig., 242 F.Supp.3d 1033, 1080-81 (S.D. Cal. 2017) (“Packaged Seafood Prod.”)). Therefore, the Court denies Defendants' Renewed Motion to Dismiss with respect to the EPPs' claims predicated on the Nevada Deceptive Trade Practices Act.

         New York.

         New York's consumer protection statute provides that “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” N.Y. Gen. Bus. Law § 349(a). The EPPs again have alleged that they paid overcharges based on Defendants' alleged misconduct, and the Court is satisfied that this states a claim for relief under Section 349 of the New York General Business Law. See Effexor, 337 F.Supp.3d at 466 (holding that end-payor plaintiffs' stated claim for relief under N.Y. Gen. Bus. Law § 349(a) where they alleged defendants' anticompetitive conduct caused them to pay overcharges); In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F.Supp.2d 1109, 1128-29 (N.D. Cal. 2008) (“TFT-LCD I”)(same); In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 536 F.Supp.2d 1129, 1143-44 (N.D. Cal. 2008) (same). The Court denies Defendants' Renewed Motion to Dismiss with respect to New York's consumer protection statute.

         Tennessee.

         Tennessee's consumer protection statute sets forth a list of unfair and deceptive acts, followed by a catch-all provision that prohibits “[e]ngaging in any other act or practice which is deceptive to the consumer or to any other person.” Tenn. Code Ann. § 47-18-104(b)(27). After scouring the statute, the Court concludes that the EPPs' allegations fall only within this catch-all. However, the catch-all further states “that enforcement of this subdivision (b)(27) is vested exclusively in the office of the attorney general and reporter”, and accordingly, the Court dismisses the EPPs' consumer protection claim under Tennessee law. See Solodyn I, 2015 WL 5458570, at *17. Because the Tennessee consumer protection claim fail for this reason, the Court need not address Defendants' argument that the Tennessee consumer protection claim fails due to a state class action bar. See Defs.' Renewed Mot. to Dismiss 67.

         New Mexico.

         Defendants move to dismiss the EPPs' claims under the New Mexico Unfair Practices Act for failure to allege unconscionable conduct towards consumers, which Defendants say requires affirmative misconduct. Defs.' Renewed Mot. to Dismiss 68. The New Mexico Unfair Practices Act prohibits “[u]nfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce”. N.M. Stat. Ann. § 57-12-3. The statute further defines “unconscionable trade practice” as “an act or practice in connection with the sale . . . of any goods or services . . . that to a person's detriment . . . results in a gross disparity between the value received by a person and the price paid.” N.M. Stat. Ann. § 57-12-2(E). The Court concludes that the EPPs have sufficiently pled that Defendants' alleged anticompetitive conduct caused them to pay overcharges that constitute a “gross disparity” between the value paid and that received, and denies Defendants' Renewed Motion to Dismiss on this score accordingly. See Effexor, 337 F.Supp.3d at 465 (citing cases); TFT-LCD I, 586 F.Supp.2d at 1127. But see In re Graphics Processing Units Antirust Litig., 527 F.Supp.2d 1011, 1029-30 (N.D. Cal. 2007) (dismissing claims under the laws of the District of Columbia, Arkansas, Kansas, and New Mexico because “pleading unconscionability requires something more than merely alleging that the price of a product was unfairly high”).

         District of Columbia.

         The Court is similarly satisfied that the EPPs have stated a claim for relief under the District of Columbia's consumer protection statute. See TFT-LCD I, 586 F.Supp.2d at 1126 (holding that the District of Columbia's consumer protection statute is a “comprehensive statute designed to provide procedures and remedies for a broad spectrum of practices which injure consumers”, and thus, the plaintiffs could maintain a claim for price fixing (quoting Atwater v. District of Columbia Dep't of Consumer & Reg. Affairs, 566 A.2d 462, 465 (D.C. 1989))); see also In re New Motor Vehicles Canadian Export Antitrust Litig., 350 F.Supp.2d 160, 182-83 (D. Me. 2004) (“New Motor I”) (allowing an antitrust claim to proceed under the District of Columbia consumer protection statute). Moreover, the EPPs were not required to plead an affirmative unconscionable act to state a claim under the statute. See In re Processed Egg Prods. Antitrust Litig., 851 F.Supp.2d 867, 899 (E.D. Pa. 2012) (“Processed Egg Prods.”) (holding that, while “certain of the enumerated ‘unlawful trade practices' as defined by D.C. Code § 28-3904 may require the element of unconscionable conduct to be alleged, ” unconscionable conduct is not required to plead “a violation of the Antitrust Act to constitute an unlawful trade practice under” the District of Columbia's consumer protection statute); see also Packaged Seafood Prod., 242 F.Supp.3d at 1073 (same).

