Eike et al v. Allergan, Inc. et al

Filing 199

ORDER. The Court DENIES Defendants' Motion for Reconsideration or in the Alternative for Certification of Issues for Interlocutory Appeal (Doc. 149 ) in its entirety. Signed by Judge Staci M. Yandle on 2/12/15. (ajr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLENE EIKE, SHIRLEY FISHER,
JORDAN PITLER and ALAN RAYMOND,
Plaintiffs,
Case No. 12-cv-1141-SMY-DGW
vs.
ALLERGAN, INC., et al.,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion for Reconsideration or in the
Alternative for Certification of Issues for Interlocutory Appeal (Doc. 149). Plaintiffs have filed
their response (Doc. 165). For the following reasons, the Court denies the Motion.
Background
Plaintiffs’ First Amended Complaint alleges Defendants’ practices of selling topical
prescription ophthalmic pharmaceuticals are unfair, unethical and unconscionable and violate the
Illinois Consumer Fraud & Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (“ICFA”)
and the Missouri Merchandising Practices Act, Mo. Rev. State. § 407.010, et seq. (“MMPA”).
Specifically, Plaintiffs allege the following nine counts: Count I – ICFA Violations of Allergan;
Count II – MMPA Violations of Allergan; Count III – ICFA Violations of Alcon; Count IV –
MMPA Violations of Alcon; Count V – ICFA Violations of Bausch; Count VI – MMPA
Violations of Bausch; Count VII – MMPA Violations of Pfizer; Count VIII – ICFA Violations
of Merck; and Count IX – ICFA Violations of Prasco.

Defendants filed their Motions to Dismiss Plaintiffs’ First Amended Complaint raising
the following arguments: (1) Plaintiffs failed to allege sufficient facts to establish that the sale of
medications that emit eye drops larger than 15 microliters violates any public policy, is coercive
or oppressive, or causes substantial injury to Plaintiffs and thus failed to state claims under the
ICFA and MMPA; (2) Plaintiffs have failed to plead a causal connection between Defendants’
conduct and Plaintiffs’ alleged damages; (3) Plaintiffs failed to allege any actual injury; (4)
Plaintiffs have not satisfied federal pleading requirements under Rule 8(a); (5) Plaintiffs’ claims
are exempted for compliance with other laws or regulations; and (6) the claims are preempted by
federal law. This Court denied the motions in their entirety (Doc. 147). Defendants now ask the
Court to reconsider the portion of the order finding that Plaintiffs had stated an unfair practice as
required by both the ICFA and the MMPA. In the alternative, they seek an order pursuant to 28
U.S.C. § 1292(b) certifying three issues for interlocutory appeal.
Motion for Reconsideration
“A court has the power to revisit prior decisions of its own . . . in any circumstance,
although as a rule courts should be loathe to do so in the absence of extraordinary circumstances
such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.’”
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v.
California, 460 U.S. 605, 618 n. 8 (1983)); Fed. R. Civ. P. 54(b) (providing a non-final order
“may be revised at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities”). The decision whether to reconsider a previous ruling in the same
case is governed by the law of the case doctrine. Santamarina v. Sears, Roebuck & Co., 466
F.3d 570, 571-72 (7th Cir. 2006). The law of the case is a discretionary doctrine that creates a
presumption against reopening matters already decided in the same litigation and authorizes

