Keith et al

Filing 65

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/27/2016:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NICOLE KEITH, RYAN KEITH, JACK R.
DODDS, JR., CRYSTALINA R. DODDS,
MICHELLE COOPER, and SHANNON
MINERICH, on behalf of themselves and
all others similarly situated,

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Plaintiffs,
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v.
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FERRING PHARMACEUTICALS, INC., )
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Defendant.
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Case No. 15 C 10381

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On March 9, 2016, Plaintiffs Nicole Keith, Ryan Keith, Jack R. Dodds, Jr., Crystalina R.
Dodds, Michelle Cooper, and Shannon Minerich (“Plaintiffs”), on behalf of themselves and all
others similarly situated, brought the present eight-count First Amended Class Action Complaint
against Ferring Pharmaceuticals, Inc. (“Defendant”) alleging claims for breach of express
warranty (Count I), breach of the implied warranty of merchantability (Count II), and unjust
enrichment (Count III), along with violations of the Illinois Consumer Fraud and Deceptive
Business Practices Act (Count IV), the Texas Deceptive Trade Practices Consumer Protection
Act (Count V), the Michigan Consumer Protection Act (Count VI), the South Dakota Deceptive
Trade Practices and Consumer Protection Act (Count VII), and the Magnuson-Moss Warranty
Act (Count VIII).
Before the Court are Defendant’s (1) motion to dismiss brought pursuant to Federal Rules
of Civil Procedure 9(b) and 12(b)(6), and (2) motion to strike the class allegations under Rule 23.

For the following reasons, the Court grants in part – with and without prejudice – and denies in
part Defendant’s motion to dismiss. Further, the Court grants Plaintiffs’ voluntarily dismissal of
the Michigan Consumer Protection Act claim and Plaintiffs’ Illinois breach of implied warranty
claim without prejudice. The Court grants Plaintiffs leave to file a Second Amended Class
Action Complaint, as discussed in detail below. See Runnion v. Girl Scouts of Greater Chicago
& Nw. Indiana, 786 F.3d 510, 519 (7th Cir. 2015) (“a plaintiff whose original complaint has
been dismissed under Rule 12(b)(6) should be given at least one opportunity to try to amend her
complaint before the entire action is dismissed.”). Plaintiffs’ Second Amended Class Action
Complaint is due on or before October 14, 2016. The Court denies Defendant’s motion to strike
Plaintiffs’ amended class allegations.
LEGAL STANDARDS
I.

Federal Rule of Civil Procedure 12(b)(6)
“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the

viability of a complaint by arguing that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). The
relevant question at the motion to dismiss stage is not whether the plaintiff will ultimately
prevail on the merits, but whether the complaint is sufficient to cross the federal pleading
threshold. See Skinner v. Switzer, 562 U.S. 521, 529-30, 131 S.Ct. 1289, 179 L.Ed.2d 233
(2011). Pursuant to Rule 8(a)(2), a complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under the federal
notice pleading standards, a plaintiff’s “factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S. Ct.

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1955, 167 L. Ed. 2d 929 (2007). Put differently, a “complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Twombly,
550 U.S. at 570). In determining the sufficiency of a complaint under the plausibility standard,
courts must “accept all well-pleaded facts as true and draw reasonable inferences in the
plaintiffs’ favor.” Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). It is wellsettled that “a plaintiff ordinarily need not anticipate and attempt to plead around affirmative
defenses.” Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016).
II.

Federal Rule of Civil Procedure 9(b)
In pleading fraud in federal court, Rule 9(b) imposes a higher pleading standard than that

required under Rule 8(a)(2). See Camasta, 761 F.3d at 736; Pirelli Armstrong Tire Corp.
Retiree Med. Benefits Trust v. Walgreen Co., 631 F.3d 436, 446 (7th Cir. 2011). Specifically,
“plaintiffs must plead the ‘who, what, when, where, and how: the first paragraph of any
newspaper story’ of the alleged fraud.” Rocha v. Rudd, 826 F.3d 905, 911 (7th Cir. 2016)
(citation omitted). In other words, the “requirement of pleading fraud with particularity includes
pleading facts that make the allegation of fraud plausible,” therefore, the “complaint must state
‘the identity of the person making the misrepresentation, the time, place, and content of the
misrepresentation, and the method by which the misrepresentation was communicated to the
plaintiff.’” Grenadyor v. Ukrainian Vill. Pharmacy, Inc., 772 F.3d 1102, 1106 (7th Cir. 2014)
(citations omitted); see also Rocha, 826 F.3d at 911. Allegations based on information and
belief will not suffice under Rule 9(b) unless “(1) the facts constituting the fraud are not
accessible to the plaintiff and (2) the plaintiff provides ‘the grounds for his suspicions.’”

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Grenadyor, 772 F.3d at 1108 (citations omitted); see also Bogina v. Medline Indus., Inc., 809
F.3d 365, 370 (7th Cir. 2016).
BACKGROUND
In their First Amended Complaint, Plaintiffs allege that Defendant manufactures,
warrants, advertises, and sells Bravelle©, which is the brand name version of the generic drug
urofollitropin, designed to treat infertility in women. (R. 24, First Am. Compl. ¶¶ 1, 24.) In
particular, Bravelle stimulates egg maturation and multiple follicular development in women
who are able to produce and release eggs. (Id. ¶¶ 1, 20.) Bravelle is commonly used in the
course of assisted reproductive technology, such as in vitro fertilization (“IVF”). (Id. ¶¶ 1, 20.)
On October 13, 2015, Defendant voluntarily recalled all Bravelle that it sold in the United States
between March 2014 and October 2015 (the “Recalled Lots”) after Defendant’s internal quality
monitoring revealed that certain lots of Bravelle did not meet potency specifications. (Id. ¶¶ 2,
28.) Specifically, Defendant’s stability testing showed a decreased potency in an ingredient in
Bravelle, namely, the follicle stimulating hormone (“FSH”). (Id. ¶¶ 4, 22, 23.) Plaintiffs assert
that this decreased potency resulted in a decreased therapeutic effect and created the potential for
unnecessary over-exposure of patients. (Id. ¶ 4.)
Further, Plaintiffs allege that Defendant recalled unsold batches of Bravelle directly from
pharmacies and sought to recall the Bravelle already sold to consumers by sending letters
directly to the consumers. (Id. ¶ 29.) According to Plaintiffs, individual patients who purchased
Bravelle are able to contact Defendant and obtain a reimbursement solely for the price of the
Bravelle that they purchased once Defendant determines that the Bravelle purchased was from
one of the Recalled Lots. (Id.) More specifically, Plaintiffs assert that under the reimbursement