         Sixth, Defendants move to dismiss the EPPs consumer protection claims in Arizona, the District of Columbia, Idaho, Michigan, Nebraska, New Mexico, and New York for failure to plead that “deceitful conduct” occurred with a specific consumer transaction or with a direct consumer nexus. Defs.' Renewed Mot. to Dismiss 69. The Court joins the majority of courts in concluding that it is sufficient, under the consumer protection laws of Arizona, the District of Columbia, Idaho, [21] Michigan, Nebraska, New Mexico, and New York, to allege that a defendant's anticompetitive conduct of the sort alleged here caused end-payor plaintiffs to pay overcharges in the form of higher prices for brand drugs. See In re Remicade Antitrust Litig., 345 F.Supp.3d 566, 588 (E.D. Pa. 2018) (holding that the indirect purchaser plaintiffs had sufficiently pled a cause of action “under the ‘substantial nexus' requirement of California, New York and North Carolina” where they alleged that the defendants' “exclusionary scheme resulted in [the drug and related products] being sold at artificially inflated prices and caused overcharges in those states”); Suboxone, 64 F.Supp.3d at 702 (holding that similar allegations had set forth a viable claim under New York law); In re DDAVP Indirect Purchaser Antitrust Litig., 903 F.Supp.2d 198, 207, 219, 221 (S.D.N.Y. 2012) (holding that indirect-purchaser plaintiffs plausibly alleged a cause of action under the consumer protection laws of Arizona, Idaho, Michigan, New Mexico, and New York in a suit alleging Walker Process fraud, sham litigation, and fraudulent listing in the Orange Book, among other things); New Motor I, 350 F.Supp.2d at 184-85 (holding that plaintiff-consumers stated a claim for relief under the Idaho Consumer Protection Act where they alleged antitrust violations, the statute instructs courts to be deferential to the Federal Trade Commission Act, and the Idaho Supreme Court has directed courts to construe the ICPA liberally in light of the legislative intent “to deter deceptive or unfair trade practices and to provide relief for consumers exposed to proscribed practices” (quoting State ex rel. Lance v. Hobby Horse Ranch Tractor and Equip. Co., 929 P.2d 741, 743 (Idaho 1996)); Lipitor, 336 F.Supp.3d at 423 (holding that end-payor plaintiffs in a reverse payment suit adequately pled a cause of action under the Nebraska Consumer Protection Act where they alleged that the anticompetitive scheme “had an indirect impact on Nebraska consumers” and therefore, “the scheme impacted the public interest”); Processed Egg Prods., 851 F.Supp.2d at 897-98 (holding that indirect purchaser plaintiffs had alleged a claim under the District of Columbia Consumer Protection Act); In re Chocolate Confectionary Antitrust Litig., 602 F.Supp.2d 538, 583-84 (M.D. Pa. 2009) (stating that the District of Columbia Consumer Protection Act “subsumes a Sherman Act claim and creates an indirect purchaser cause of action for conspiratorial price fixing regardless of whether defendants have engaged in deceptive conduct”).

         For the reasons stated above, the Court dismisses the EPPs' consumer protection claims under the states of Illinois, Massachusetts, Rhode Island, Tennessee, and West Virginia. The EPPs' consumer protection claims under the laws of Arizona, California, the District of Columbia, Florida, Hawaii, Idaho, Michigan, Nebraska, Nevada, New Hampshire, New Mexico, and New York may proceed.

         d. Unjust Enrichment Claims[22]

         The EPPs bring unjust enrichment claims under the laws of every state except for Indiana, Ohio, and Puerto Rico. See EPP State Law Claims Chart n.1. Defendants mount challenges to each claim. See generally Defs.' Mot. to Dismiss 165-75.