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reconsideration only for a compelling reason such as a manifest error or a change in the law that
reveals the prior ruling was erroneous. United States v. Harris, 531 F.3d 507, 513 (7th Cir.
2008); Minch v. City of Chicago, 486 F.3d 294, 301 (7th Cir. 2007).
The relevant portion of the Court’s order states as follows:
The Court finds that plaintiffs have sufficiently alleged an unfair practice under
both the ICFA and the MMPA. The complaint clearly alleges that defendants sell
their products in containers “designed to dispense eye drops larger than the
capacity of the human eye” (Doc. 44 at 36, 38). They further allege that this
practice violates the public policy of both Missouri and Illinois as expressed by
the Federal Trade Commission’s Policy Statement on Unfairness. Both the ICFA
and the MMPA accept the interpretations of the Federal Trade Commission as
evidencing offense of a public policy, herein relied upon by plaintiffs in their
complaint. 815 ILCS 505/2; Mo. Code Regs. Tit. 15, § 60-8.020. Plaintiffs
further allege that defendants’ violations caused plaintiffs and class members “to
suffer actual damage measured by the allocated purchase price for the portion of
their eye drops in excess of 15 μL” (Doc. 44 at 37, 39).
(Doc. 147, p. 6).
Defendants argue that the Court should reconsider this portion of its Order based on a
change in the law. Specifically, they contend that the Seventh Circuit’s opinion in Batson v. Live
Nation Entertainment, Inc., 746 F.3d 827 (7th Cir. 2014), decided only a week after this Court
issued its order, confirms that Plaintiffs’ ICFA and MMPA claims fail as a matter of law. In
Batson, the plaintiff alleged the defendants’ conduct was unfair and violated the ICFA when the
defendants bundled a $9 parking fee with the price of the plaintiff’s ticket to a live performance.
Id. at 829. The court noted that Illinois recognized the Sperry test which, in determining whether
a practice is unfair, asks “whether the practice (1) offends public policy; (2) is immoral,
unethical, oppressive, or unscrupulous; or (3) causes substantial injury to consumers.” Id. at 830
(citing Fed. Trade Comm’n v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n.5 (1972). The
Court further noted that not all three factors need be present to find a practice unfair and
proceeded to determine whether the plaintiff could satisfy at least one of these elements. Id.
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The Batson court rejected the plaintiff’s arguments that the defendants’ practice violates a
public policy against tying, a public policy in favor of musical diversity, and a public policy in
favor of using alternative methods of transportation. Id. at 830-33. Specifically, the court found
no policy against “undifferentiated tying” under federal or Illinois law. Id. at 832. The court
rejected the musical diversity and walking arguments noting that the ICFA was only “concerned
with public policy as established by statutes and the common law.” Id. at 833.
Next, the Batson court considered whether the defendant’s practice was immoral,
unethical, oppressive, or unscrupulous, noting that the appropriate inquiry was “whether a
defendant’s conduct is ‘so oppressive as to leave the consumer with little alternative except to
submit to it . . . .’” Id. (quoting Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951, 961
(Ill. 2002)). The plaintiff, however, did not provide evidence that the full price of the ticket was
oppressive and there was “no evidence that the concert was worth any less than the face price of
the ticket.” Id. at 833-34. Finally, the court found no substantial injury to consumers because
plaintiff could have avoided the injury by foregoing the concert or opting for alternative
entertainment. Id. at 834.
Batson does not represent any change in law warranting a reconsideration of this Court’s
previous Order. It merely applies existing principles, the same factors used in the Order denying
Defendants’ motions to dismiss, in the context of a ticket price bundled with a parking fee. For
that reason, the Court denies Defendants’ Motion to Reconsider.
Even if the Court did apply Batson’s reasoning to the instant case, the Court would still
conclude that Plaintiffs’ Complaint states a claim for relief under both the ICFA and MMPA.
Batson’s holding has no bearing over the MMPA claim. As Batson noted, the Court need only
find one of the Sperry factors present to conclude Plaintiffs have stated a claim. Here, unlike