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plan, Defendant is offering reimbursement for the consumers’ out-of-pocket expenditures to
purchase Bravelle, but not for any of the other costs related to the fertility treatments. (Id.)
Plaintiffs maintain that before manufacturing, warranting, advertising, and/or selling the
Recalled Lots of Bravelle, Defendant failed to take appropriate steps to ensure that the Recalled
Lots were effective for their intended use and would provide the reproductive health benefits
Defendant claimed. (Id. ¶ 5.) Furthermore, Plaintiffs allege that Defendant knew or should have
known that the Recalled Lots were not suitable for use and were sub-potent due to the decreased
FSH potency. (Id.) Plaintiffs and the putative classes seek relief for damages that the Recalled
Lots’ failure to meet potency specifications cause, including the out-of-pocket expenditures to
purchase Bravelle, the payments they made to medical providers for fertility treatments utilizing
Bravelle, and any associated costs. (Id. ¶ 6.)
Also, Plaintiffs allege that all of the Bravelle they purchased was part of the Recalled
Lots and that they were damaged as a direct and proximate result of their Bravelle purchases
contained in the Recalled Lots. (Id. ¶ 11.) Plaintiffs contend that they would not have purchased
Bravelle had they known prior to their purchases that the Bravelle they bought suffered from
sub-potency issues, or even that it had the potential to suffer from sub-potency issues, nor would
they have paid the costs associated with the related medical treatment of which Bravelle was an
integral part. (Id. ¶¶ 12, 26, 61.)
Plaintiffs bring this action on behalf of themselves and all persons in the United
States who purchased Bravelle contained in the Recalled Lots. (Id. ¶¶ 5, 35.) In addition, or in
the alternative, Plaintiffs bring this lawsuit on behalf of a multi-state class, which consists of
individuals or entities in Illinois, California, Florida, Massachusetts, Michigan, Minnesota,

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Missouri, New Jersey, New York, and Washington, who purchased Bravelle contained in the
Recalled Lots. (Id. ¶ 26.) Also, in addition or in the alternative, Plaintiffs allege claims on
behalf of an Illinois class, a Michigan class, a Texas class, and a South Dakota class. (Id. ¶¶ 37,
38, 39, 40.)
Allegations regarding the named Plaintiffs include that Nicole Keith and Ryan Keith are
married and reside in Lansing, Illinois, and that in July 2015, Nicole Keith’s sister-in-law,
Christina Dorris, began an IVF cycle that included injections of Bravelle. (Id. ¶ 7.) Embryos
retrieved from Ms. Dorris at the end of the cycle were then implanted into Mrs. Keith. (Id.)
During the course of this fertility treatment, Mr. and Mrs. Keith paid approximately $20,000 to
$25,000 in out-of-pocket costs related to the IVF process. (Id.) Ultimately, the IVF treatment
was not successful and Mrs. Keith did not become pregnant. (Id.) Due to the significant costs
involved in the treatment, Mr. and Mrs. Keith cannot afford to begin another cycle of IVF
treatment. (Id.)
Named Plaintiffs Jack R. Dodds, Jr. and Crystalina R. Dodds are married and reside in
Magnolia, Texas. (Id. ¶ 8.) The Dodds made two purchases of Bravelle during the recall period
– the first in April 2014 and the second in July 2014. (Id.) Mrs. Dodds used the Bravelle for a
total of two cycles of ovarian stimulation and egg retrieval. (Id.) The Dodds spent over $3,000
on their purchases of Bravelle and in excess of $35,000 in related out-of-pocket costs, including
anesthesiologist fees, medical facility procedure fees, and pre-implantation fees. (Id.) After two
treatment cycles with Bravelle, only three unusable eggs were retrieved from Mrs. Dodds’
ovaries. (Id.) In sum, the fertility treatments were not successful and Mrs. Dodds did not
become pregnant. (Id.) Because of the significant costs involved in the treatment, the Dodds

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cannot continue with IVF treatments at this time. (Id.)
Another named Plaintiff, Michelle Cooper, resides in Gross Pointe, Michigan. (Id. ¶ 9.)
Ms. Cooper paid approximately $3,000 for Bravelle to use as part of her treatment leading up to
Intrauterine Insemination (“IUI”). (Id.) Plaintiffs allege that Ms. Cooper incurred an additional
$1,000 in related expenses. (Id.) The Bravelle purchased by Ms. Cooper came from lot number
K 11813A-2, a lot that Defendant’s own internal testing confirmed as sub-potent. (Id.) Ms.
Cooper did not become pregnant. (Id.)
Named Plaintiff Shannon Minerich resides in Marmarth, North Dakota. (Id. ¶ 10.) Ms.
Minerich purchased one cycle of Bravelle in November 2014 in connection with undergoing an
IVF cycle and paid approximately $870 out-of-pocket for the Bravelle and approximately
$10,000 in related costs. (Id.) Plaintiffs allege that Ms. Minerich only retrieved two usable
eggs. (Id.) Ms. Minerich’s fertility treatment was unsuccessful and she did not become
pregnant. (Id.) At the time Ms. Minerich purchased the Bravelle contained in the Recalled Lots
and underwent her IVF cycle in November 2014, she was a resident of South Dakota. (Id.)
ANALYSIS
I.

General Arguments
In its motion to dismiss, Defendant first sets forth general arguments concerning the

sufficiency and plausibility of Plaintiffs’ allegations as they relate to all or part of the claims in
this lawsuit. These arguments include: (1) Plaintiffs do not plausibly allege that all recalled
Bravelle was out of specification (“OOS”)1 (all counts); (2) Plaintiffs do not sufficiently allege

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According to Defendant, certain Recalled Lots did not meet potency specifications
throughout their entire shelf life, and thus were “out of specification.” (R. 40, Def.’s Brief, at 9.)
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that the Bravelle that they bought and used was OOS (all counts); (3) Plaintiffs Dodds, Minerich,
and Keith allege that Bravelle worked as promised (Counts I-V, VII, VIII); (4) Plaintiffs fail to
plausibly allege, or allege with particularity, Defendant’s misrepresentations or deceptive
conduct (Counts IV-VII); (5) Plaintiffs fail to plausibly allege reliance or causation related to
Defendant’s alleged misrepresentations (Count I, II, IV-VIII); and (6) Plaintiffs do not plead the
details of their Bravelle purchases with particularity (Counts IV-VII). The Court will address
Defendant’s arguments that Plaintiffs failed to plausibly allege, or allege with particularity,
Defendant’s deceptive conduct or misrepresentations, reliance, and causation as it relates to each
individual claim below. The Court first turns to Defendant’s general arguments set forth above
under (1), (2), and (3).
A.