         First, Defendants argue that the EPPs cannot assert unjust enrichment claims in states in which Illinois Brick-repealer statutes have not been passed, viz., Alabama, Alaska, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, New Jersey, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah, and Virginia. See Appendix 3 at viii-ix, Defs.' Mem. in Support of Mot. to Dismiss, ECF No. 198. The Court agrees and joins other courts in holding “that indirect purchasers may not bring state claims for unjust enrichment if they otherwise would be barred from bringing a claim under that state's antitrust and consumer protection statutes, absent a showing that the common law of the state in question expressly allows for such recovery.” Solodyn I, 2015 WL 5458570, at *18 (quoting Niaspan, 42 F.Supp.3d at 763); see also Wellbutrin SR, 737 F.Supp.2d at 425. Accordingly, the unjust enrichment claims under the laws of Alabama, Alaska, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, New Jersey, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, and Virginia are dismissed. Rhode Island now has an Illinois Brick-repealer statute, and thus, the unjust enrichment claim under Rhode Island law is no longer contrary to the public policy of that state.

         Second, Defendants argue that neither California nor Mississippi recognize unjust enrichment as an independent cause of action. Defs.' Mot. to Dismiss 166.[23] With respect to California, both parties are correct. As the Ninth Circuit recently noted, “some California courts do not recognize a claim for unjust enrichment, ” 1617 Westcliff LLC v. Wells Fargo Bank N.A., 686 Fed.Appx. 411, 415 n.6 (9th Cir. 2017) (citing Durell v. Sharp Healthcare, 183 Cal.App.4th 1350 (2010)), but “others, including [the Ninth Circuit] treat it as an equitable cause of action with restitution as a remedy.” Id. (citing Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1070 (9th Cir. 2014); Ghirardo v. Antonioli, 924 P.2d 996, 1003 (Cal. 1996) (“[A]n individual may be required to make restitution if he is unjustly enriched at the expense of another.”)). Because California law is unclear on this issue, and there is a California Supreme Court case recognizing the cause of action, this Court joins several other district courts in concluding that there is no “settled basis on which to dismiss the end payors' unjust enrichment claim.” Solodyn I, 2015 WL 5458570, at *20 (citing Processed Egg Prods., 851 F.Supp.2d at 913 (denying defendants' motion to dismiss California unjust enrichment claim because “California courts have not uniformly or definitively barred an independent cause of action for unjust enrichment”)).

         The Court also rejects Defendants' argument that Mississippi law does not recognize an independent cause of action for unjust enrichment. A simple search yields many cases out of the Mississippi Supreme and Appellate Courts within the past decade recognizing unjust enrichment as a cause of action under Mississippi law. See, e.g., Willis v. Rehab Solutions, PLLC, 82 So.3d 583, 588 (Miss. 2012) (“Unjust enrichment applies in situations where no legal contract exists, and the person charged is in possession of money or property which, in good conscience and justice, he or she should not be permitted to retain . . . .”); Carlson v. Brabham, 199 So.3d 735, 744 (Miss. App. Ct. 2016) (“Unjust enrichment is defined as money paid to another by mistake of fact.”) (internal citations omitted); Triangle Constr. Co. v. Fouche & Assocs., Inc., 218 So.3d 1180, 1187 (Miss. Ct. App. 2017) (“To collect under an unjust enrichment or quasi-contract theory, the claimant must show there is no legal contract but . . . the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.” (quoting Franklin v. Franklin ex rel. Phillips, 858 So.2d 110, 121 (Miss. 2003) (citations and quotations omitted))). Accordingly, the Court denies Defendants' motion to dismiss the claims for unjust enrichment under California and Mississippi law.