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Batson, Plaintiffs’ have satisfied at least the third Sperry factor. Plaintiffs have pleaded that the
size of the large size of the drop would cause them to use the prescribed amount before the
insurance would cover a new prescription. As such, Plaintiffs suffered injury in that they would
have to forego a necessary medication. As alleged, there are no countervailing benefits to
consumers or competition. Finally, unlike a concert, Plaintiffs cannot simply forego a prescribed
medication. As such, Plaintiffs have sufficiently alleged that Defendants’ conduct constitutes an
unfair practice under the ICFA.
Motion for Certification for Interlocutory Appeal
Defendants ask that the Court certify the following three issues for interlocutory appeal:
(1) Whether a plaintiff states a viable unfair practices claim under the [ICFA] or
the [MMPA] by alleging that an FDA-approved product would cost the plaintiff
less if it were redesigned;
(2) Whether the sale of an FDA-approved prescription is exempted from liability
under 815 ILCS 505/10b(1) because it is specifically authorized by laws
administered by a regulatory body acting under statutory authority of the United
States; and
(3) Whether state-law claims that seek to impose liability on pharmaceutical
manufacturers or distributors for not redesigning their FDA-approved prescription
medication are preempted by federal law pursuant to Mutual Pharmaceuticals Co.
v. Bartlett, 133 S. Ct. 2466 (2013), and PLIVA, Inc. v. Mensing, 131 S. Ct. 2567
(2011).
The Court of Appeals, in its discretion, may hear an interlocutory appeal after
certification from the district court that the appeal presents “a controlling question of law as to
which there is substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).
Accordingly, “[t]here are four statutory criteria for the grant of a section 1292(b) petition to
guide the district court: there must be a question of law, it must be controlling, it must be
contestable, and its resolution must promise to speed up the litigation.” Ahrenholz v. Bd. of Trs.
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of Univ. of Ill., 219 F.3d 674, 676 (7th Cir. 2000). The party seeking an interlocutory appeal
bears the burden of demonstrating “exceptional circumstances justify a departure from the basic
policy of postponing appellate review until after the entry of a final judgment.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 475 (1978).
A “question of law” within the meaning of section 1292(b) “has reference to a question
of the meaning of a statutory or constitutional provision, regulation, or common law doctrine.”
Ahrenholz, 219 F.3d at 676. For instance, in considering the interlocutory appeal of a denial of
summary judgment, the court explained that such a denial was technically a question of law;
however, it was not a “question of law” within section 1292(b). Id. Similarly, while contract
interpretation is technically a question of law, it is not a “question of law” within the meaning of
section 1292(b). Id. The court explained that:
[t]he idea was that if a case turned on a pure question of law, something the court
of appeals could decide quickly and cleanly without having to study the record,
the court should be enabled to do so without having to wait till the end of the case.
. . . But to decide whether summary judgment was properly granted requires
hunting through the record compiled in the summary judgment proceeding to see
whether there may be a genuine issue of material fact lurking there; and to decide
a question of contract interpretation may require immersion in what may be a
long, detailed, and obscure contract . . . .
Id. at 676-77.
Here, Question (1) does not present a pure question of law within the meaning of section
1292(b). Rather, Question (1) involves applying specific facts pleaded in Plaintiffs’ Complaint
to legal standards applicable under the ICFA and MMPA. As such, Question (1) is not suitable
for certification for an interlocutory appeal. Question (2), as stated by the Defendants, does
present a question of law. However, upon examination, the relevant portion of the Court’s Order
denying Defendants’ Motion to Dismiss is not suitable for appeal. Defendants’ argument related
to Question (2) was rejected because statutory exemption is an affirmative defense that was not
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properly before the Court on a Rule 12(b)(6) motion. Accordingly, the Court did not reach the
substance of Defendants’ argument because it was not presented in the proper manner. Question
(3) is not suitable for appeal at this juncture either. The Court denied Defendants’ Motions to
Dismiss on the preemption issue noting that questions of fact still need to be determined and the
record further developed before the Court could decide the preemption issue. As such, Question
(3) is not a question that the Court of Appeals “could decide quickly and cleanly.”

In sum, the

Order denying Defendants’ Motions to Dismiss is not suitable for certification for interlocutory
appeal.
Conclusion
For the foregoing reasons, the Court DENIES Defendants’ Motion for Reconsideration
or in the Alternative for Certification of Issues for Interlocutory Appeal (Doc. 149) in its entirety.
DATED: February 12, 2015
s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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