All Recalled Bravelle

Defendant first argues that Plaintiffs have failed to plausibly allege that all recalled
Bravelle was sub-potent or OOS. Specifically, Defendant takes issue with Plaintiffs’ allegations
based on “information and belief” that all of the Recalled Lots were defective, as well as
Plaintiffs’ reliance on the inference that – based on Defendant’s voluntary recall of the 32 lots of
Bravelle – Defendant knew or suspected that these lots were sub-potent or had the potential to be
sub-potent due to the decreased FSH potency. (First Am. Compl. ¶¶ 2, 30, 31.) In addition to
the allegations Defendant highlights, Plaintiffs also allege that the Bravelle they purchased was
included in the Recalled Lots and further assert that Defendant knew but failed to disclosed that
the Recalled Lots were defective because the lots did not meet the potency standards as
Defendant had advertised and warranted. (Id. ¶¶ 32, 67, 82, 91, 100, 116.)
Turning to Defendant’s first argument, allegations “cannot be faulted for their reliance on

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‘information and belief.’” Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005). The phrase
“information and belief” is “used by plaintiffs who have a good-faith belief in the allegations
they make, but nevertheless make those allegations based on secondhand information.”
Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 948 (7th Cir. 2013); see also Boykin v.
KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (Sotomayor, J) (“allegations may be based on
information and belief when facts are peculiarly within the opposing party’s knowledge.”)
(citation omitted). Courts, however, “frown on making allegations ‘on information and belief’ in
the fraud context and generally find that such claims do not meet Rule 9(b)’s particularity
requirement.” Cincinnati Life, 722 F.3d at 948. The Court will discuss Defendant’s Rule 9(b)
arguments in the context of the Plaintiffs’ deceptive business practices claims below. See
Camasta, 761 F.3d at 738 (“a plaintiff alleging fraud ‘does not have unlimited leeway’ in
satisfying the particularity requirement of Rule 9(b) when the circumstances are pleaded solely
on ‘information and belief.’”).
Viewing Plaintiffs’ well-pleaded allegations as true and all reasonable inferences in their
favor – as the Court is required to do at the procedural posture despite Defendant’s suggestion
otherwise – Plaintiffs have plausibly alleged that all of the Recalled Lots were sub-potent or had
the potential to be sub-potent – especially because Plaintiffs do not have personal knowledge
about how the decreased FSH potency varied among the Recalled Lots. See 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1224 (3d ed. 2004) (“Pleading on
information and belief is a desirable and essential expedient when matters that are necessary to
complete the statement of a claim are not within the knowledge of the plaintiff.”). In short,
Plaintiffs’ allegations that the recalled Bravelle was OOS or sub-potent based on information and

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belief are sufficient under the federal pleading standards because the potency information is not
within the Plaintiffs’ personal knowledge.
B.

Individual Plaintiffs’ Bravelle

Similarly, Defendant argues that the named Plaintiffs failed to plausibly allege that the
exact Bravelle they used was sub-potent because they did “not allege that their Bravelle was
OOS when used, or that they did not receive an appropriate does of Bravelle given their
physicians’ dosing decisions.” (R. 40, Def.’s Brief, at 9.) Again, accepting Plaintiffs’ wellpleaded facts as true and drawing all reasonable inferences in Plaintiffs’ favor, they have alleged
that their fertility treatments failed, that Defendant announced certain lots of Bravelle were subpotent, and that Defendant recalled Bravelle sold in the United States from March 2014 until
October 2015. (First Am. Compl. ¶¶ 2, 7-10, 28-31.) Based on the timing of Plaintiffs’ fertility
treatments, Defendant’s discovery that certain batches of Bravelle were sub-potent in tandem
with the resultant Bravelle recall, and that Plaintiffs’ infertility treatments failed, Plaintiffs have
plausibly alleged that the Bravelle they used at the time of their treatment was sub-potent,
despite their failure to identify the exact Recalled Lot number, as Plaintiff Cooper did. See
Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”). Such specificity is not necessary at this stage.
C.

Bravelle Worked as Promised

Next, Defendant asserts that Plaintiffs Dodds, Minerich, and Keith actually allege that
Bravelle worked as promised suggesting that these Plaintiffs have somehow pleaded themselves
out of court. See O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015) (“A

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complainant can plead himself out of court by including factual allegations that establish that the
plaintiff is not entitled to relief as a matter of law.”). Here, Defendant does not point to specific
allegations in the First Amended Complaint, but rather relies on the Bravelle Patient Information
form in making arguments about the merits and veracity of Plaintiffs’ allegations. The relevant
question at the motion to dismiss stage, however, is not whether Plaintiffs will ultimately prevail
on the merits, but whether the allegations are sufficient to cross the federal pleading threshold.
See Skinner, 562 U.S. at 529-30. Because Defendant seeks to dissect the merits of Plaintiffs’
claims, its argument is unavailing at this time. See Hahn v. Walsh, 762 F.3d 617, 632 (7th Cir.
2014) (plausibility is required “‘to assure that a pleading suffices to give effective notice to the
opposing party,’ not in order to evaluate the veracity of the pleaded facts or the ultimate merits
of the plaintiff’s claim.”) (citation omitted). The Court now focuses on Plaintiffs’ specific
claims.
II.

Breach of Express and Implied Warranties – Counts I and II
In Counts I and II, Plaintiffs allege breach of express warranty claims and breach of the

implied warranty of merchantability claims. In its motion, Defendant argues that Plaintiffs have
failed to plausibly allege their breach of express warranty claims under the federal pleading
standards, that Plaintiffs did not sufficiently allege pre-suit notice for their express and implied
warranty claims, and that the Illinois and Michigan Plaintiffs failed to plead privity. The Court
addresses each argument separately.
A.

Express Warranty Allegations

Plaintiffs allege that Defendant’s Recalled Lots contained an express warranty with every
purchase because each package of Bravelle comes with a Patient Information form. (First Am.

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Compl. ¶ 48.) On the Patient Information form, Defendant represents that Bravelle, including
the Recalled Lots, contains FSH in a sufficient amount and with sufficient potency to treat
women who need help developing and releasing eggs, as well as those women with healthy
ovaries to make multiple eggs as part of an assisted reproductive technology (including IVF)
cycle. (Id.) In addition, Plaintiffs allege that the prescribing information for Bravelle warrants
that the medication “contain[s] 82.5 International Units of FSH, to deliver 75 International Units
FSH after reconstituting.” (Id.) Plaintiffs explain that because the primary benefits of Bravelle
include the development of multiple follicles and stimulation of ovulation and the production of
multiple ova via the administration of FSH, it is critical that patients being treated with Bravelle
receive appropriate and adequate doses of FSH to achieve the intended and specified effects,
therefore, it is critical that patients being treated with Bravelle receive Bravelle that meets the
potency specifications. (Id. ¶ 26.) Also, Plaintiffs allege that they relied on Defendant’s alleged
misrepresentations concerning the Recalled Lots in relation to their breach of warranty claims.
(Id. ¶ 89.)
Turning to relevant state law,2 in Texas, an express warranty is created when “[a]ny
affirmation of fact or promise made by the seller to the buyer which relates to the goods and
becomes part of the basis of the bargain creates an express warranty that the goods shall conform
to the affirmation or promise.” Berge Helen Ltd. v. GE Oil & Gas, Inc., 896 F.Supp.2d 582,
603-04 (S.D. Tex. 2012) (citations omitted); see also Head v. U.S. Inspect DFW, Inc., 159
S.W.3d 731, 746 (Tex. App. 2005). Similarly, in South Dakota, “[a]ny description of the goods