         Third, Defendants contend that the EPPs have improperly dressed up their antitrust violations as unjust enrichment claims. Defs.' Mot. to Dismiss 167-69. They say the EPPs' unjust enrichment claims must fail (1) where there is an adequate remedy at law, (2) where they serve as an end-run to Illinois Brick, and (3) under the laws of states in which the EPPs assert no claims other than unjust enrichment. Id. As stated above, the Court agrees with Defendants that the EPPs may not use unjust enrichment claims as an end-run to Illinois Brick. And while it is generally true that one cannot recover under an unjust enrichment theory where a remedy at law is available, the EPPs are entitled to plead alternative theories. See Solodyn I, 2015 WL 5458570, at *19 (holding that end-payor plaintiffs could “plead in the alternative equitable claims along with legal claims”). The EPPs may also proceed with their unjust enrichment claims under the laws of the states in which they assert no other claims, so long as the state has passed an Illinois Brick-repealer statute signaling that such a cause of action would not violate the state's public policy. See In re Cardizem CD Antitrust Litig., 105 F.Supp.2d 618, 669 (E.D. Mich. 2000) (“Cardizem”). In rejecting a similar argument, one court noted that such an argument “confuses Plaintiffs' right to recover an equitable remedy under a common law claim based upon principles of unjust enrichment with its right to recover a remedy at law for an alleged violation of a state's antitrust laws”. Id. Indeed, “courts often award equitable remedies under common law claims for unjust enrichment in circumstances where” other state law claims fail. Id.

         Fourth, Defendants move to dismiss the EPPs' unjust enrichment claims on the basis that they have failed to allege a special relationship between the EPPs and Defendants. Defs.' Mot. to Dismiss 169-70. Specifically, Defendants argue that the EPPs failed to allege privity (or something similar), as required by five states' unjust enrichment laws, and failed to allege a relationship with Defendants leading to a direct benefit, as required under the laws of twenty-four states. Id. at 170-75. Because the EPPs' unjust enrichment claims under the laws of Alabama, Florida, Georgia, Idaho, Illinois, Maryland, Massachusetts, New Jersey, Pennsylvania, and South Carolina are dismissed for reasons set forth above, the Court does not address this argument with respect to these states' laws.

         Upon review of state appellate court and federal district court cases interpreting state law, the Court concludes that the following states do not require a plaintiff to plead the conferral of a direct benefit in order to state a claim for unjust enrichment: Arizona, District of Columbia, Kansas, Michigan, North Carolina, West Virginia, and Wisconsin. See Solodyn I, 2015 WL 5458570, at *18 (citing Processed Egg Prods., 851 F.Supp.2d at 927-35 (addressing Kansas, North Carolina, Utah, and West Virginia law)); Cardizem, 105 F.Supp.2d at 671 (addressing Michigan and North Carolina law); In re Lidoderm Antitrust Litig., 103 F.Supp.3d 1155, 1176 (N.D. Cal. 2015) (“Lidoderm”) (addressing Arizona, District of Columbia, Kansas, and North Carolina law); In re Auto. Parts Antitrust Litig., 29 F.Supp.3d 982, 1028 (E.D. Mich. 2014) (Wisconsin); Suboxone, 64 F.Supp.3d at 710 (Wisconsin).

         With respect to Rhode Island, Washington, and Wyoming, the Court similarly concludes that the laws of these states do not require a direct benefit be conferred in order for a party to plead a claim for unjust enrichment. The cases cited by Defendants do not convince the Court otherwise. See Defs.' Mot. to Dismiss 174. In the Rhode Island cases cited by Defendants, the question was whether any benefit was conferred, not whether it was conferred indirectly. See R & B Elec. Co., Inc. v. Amco Constr. Co., Inc., 471 A.2d 1351, 1356 (R.I. 1984) (Shea, J.) (holding that defendants were not liable under an unjust enrichment theory because they were unable to retain the benefit conferred and thus, they had not been unjustly enriched); Alessi v. Bowen Court Condo., No. 03-0235, 2010 WL 897246, at *4 (R.I. Super. Ct. Mar. 10, 2010) (concluding, that the defendant “did not hold a present interest in the property at the time of the [p]laintiff's purchase” and therefore, “a benefit arguably was not conferred upon and appreciated by the [d]efendants individually”). And thus, the Court joins other courts in concluding that the EPPs have a well pled claim for unjust enrichment under Rhode Island law. See In re Auto. Parts Antitrust Litig., 50 F.Supp.3d 869, 898 (E.D. Mich. 2014) (citing In re TFT-LCD (Flat Panel) Antitrust Litig., M 07-1827 SI, 2011 WL 4501223 (N.D. Cal. Sept. 28, 2011) (“TFT-LCD IV”) (addressing unjust enrichment under Rhode Island law)).

