LoConte et al v. Forest Laboratories, Inc.

Filing 32

Judge Nathaniel M. Gorton: MEMORANDUM & ORDER entered. The defendants 8 request for judicial notice is ALLOWED; and the defendants 11 motion to dismiss plaintiffs complaint is, with respect to Counts I, II, III and V as to plaintiff LoConte (the RICO, Chapter 93A and unjust enrichment claims as to plaintiff LoConte), ALLOWED, but is otherwise DENIED. Counts I, II, IV and V as to plaintiff Kiossovski survive defendants motion. (Danieli, Chris)

United States District Court
District of Massachusetts
)
)
)
CELEXA AND LEXAPRO MARKETING AND )
SALES PRACTICES LITIGATION
)
)
In re:

MARLENE T. LOCONTE and DELANA S. )
KIOSSOVSKI, on behalf of
)
themselves and all persons
)
similarly situated,
)
)
Plaintiffs,
)
)
v.
)
)
FOREST LABORATORIES, INC. and
)
FOREST PHARMACEUTICALS, INC.,
)
)
Defendants.
)
)

MDL No.
09-2067-NMG

Civil Action No.
14-13848-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of the marketing and sales of the
related anti-depressant drugs Celexa and Lexapro by defendants
Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc.
(“defendants” or, collectively, “Forest”).

Plaintiffs Marlene

T. LoConte (“LoConte”) and Delana S. Kiossovski (“Kiossovski”),
consumers who purchased Celexa or Lexapro for their minor
children, allege that defendants violated the Racketeer
Influenced and Corrupt Organizations Act (“RICO”) and were
unjustly enriched by misrepresenting and concealing material
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information about the efficacy of those drugs in treating major
depressive disorder (“MDD”) in pediatric patients.

LoConte and

Kiossovski advance additional state law claims under the
Massachusetts Consumer Protection Act, M.G.L. c. 93A (“Chapter
93A”) and the Washington Consumer Protection Act (“CPA”),
respectively.
Pending before the Court are defendants’ request for
judicial notice and motion to dismiss plaintiffs’ complaint.
For the reasons that follow, the request for judicial notice
will be allowed and the motion to dismiss will be allowed, in
part, and denied, in part.
I.

Background
Celexa and Lexapro are closely-related selective serotonin

reuptake inhibitor antidepressants.

Forest obtained the

approval of the Food and Drug Administration (“FDA”) to market
Celexa (citalopram) for adult use in 1998 and to market Lexapro
for adult use in 2002.

It later sought to market both drugs for

use in treating MDD in children and adolescents.
A.

FDA approval process

In order to obtain FDA approval to market Celexa and
Lexapro as effective for pediatric and adolescent use, Forest
was required to make a sufficient showing to the FDA that the
drugs would be more effective than placebos in treating MDD in
pediatric or adolescent patients.
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The FDA typically requires

parties to submit at least two “positive” placebo-controlled
clinical trials supporting such use.
Drug studies are deemed “positive” if they show
statistically significant improvements for patients who are
administered a drug rather than a placebo.

In contrast, a

“negative” study is one that indicates no statistically
significant difference in outcomes between patients who are
administered the drug and those who receive a placebo.
Drug manufacturers submit the results of such trials to the
FDA as part of “new drug applications” (“NDAs”).

Through an

NDA, a manufacturer may also request FDA approval of use of the
drug to treat a specific condition which is known as an
“indication.”

A manufacturer may only market and sell the drug

for an approved indication.
B.

Clinical studies and FDA approval of an adolescent
indication for Lexapro

Forest arranged for researchers to conduct four doubleblind, placebo-controlled studies on the efficacy of Celexa and
Lexapro in treating pediatric and adolescent depression.

The

first two studies, which examined the efficacy of Celexa, were
completed in 2001.

Of those studies, Celexa Study 18 (“Wagner

Study”) produced positive results whereas Celexa Study 94404
(“Lundbeck Study”) produced negative results.

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Forest submitted the results of the two Celexa studies to
the FDA in a supplemental NDA in 2002.

The FDA denied Forest’s

application for a pediatric indication for Celexa after finding
that the Lundbeck Study was a clearly negative study.
Two studies of Lexapro’s efficacy produced similar results
to the earlier Celexa studies.

Lexapro Study 15, which was

completed in 2004, produced negative results, whereas Lexapro
Study 32 was positive.
Celexa’s FDA-approved label was revised in February, 2005
to include a description of the Wagner Study and Lundbeck Study.
Lexapro’s FDA-approved label was revised at the same time to
describe Lexapro’s negative pediatric study.