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The Court focuses on Illinois, Michigan, Texas, and South Dakota law based on the
named Plaintiffs’ allegations and to address Defendant’s specific arguments, although Plaintiffs
also bring their breach of warranty claims on behalf of the nationwide and multi-state classes.
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which is made part of the basis of the bargain creates an express warranty that the goods shall
conform to the description.” Nationwide Mut. Ins. Co. v. Barton Solvents Inc., 855 N.W.2d 145,
152 (S.D. 2014) (citation omitted). Under Illinois law, “to prevail on a claim for breach of
express warranty, a plaintiff must plead and prove that the seller made an affirmation of fact that
was part of the basis of the bargain between the parties.” Rosenstern v. Allergan, Inc., 987 F.
Supp. 2d 795, 805 (N.D. Ill. 2013). Likewise, in Michigan, an “express warranty is created by a
seller by setting forth a promise or affirmation, description, or sample with the intent that the
goods will conform.” Scott v. Illinois Tool Works, Inc., 217 Mich. App. 35, 42 (Mich. Ct. App.
1996).
In the present motion, Defendant argues that Plaintiffs have not sufficiently alleged
reliance in relation to their express warranty claims because they “fail to allege that they read or
saw the alleged express warranties.” (Def.’s Brief, at 15.) On the other hand, Plaintiffs contend
that when a warranty is part of every purchase, such as here, a plaintiff is not required to show
individual reliance. See In re Rust-Oleum Restore Mktg., Sales Practices & Prod. Liab. Litig.,
155 F. Supp. 3d 772, 809-10 (N.D. Ill. 2016); see also In re Hydroxycut Mktg. & Sales Practices
Litig., 299 F.R.D. 648, 660 (S.D. Cal. 2014) (“at minimum, the buyer must have heard, seen, or
received the representations in order for them to form the basis of the bargain”); In re Horizon
Organic Milk Plus DHA Omega-3 Mktg. & Sales Practice Litig., 955 F.Supp.2d 1311 (S.D. Fla.
2013) (general allegations of reliance on advertisements and product labels plausibly allege
reliance when “reliance is an essential element of a breach of warranty claim”). The Court
agrees. Because Plaintiffs allege that each package of Bravelle comes with a Patient Information
form and that this form includes Defendant’s representations of Bravelle’s effectiveness, they

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have plausibly alleged reliance under the circumstances. See In re Rust-Oleum, 155 F. Supp. 3d
at 810.
Defendant also argues that Plaintiffs did not sufficiently allege causation under the
federal pleading standards. Despite Defendant’s argument to the contrary, Plaintiffs have
plausibly alleged causation and injury by stating that they took Bravelle for one or more cycles,
Defendant made representations about the potency of the Bravelle, the women consumed the
Bravelle that was sub-potent, and as a result, they did not become pregnant and cannot continue
with fertility treatments due to the significant costs involved. (First Am. Compl. ¶¶ 7, 8, 10, 26,
48, 49, 89.)
B.

Notice

In addition, Defendant argues that Plaintiffs did not allege pre-suit notice as related to
both their breach of express and implied warranty claims. “State law varies on what constitutes
reasonable notice and to whom notice should be given” for breach of warranty claims. Cole v.
Gen. Motors Corp., 484 F.3d 717, 727 (5th Cir. 2007). Nonetheless, the “UCC provides that a
buyer of goods ‘must within a reasonable time after he discovers or should have discovered any
breach notify the seller of breach or be barred from any remedy.’” In re Rust-Oleum, 155 F.
Supp. 3d at 799 (quoting UCC § 2-607(3)(a)); Brookings Mun. Util., Inc. v. Amoco Chem. Co.,
103 F. Supp. 2d 1169, 1175 (D.S.D. 2000) (applying South Dakota law). Some states, however,
allow for constructive notice or no notice at all, depending on the circumstances of the case. See
Compaq Computer Corp. v. Lapray, 135 S.W.3d 657, 674-75 (Tex. 2004) (collecting cases).
Under Illinois law, for example, “[d]irect notice is not required when (1) the seller has actual
knowledge of the defect of the particular product;” or “(2) the seller is deemed to have been

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reasonably notified by the filing of the buyer’s complaint alleging breach of UCC warranty.”
Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 492 (Ill. 1996). In the context of goods sold for
human ingestion, some courts have held that timely noticed is not required. See In re
Hydroxycut Mktg. & Sales Practices Litig., 801 F. Supp. 2d 993, 1009 (S.D. Cal. 2011) (citing
Fischer v. Mead Johnson Labs., 341 N.Y.S.2d 257, 259 (N.Y.App.Div. 1973) (per curiam)
(timely notice not required in case involving oral contraceptives)). Moreover, under comment 4
of the UCC § 2-607(3)(a), the notice rule is required “to defeat commercial bad faith, not to
deprive a good faith consumer of his remedy.” Ashley v. Goodyear Tire & Rubber Co., 635 F.2d
571, 574 (6th Cir. 1980) (quoting Michigan’s UCC statute).
Under the circumstances of this case, Plaintiffs have plausibly alleged that Defendant had
notice of its alleged breach due to Defendant’s actual knowledge that certain Recalled Lots were
sub-potent. See In re Rust-Oleum, 155 F. Supp. 3d at 800 (“direct notice includes when the
seller had actual knowledge of the defect of the particular product”). Specifically, Plaintiffs
allege that Defendant’s internal quality monitoring revealed that certain Bravelle lots did not
meet potency specifications. (First Am. Compl. ¶¶ 2-5, 28.) Plaintiffs also allege that Defendant
recalled unsold batches of Bravelle due to these sub-potency issues. (Id. ¶¶ 29, 32, 28.) As
such, Plaintiffs’ allegations are sufficient at this early stage to establish the UCC notice
requirement. The Court therefore denies Defendant’s motion to dismiss in this respect.
C.

Privity

Defendant further contends that Illinois and Michigan law require plaintiffs to have
privity with the seller to establish a breach of an express warranty for economic loss and that
Illinois also requires privity for breach of implied warranty claims. See Caterpillar, Inc. v.

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Usinor Industeel, 393 F. Supp. 2d 659, 677 (N.D. Ill. 2005) (“To enforce an express warranty
under Illinois law, [] a party without a warranty assignment alleging purely economic loss must
be in privity of contract.”); Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 292 (Ill. 1988)
(“with respect to purely economic loss, the UCC article II implied warranties give a buyer of
goods a potential cause of action only against his immediate seller”); Montgomery v. Kraft
Foods Glob., Inc., 822 F.3d 304, 309 (6th Cir. 2016) (although Michigan requires privity for
breach of express warranty claims, “Michigan has abandoned the privity requirement for
implied-warranty claims.”) (citation omitted). Here, Defendant argues that the Keiths (Illinois)
and Ms. Cooper (Michigan) have failed to sufficiently plead privity because they did not state
that they directly purchased Bravelle from Defendant. Moreover, Defendant posits that it is
unclear if the Keiths or their sister-in-law Ms. Dorris directly purchased the Bravelle.
In response, Plaintiffs argue that “a statement which ‘relates to the goods and becomes
part of the basis of the bargain’ may, under Illinois law, give rise to an express warranty
regardless of whether the parties are in privity.” Ampat/Midwest, Inc. v. Illinois Tool Works,
Inc., No. 85 C 10029, 1988 WL 53222, at *3 (N.D. Ill. May 12, 1988) (emphasis in original)
(citation omitted); but see Rosenstern, 987 F. Supp. 2d at 805 (“a party must have privity of
contract in order to bring a cause of action for breach of express warranty”). Despite Plaintiffs’
reliance on Ampat/Midwest, the Supreme Court of Illinois has yet to extend express warranties to
non-privity plaintiffs, but instead highlights the “comprehensive scheme of remedies” under
Illinois’ UCC. See Collins Co. v. Carboline Co., 125 Ill. 2d 498, 516 (Ill. 1988); see also Frank
v. Edward Hines Lumber Co., 327 Ill. App. 3d 113, 124 (Ill.App. Ct. 2001) (detailing exceptions
to privity requirement under Illinois UCC). In addition to the UCC exceptions, another