         The Court is further unconvinced that a direct benefit is required under Washington law. In support of their argument, Defendants cite a single unpublished Washington Court of Appeals case that provides the alternate holding that recovery under an unjust enrichment theory was unavailable because the plaintiff there could enforce a promissory note and thus had a remedy at law. Defs.' Mot. to Dismiss 174 (citing Keil v. Scholten, 110 Wash.App. 1035 (2002)).

         With respect to Wyoming law, Defendants similarly cite a single case, in which that court found a trucking company not liable for, among other things, unjust enrichment. See Defs.' Mot. to Dismiss 175; see also Boyce v. Freeman, 39 P.3d 1062, 1065-66 (Wyo. 2002)). In Boyce, the Supreme Court of Wyoming affirmed judgment for the defendant trucking company, noting that none of the elements of an unjust enrichment claim had been satisfied where the seller never received payment for the truck it conveyed to the trucking company's employee. Boyce, 39 P.3d at 1064-65. In support of its argument that Wyoming law requires the direct conferral of a benefit to support an unjust enrichment claim, Defendants latch on to the court's statement that the trucking company “received no direct benefit from this action, had no knowledge that [the seller] expected it to provide compensation for the pickup truck, and engaged in no conduct inducing” the seller to supply the pickup to the employee. Id. at 1066 (emphasis added). But a closer look reveals that, in reality, “there was no true benefit bestowed on” the trucking company, id. at 1065 (emphasis added), and thus, the Court is not convinced that the Wyoming Supreme Court would not recognize a claim for unjust enrichment where a true, but indirect, benefit is bestowed on a defendant.

         Because these are Defendants' best cases under Washington and Wyoming law, and the Court is not convinced they stand for the proposition Defendants posit, the Court declines to dismiss the EPPs' unjust enrichment claims under the laws of Washington and Wyoming for failure to plead a conferral of a direct benefit. See Solodyn I, 2015 WL 5458570, at *18 (noting that district courts have declined to dismiss unjust enrichment claims in certain states where the “states' unjust enrichment laws do not necessarily require a plaintiff to plead a conferral of a direct benefit”).

         Under Maine, New York, and North Dakota law, however, a plaintiff must plead the conferral of a direct benefit in order to state a claim of unjust enrichment and, accordingly, the EPPs' unjust enrichment claims under these laws must be dismissed. See Solodyn I, 2015 WL 5458570, at *18 (citing Aftermarket Filters, 2010 WL 1416259, at *3 (Maine); Lidoderm, 103 F.Supp.3d at 1176, 1179 (New York and North Dakota) (citing omitted).

         For the reasons set forth above, the Court dismisses the EPPs' unjust enrichment claims under the laws of Alabama, Alaska, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Missouri, Montana, New Jersey, New York, North Dakota, Oklahoma, Pennsylvania, South Carolina, Texas, Utah, and Virginia. The EPPs' claims for unjust enrichment under the laws of Arizona, Arkansas, California, the District of Columbia, Hawaii, Iowa, Kansas, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Washington, West Virginia, Wisconsin, and Wyoming may proceed.

         B. Daubert Motions

         Before taking up the EPPs' Motion for Class Certification, the Court must address the parties' challenges to the expert analysis underpinning their claims and defenses. In connection with their Motion for Class Certification, the EPPs move to exclude the opinions and testimony of Dr. James Hughes, Dr. Bruce Strombom, and Timothy Kosty. In connection with their opposition to the Motion for Class Certification, Defendants have moved to exclude Dr. Gary French, Laura Craft, Myron Winkelman, and Eric Miller. The Court addresses the motions in seriatim.

         Rule 702 of the Federal Rules of Evidence sets forth the criteria a party must satisfy in order to proffer ...


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