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exception to privity under Illinois law is when a remote manufacturer knows “the identity,
purpose and requirements of the dealer’s customer and manufactured or delivered the goods
specifically to meet those requirements.” Canadian Pacific Ry. Co. v. Williams–Hayward
Protective Coatings, Inc., No. 02 C 8800, 2005 WL 782698, at *12–13 (N.D. Ill. Apr. 6, 2005)
(quoting Crest Container Corp. v. R.H. Bishop Co., 111 Ill. App. 3d 1068, 1076 (Ill. App. Ct.
1982)). In Crest Container, for example, the customer sent exact specifications to the
manufacturer before the manufacturer produced a custom-made heating system. See Crest
Container, 111 Ill.App.3d at 1076.
Examining the Illinois Plaintiffs’ allegations and all reasonable inferences in their favor,
they have not sufficiently alleged privity with Defendant nor have they alleged an exception to
privity under Illinois law. Therefore, the Court grants this aspect of Defendant’s motion to
dismiss without prejudice, and grants the Illinois Plaintiffs leave to re-allege their express
warranty claim. The Court also grants the Illinois Plaintiffs’ voluntary dismissal of their breach
of implied warranty claim, without prejudice.
Similarly, under Michigan law, “privity of contract is necessary for a remote purchaser to
enforce a manufacturer’s express warranty.” Montgomery, 822 F.3d at 308 (emphasis in
original) (quoting Heritage Res., Inc. v. Caterpillar Fin. Servs. Corp., 284 Mich.App. 617, 774
N.W.2d 332, 343 n.12 (2009)). Viewing the Michigan Plaintiffs’ allegations and all reasonable
inferences in their favor, they have failed to allege privity with Defendant as required under
Michigan law. The Court therefore grants this aspect of Defendant’s motion to dismiss without
prejudice and also grants the Michigan Plaintiffs leave to amend these allegations keeping in
mind counsel’s Rule 11 obligations.

17

III.

Violations of the Magnuson-Moss Warranty Act – Count VIII
In Count VIII, Plaintiffs allege a Magnuson-Moss Warranty Act (“MMWA”) claim based

on Defendant’s express written warranties. “The MMWA is a remedial statute designed to
protect consumers against deceptive warranty practices.” Anderson v. Gulf Stream Coach, Inc.,
662 F.3d 775, 780 (7th Cir. 2011); see also In re Rust-Oleum, 155 F. Supp. 3d at 796. The
MMWA “provides a federal private cause of action for a warrantor’s failure to comply with the
terms of a ‘written warranty, implied warranty or service contract.’” Anderson, 662 F.3d at 780
(quoting Voelker v. Porsche Cars N. Am., Inc., 353 F.3d 516, 522 (7th Cir. 2003); 15 U.S.C. §
2310(d)(1).
In its motion, Defendant asserts that Plaintiffs have failed to properly allege their
MMWA claim because: (1) Plaintiffs’ MMWA claim cannot be predicated on Plaintiffs’ state
law breach of warranty claims; (2) the MMWA does not apply to the written warranty
“contained in Bravelle’s labeling and packaging” because it is governed by the Federal Food,
Drug, & Cosmetic Act (“FDCA”); and (3) the MMWA does not apply because Bravelle is not a
“consumer product” as defined by the MMWA. The Court discusses each argument below.
A.

State Law Breach of Warranty Claims

As to Defendant’s first argument, it is well-settled that the MMWA “allows consumers to
enforce written and implied warranties in federal court, borrowing state law causes of action.”
Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir. 2004); see, e.g., Pearson & Son
Excavating, Co. v. W. Recreational Vehicles, Inc., No. 03 CV 40246, 2007 WL 836603, at *2
(E.D. Mich. Mar. 14, 2007); see also Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022
(9th Cir. 2008) (“claims under the Magnuson–Moss Act stand or fall with his express and

18

implied warranty claims under state law”). As discussed in detail above, Plaintiffs have
plausibly alleged their breach of express warranty claims based on the Patient Information form
attached to all packages of Bravelle and its labeling under South Dakota and Texas law, and the
Court is granting Plaintiffs leave to re-allege their Illinois and Michigan express warranty
claims. Hence, this first argument is without merit.
B.

Federal Food, Drug, & Cosmetic Act

Next, Defendant contends that Plaintiffs’ MMWA claim fails as a matter of law because
Bravelle’s labeling and packaging – which form the basis of Plaintiffs’ express warranty claims
– is governed by the Food, Drug, & Cosmetic Act. See, e.g., Wyeth v. Levine, 555 U.S. 555, 568
(2009) (“The FDA’s premarket approval of a new drug application includes the approval of the
exact text in the proposed label.”) (citing 21 U.S.C. § 355 & 21 CFR § 314.105(b)); see also 15
U.S.C. § 2311(d) (MMWA “inapplicable to any written warranty the making or content of
which is otherwise governed by Federal law”). Defendant, however, fails to cite legal authority
that the Food, Drug, and Cosmetic Act exclusively governs breach of written warranty claims
based on the labeling of prescription drugs. The Court thus denies this part of Defendant’s
motion to dismiss.
C.

Consumer Products

Defendant further argues that the MMWA only applies to consumer products and that
prescription drugs do not fit under this category. Under the MMWA, a consumer product is
defined as “any tangible personal property which is distributed in commerce and which is
normally used for personal, family, or household purposes.” 15 U.S.C. § 2301(1). “Where it is
unclear whether a particular product is covered under the definition of consumer product, any

19

ambiguity will be resolved in favor of coverage.” 16 C.F.R. § 700.1(a); see also Kwiatkowski v.
Volvo Trucks N. Am., Inc., 500 F. Supp. 2d 875, 876 (N.D. Ill. 2007) (“The implementing
regulations explain that this definition encompasses all products commonly used for consumer
purposes, regardless of their actual use by the individual purchaser.”).
Despite this broad definition, Defendant relies on cases holding that medical devices –
not prescription drugs – are not consumer products under the MMWA because “the Consumer
Product Safety Act (“CSPA”) explicitly states that ‘devices’ regulated under the Federal Food,
Drug, and Cosmetic Act, of which the MDA [Medial Device Amendments] is part, are not
‘consumer products.’” Goldsmith v. Mentor Corp., 913 F. Supp. 56, 63 (D.N.H. 1995) (quoting
15 U.S.C. § 2052(a)(1)(H)) (emphasis in original); see also Kemp v. Pfizer, Inc., 835 F. Supp.
1015, 1025 (E.D. Mich. 1993); Kanter v. Warner-Lambert Co., 99 Cal. App. 4th 780, 798 (Cal.
App. 2002). Because Bravelle is not a medical device, but instead a prescription drug, these
cases are not persuasive. The Court therefore denies Defendant’s motion to dismiss Plaintiffs’
MMWA claim.
IV.

Violations of Consumer Protection Acts – Counts IV, V, VI, and VII
Plaintiffs also allege violations of the Illinois Consumer Fraud and Deceptive Business

Practices Act (“ICFA”), the Texas Deceptive Trade Practices Consumer Protection Act
(“DTPA”) and the South Dakota Trade Practices and Consumer Protection Act (“DTPCPA).
Plaintiffs have voluntarily dismissed their claims under the Michigan Consumer Protection Act
(“MCPA”). Here, Defendant makes several general arguments regarding these claims in light of
Rule 9(b)’s heightened pleading standard, including that: (1) Plaintiffs failed to sufficiently
allege Defendant’s misconduct; (2) Plaintiffs failed to sufficiently allege Defendant’s knowledge

20

or intent; (3) Plaintiffs did not plausibly allege reliance and causation; and (4) Plaintiffs failed to
plead their Bravelle purchase with sufficient particularity. Last, Defendant contends that
Plaintiffs’ ICFA claim fails as a matter of law.
A.

Defendant’s Misconduct

As discussed, when “alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). As the Seventh Circuit directs,
under Rule 9(b), “plaintiffs must plead the ‘who, what, when, where, and how: the first
paragraph of any newspaper story’ of the alleged fraud.” Rocha, 826 F.3d at 911 (citation
omitted). In its motion, Defendant argues that Plaintiffs have failed to allege any actionable
misrepresentations or misconduct with particularity. Plaintiffs disagree pointing to their
allegations that Defendant’s potency-related representations appear on Bravelle’s packaging and
on the Patient Information form provided with every purchase of Bravelle. Further, Plaintiffs
allege that this packaging and information contained misrepresentations that the FSH was
sufficiently potent, including that the prescribing information for Bravelle warrants that the
medication “contain[s] 82.5 International Units of FSH, to deliver 75 International Units FSH
after reconstituting.”
Under the circumstances, Plaintiffs have alleged that the misrepresentations at issue were
on and communicated via Bravelle’s packaging and Patient Information form, that the content of
the misrepresentation was that the FSH was sufficiently potent, and that upon purchasing the
Bravelle, Defendant communicated this misrepresentation to Plaintiffs through Bravelle’s
packaging. Under Seventh Circuit law, these allegations suffice under Rule 9(b). See
Grenadyor, 772 F.3d at 1106.

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B.

Knowing or Intentional Conduct

Defendant also argues that Plaintiffs failed to allege knowing or intentional conduct in
the context of Plaintiffs’ claims that Defendant made misrepresentations regarding Bravelle and
that Defendant failed to disclose Bravelle’s known or potential potency issues. It is well-settled
under Rule 9(b) that plaintiffs may generally allege malice, intent, and knowledge – meaning
that plaintiffs may allege conditions of state of mind – under the strictures of Rule 8. See Iqbal,
566 U.S. at 686-87 (citing See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1301 (3d ed. 2004) (“a rigid rule requiring the detailed pleading of a condition of
mind would be undesirable”). Under this standard, Plaintiffs have plausibly alleged that
Defendant had knowledge concerning its misrepresentations of Bravelle’s potency. See Iqbal,
566 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief” is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.”). In particular, Plaintiffs allege that in October 2015 Defendant’s quality
monitoring revealed reduced FSH potency in the Recalled Lots, Defendant warranted that the
Recalled Lots of Bravelle contained sufficient amounts of FSH, and that Plaintiffs’ ingested
Bravelle during the recall period. Although Plaintiffs do not specifically allege that Defendant
knew about the sub-potency issues at the time Plaintiffs purchased their Bravelle, this is a fact
that is “peculiarly within the opposing party’s knowledge.” Boykin, 521 F.3d at 215. Defendant,
for example, admits that certain Bravelle stability testing took place in the summer and fall of
2015 showing that batches of Bravelle did not meet potency specifications. (R. 48, Resp. Brief,
at 1.) Whether Defendant conducted stability testing prior to the summer of 2015 and whether
the testing results revealed sub-potency issues are facts that Plaintiffs can uncover during

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discovery.
Also, viewing Plaintiffs’ allegations and reasonable inferences in their favor, they have
alleged that Defendant knew, but failed to disclose, the material fact that the Recalled Lots were
defective and did not meet the potency standards as warranted. Specifically, Plaintiffs state that
although the recall was announced in October 2015, the Bravelle subject to the recall had been
sold for as long as 18 months prior to the recall. When viewed in Plaintiffs’ favor and in light of
Plaintiffs’ other allegations, these allegations raise a reasonable inference that Defendant knew
about the sub-potency issues well before October 2015. At this juncture, Plaintiffs’ allegations
regarding knowledge and intent sufficiently cross the federal pleading threshold. See Iqbal, 566
U.S. at 686-87; Skinner, 562 U.S. at 529-30.
C.

Reliance and Causation

Next, Defendant asserts that “Plaintiffs’ failure to identify any false statements upon
which they allegedly relied renders their allegations of reliance and causation implausible.”3
(Def.’s Brief, at 14.) As discussed, Plaintiffs have sufficiently alleged Defendant’s
misrepresentations about Bravelle’s potency as indicated on the Bravelle packaging and Patient
Information form. Also, Plaintiffs explain the importance on Defendant’s representations
regarding Bravelle’s potency, namely, that because the primary benefits of Bravelle include the
development of multiple follicles and stimulation of ovulation and the production of multiple ova
via the administration of FSH, it is critical that patients being treated with Bravelle receive
appropriate and adequate doses of FSH to achieve the intended and specified effects. Plaintiffs

3

Under the ICFA, “[a] showing of actual reliance is not required.” Cocroft v. HSBC
Bank USA, N.A., 796 F.3d 680, 687 (7th Cir. 2015); see also Connick, 174 Ill. 2d at 501
(“Plaintiffs’ reliance is not an element of statutory consumer fraud.”).
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relied on the potency statements by undergoing costly fertility procedures of which Bravelle was
an integral part. Last, Plaintiffs have alleged that Defendant’s misrepresentation caused their
injury, including the costs associated with the infertility treatments, along with the fact that they
did not become pregnant. Despite Defendant’s arguments to the contrary, these allegations
sufficiently state reliance and causation.
D.

Bravelle Purchase

Furthermore, Defendant contends that Plaintiffs have failed to allege sufficient details
about their respective Bravelle purchases under Rule 9(b). Defendant specifically argues that
Plaintiffs omit critical details about their Bravelle purchases – such as when and from whom they
purchased the Bravelle. Plaintiffs, however, allege that they bought their Bravelle from either
their pharmacist or healthcare professionals before their fertility treatments in 2014 and 2015.
(First. Am. Compl. ¶ 44(c)). As to the amount purchased, Ms. Minerich, Ms. Cooper, and the
Keiths allege that they made one Bravelle purchase for one round of infertility treatment. (Id. ¶¶
7, 9-10.) The Dodds made two purchases of Bravelle during the recall period for a total of two
cycles of ovarian stimulation and egg retrieval. (Id. ¶ 8.) Furthermore, although Plaintiffs do not
allege the exact date they purchased the Bravelle, they have set forth the exact dates of their
Bravelle fertility treatments. (Id. ¶¶ 7-10.) Therefore, Defendant’s argument is without merit.
E.

ICFA Claim

Next, Defendant argues that Plaintiffs’ ICFA claim fails as a matter of law. To establish
an ICFA claim, a plaintiff must show “(1) the defendant committed a deceptive act or practice;
(2) the defendant intended for the plaintiff to rely on the deception; (3) the deception happened
in the course of trade or commerce; and (4) the deception proximately caused the plaintiff’s

24

injury.” Cocroft, 796 F.3d at 687. In the present motion, Defendant asserts that because the
FDA approved of the sale and labeling of Bravelle, Plaintiffs’ ICFA claim based on the
Bravelle’s label and the Patient Information form falls under the safe harbor provision of the
ICFA, 815 ILCS 505/10b(1). To clarify, Section 505/10b(1) “states that nothing in the
Consumer Fraud Act shall apply to ‘[a]ctions or transactions specifically authorized by laws
administered by any regulatory body or officer acting under statutory authority of this State or
the United States.’” Price v. Philip Morris, Inc., 43 N.E.3d 53, 56 (Ill. 2015). This safe harbor
provision, however, is an affirmative defense, see id., and Plaintiffs are not required to
“anticipate and attempt to plead around affirmative defenses.” Hyson USA, 821 F.3d at 939; see
also Fields v. Alcon Labs., Inc., No. 13 CV 0197, 2014 WL 1041191, at *2 (S.D. Ill. Mar. 18,
2014) (“Statutory exemption is an affirmative defense not normally appropriate for a Rule
12(b)(6) motion”); cf. Illinois v. McGraw-Hill Co., Inc., No. 13 C 1725, 2013 WL 1874279, at
*5 (N.D. Ill. May 2, 2013) (defendant’s compliance with the ICFA’s ... statutory exemptions is
an affirmative defense to liability, not something that a plaintiff must prove.”). The Court
therefore denies this aspect of Defendant’s motion to dismiss.
V.

Unjust Enrichment – Count III
In Count III, Plaintiffs allege unjust enrichment claims under Illinois, Texas, Michigan,

and South Dakota law. In its motion to dismiss, Defendant argues that because Plaintiffs have
alleged that contractual agreements exist and control this dispute, they are barred from bringing
their unjust enrichment claims. Federal procedural law controls this action under the Erie
doctrine and Federal Rule of Civil Procedure 8(d) allows litigants to plead in the alternative. See
Peterson v. McGladrey & Pullen, LLP, 676 F.3d 594, 597 (7th Cir. 2012) (“A party may state as

25

many separate claims or defenses as it has, regardless of consistency.”) (quoting Fed.R.Civ.P.
8(d)(3)); see also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805 (1999) (the federal
“[r]ules recognize that a person may not be sure in advance upon which legal theory she will
succeed, and so permit parties” to plead inconsistent claims in the alternative). Therefore, this
argument is without merit.
Defendant next asserts that unjust enrichment is not an independent cause of action in
Texas, Illinois, and South Dakota, but instead is an equitable remedy. See Hancock v. Chicago
Title Ins. Co., 635 F. Supp. 2d 539, 560 (N.D. Tex. 2009) (“Texas courts of appeals have
consistently held that unjust enrichment is not an independent cause of action, but is instead a
theory upon which an action for restitution may rest.”); Chicago Title Ins. Co. v. Teachers’ Ret.
Sys. of State of Ill., 7 N.E.3d 19, 24 (Ill. App. Ct. 2014) (“Unjust enrichment is not an
independent cause of action, [r]ather it is a remedy.”); Johnson v. Larson, 779 N.W.2d 412, 416
(S.D. 2010) (unjust enrichment is an “equitable remedy of restitution”). Defendant, however,
concedes that whether unjust enrichment is an independent cause of action is not completely
settled in Illinois and South Dakota. See Cleary v. Philip Morris Inc., 656 F.3d 511, 516 (7th
Cir. 2011) (collecting cases illustrating unsettled law). With this concession, the Court denies
Defendant’s motion to dismiss the Illinois and South Dakota unjust enrichment claims, but
grants with prejudice Defendant’s motion as to the unjust enrichment claim based on Texas law.
Defendant, however, is on notice that the Texas Plaintiffs may seek unjust enrichment as an
equitable remedy.
Defendant also argues that Plaintiffs have failed to plausibly allege unjust conduct and
causation to support their unjust enrichment claims. “Unjust enrichment under Illinois law

26

requires a plaintiff to show that a defendant has ‘unjustly retained a benefit to the plaintiff’s
detriment, and that defendant’s retention of the benefit violates the fundamental principles of
justice, equity, and good conscience.’” Empress Casino Joliet Corp. v. Balmoral Racing Club,
Inc., ___ F.3d ___, 2016 WL 4097439, at *12 (7th Cir. Aug. 2, 2016) (citing HPI Health Care
Servs., Inc. v. Mt. Vernon Hosp., Inc., 131 Ill.2d 145, 160, 137 Ill.Dec. 19, 545 N.E.2d 672, 679
(1989)). Under Michigan law, to “proceed on a claim of unjust enrichment or quantum meruit, a
plaintiff must establish (1) the receipt of a benefit by defendant from plaintiff, and (2) an
inequity resulting to plaintiff because of the retention of the benefit by defendant.” Star of the
W. Milling Co. v. Sales, No. 15 CV 13086, 2016 WL 3753530, at *10 (E.D. Mich. July 14, 2016)
(citation omitted). Pursuant to South Dakota law, “[u]njust enrichment occurs ‘when one confers
a benefit upon another who accepts or acquiesces in that benefit, making it inequitable to retain
that benefit without paying.’” N. Valley Commc’ns, LLC v. Qwest Commc’ns Corp., 659 F.
Supp. 2d 1062, 1070 (D.S.D. 2009) (citations omitted).
Construing Plaintiffs’ allegations as true and all reasonable inferences in their favor,
Plaintiffs have alleged the factual details of their unjust enrichment claims with sufficient
particularity, especially when viewing these allegations within the context of their deceptive
business practices claims discussed above. Specifically, Plaintiffs allege that they and the
putative class members conferred a tangible economic benefit upon Defendant by purchasing the
Recalled Lots and that they would not have purchased the Recalled Lots and incurred the costs
associated with the related medical treatment had they known that the Bravelle was sub-potent.
(First Am. Compl. ¶¶ 12, 26, 61.) They further assert that failing to require Defendant to provide
renumeration under the circumstances would result in Defendant being unjustly enriched at

27

Plaintiffs’ expense because the Bravelle was sub-potent. Defendant knew it was sub-potent or
had the potential to be sub-potent, and that Defendant’s retention of the economic benefit would
be unjust and inequitable. (Id. ¶¶ 2, 30, 62, 63.) Moreover, Plaintiffs have sufficiently alleged
causation and injury by stating that they took Bravelle for one or more cycles, Defendant made
representations about the potency of the Bravelle, the women consumed the Bravelle that was
sub-potent due to deficiencies in the FSH levels, and as a result, they were financially damaged.
(Id. ¶¶ 7, 8, 10, 48, 51.) As such, Plaintiffs have sufficiently alleged their unjust enrichment
claims under Illinois, South Dakota, and Michigan law.
VI.

Motion to Strike
Defendant also moves to strike Plaintiffs’ amended class allegations arguing that because

these allegations are facially and inherently deficient, the Court may determine that this matter
cannot proceed as a class action at this early stage of the proceedings. See Fed.R.Civ.P.
23(d)(1)(D). Courts in this district have determined that when class action pleadings “are
facially defective and definitively establish that a class action cannot be maintained,” they “can
properly grant a motion to strike class allegations at the pleading stage.” Wolfkiel v.
Intersections Ins. Servs. Inc., 303 F.R.D. 287, 292 (N.D. Ill. 2014) (citation omitted). Although
Rule 23(c)(1)(A) states that “[a]t an early practicable time after a person sues or is sued as a class
representative, the court must determine by order whether to certify the action as a class action,”
courts recognize that “most often it will not be ‘practicable’ for the court to do that at the
pleading stage.” Buonomo v. Optimum Outcomes, Inc., 301 F.R.D. 292, 295 (N.D. Ill. 2014)
(citation omitted). Specifically, if “the dispute concerning class certification is factual in nature
and ‘discovery is needed to determine whether a class should be certified,’ a motion to strike the

28

class allegations at the pleading stage is premature.” Id. (citation omitted); see also Kasalo v.
Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) (court “need not delay a ruling on
certification if it thinks that additional discovery would not be useful in resolving the class
determination”).
In support of its motion to strike, Defendant relies on its voluntary recall and
reimbursement program in which it offers reimbursement for the cost of Bravelle, but not for any
of the other costs related to the fertility treatments, which as Plaintiffs allege, are significantly
higher. Indeed, Plaintiffs allege that the costs of the fertility treatments are prohibitively
expensive and, that due to these costs, they cannot seek any further treatments at this time.
Defendant nonetheless argues that Plaintiffs do not adequately represent the putative classes
because: (1) Plaintiffs’ proposed class action unnecessary adds transaction costs at the expense
of the class; and (2) Plaintiffs’ proposed class action is “riskier” than the reimbursement
program. The Court need not address Defendant’s third argument – that the named Plaintiffs are
not typical class representatives because they have failed to plausibly allege that they used OOS
Bravelle – because the Court has already rejected this argument above.
A.

Transaction Costs

Defendant argues that Plaintiffs seek relief that duplicates the Bravelle reimbursement
plan, and therefore, the putative classes will incur unnecessary and high transaction costs of
notice and attorney’s fees at their own expense. Under this scenario, and relying on In re Aqua
Dots Prod. Liab. Litig., 654 F.3d 748, 752 (7th Cir. 2011), Defendant thus asserts that the named
Plaintiffs will not adequately protect the class members’ interests. See Fed.R.Civ.P. 23(a)(4). In
Aqua Dots, the named plaintiffs sought refunds on behalf of purchasers of a toy that the

29

distributor had voluntarily recalled. Id. at 749-50. As part of the recall, the distributor offered
replacements or refunds. Id. Here, in contrast, Plaintiffs allege that the Bravelle reimbursement
program only refunds the costs of the Bravelle itself and not the attendant costs involved in the
fertility treatments and other medical costs. As such, Aqua Dots is readily distinguishable.
Under the circumstances, refunding Bravelle’s cost or replacing the Bravelle does not provide
the entire remedy the named Plaintiffs seek – especially because of the significantly higher costs
associated with the fertility treatments of which Bravelle is an integral part.
B.

Class Action Riskier

In further support of its motion to strike, Defendant contends that Plaintiffs and the
putative classes will face several proof requirements that they do not face under the
reimbursement program. More specifically, Defendant asserts that class members will have to
prove that their Bravelle was OOS, whereas, under the reimbursement program, purchasers need
not make this showing. Again, Defendant ignores Plaintiffs’ allegations that they are seeking
more than Bravelle’s cost, namely, they also seek the significantly more expensive costs
associated with their fertility treatments and attendant medical procedures. Therefore,
Defendant’s argument that the Court should strike the class allegations because it is providing
“full compensation” to the class members under the reimbursement plan is unavailing.
In addition, Defendant’s argument that a class action is riskier than the reimbursement
plan because class members will have to prove that they suffered injury or damages is not
persuasive under the circumstances. Indeed, “the need for individual damages determinations
does not, in and of itself, require denial of [a] motion for certification.” Arreola v. Godinez, 546
F.3d 788, 801 (7th Cir. 2008) (“Although the extent of each class member’s personal damages

30

might vary, district judges can devise solutions to address that problem if there are substantial
common issues that outweigh the single variable of damages amounts.”).
The remainder of Defendant’s arguments based on the risky nature of a class action
merely repeat the same arguments Defendant made in support of its motion to dismiss – many of
which are factual in nature – making a motion to strike the class allegations inappropriate at this
procedural posture. See Boatwright v. Walgreen Co., No. 10 C 3902, 2011 WL 843898, at *2
(N.D. Ill. Mar. 4, 2011) (“Because a class determination decision generally involves
considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause
of action, [] a decision denying class status by striking class allegations at the pleading stage is
inappropriate.”). The Court therefore denies Defendant’s motion to strike the class allegations.
On a final note, the Court reminds the parties that arguments made for the first time in a
reply brief and partial or cursory arguments made in footnotes are waived. See Thulin v. Shopko
Stores Operating Co., LLC, 771 F.3d 994, 997 (7th Cir. 2014); United States v. Vitrano, 747
F.3d 922, 925 (7th Cir. 2014).
CONCLUSION
For these reasons, the Court grants in part without prejudice and denies in part
Defendant’s Rule 12(b)(6) motion to dismiss. The Court grants Plaintiffs leave to file a Second
Amended Class Action Complaint. The Court denies Defendant’s motion to strike.
Dated: September 27, 2016
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge
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