Both labels added

an explicit statement that data were not sufficient at that time
to support an indication for use in pediatric patients.
In 2008, Forest submitted the results of the Lexapro
studies and the earlier Celexa studies to the FDA in a
supplemental NDA.

Based on 1) the fact that Celexa Study 18 and

Lexapro Study 32 were both positive for efficacy in adolescents
and 2) the chemical similarities between Celexa and Lexapro, the
FDA permitted Forest to revise its Lexapro label in March, 2009
and market Lexapro as safe and effective in treating MDD in
adolescents.

Forest never obtained FDA approval to market

Celexa for such use.

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C.

Alleged misrepresentations by Forest

Plaintiffs allege that Forest engaged in a comprehensive
program to mislead consumers and healthcare professionals into
believing that Celexa and Lexapro were clinically effective in
treating MDD in children.

The crux of their theory is that

Forest deprived consumers of the ability to make an informed
decision about whether to purchase or prescribe Celexa or
Lexapro for their children by withholding information about the
negative efficacy studies and engaging in an aggressive
marketing campaign designed to mislead consumers and physicians
about the efficacy of Celexa.
D.

United States’ qui tam complaint

In February, 2009, the United States Department of Justice
unsealed its qui tam complaint against Forest (“government’s qui
tam complaint”) alleging off-label pediatric promotion and
concealment of the Lundbeck Study.
Following the unsealing of the government’s qui tam
complaint, several national class actions were filed including
1) New Mexico UFCW Union’s and Employers’ Health and Welfare
Trust Fund v. Forest Labs, Inc. et al., No. 09-cv-11524-NMG
(filed Mar. 13, 2009) (“March, 2009 RICO action”), which alleged
causes of action under civil RICO and various state consumer
protection statutes on behalf of a putative class of TPPs and 2)
Anson v. Forest Labs, Inc. et al., No. 09-cv-11539-NMG (filed
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June 9, 2009) (“Anson action”), which asserted civil RICO and
consumer fraud claims on behalf of a nationwide consumer class.
In September, 2010, Forest pled guilty to several
violations of the Food, Drug and Cosmetic Act and agreed to pay
$313 million and to cease and desist its pattern of misconduct.
E.

Procedural history

Plaintiffs are consumers whose minor children were
prescribed Celexa or Lexapro.

LoConte paid $1,476 for Lexapro

prescriptions for her fourteen-year-old son from November, 2004
until at least 2010.

Kiossovski paid $60 for Celexa

prescriptions for her twelve-year-old daughter between July,
2001 and March, 2002 when her daughter was hospitalized due to
worsening depression and the emergence of suicidal ideation.
Plaintiffs filed their complaint in August, 2014 asserting
claims under RICO (Counts I and II), Massachusetts Consumer
Protection Act (Count III), Washington Consumer Protection Act
(Count IV) and the common law for unjust enrichment (Count V).
Defendants made a request for judicial notice and moved to
dismiss the case in December, 2014.

A hearing was held on the

pending motion to dismiss in June, 2015.
II.

Defendants’ request for judicial notice
Under Federal Rule of Evidence 201(b)
[t]he court may judicially notice a fact that is not
subject to reasonable dispute because it: (1) is
generally known within the trial court’s territorial
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jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably
be questioned.
Fed. R. Evid. 201(b).

Moreover, the Court

must take judicial notice if a party requests it and the
court is supplied with the necessary information.
Fed. R. Evid. 201(c).
Forest requests the Court to take judicial notice of 67
documents: 47 newspaper articles, two medical publications,
eight press releases, six complaints filed in other federal
courts and four FDA-approved drug labels for Celexa and Lexapro.
Defendants ask for judicial notice of the fact that the articles
were published, the dates of their publication and the existence
of their contents.
Plaintiffs contend that the request is improper because
those documents are being used to support defendants’ statute of
limitations (“SOL”) argument, which is an affirmative defense.
They aver that the Court cannot allow a motion to dismiss based
on an affirmative defense unless the facts used to establish
that defense are on the face of the complaint.
The First Circuit Court of Appeals has clearly stated,
however, that an action can be dismissed on the basis of an
affirmative defense as long as the facts
from the allegations of the complaint, the documents (if
any) incorporated therein, matters of public record, and
other matters of which the court may take judicial

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notice....conclusively
defense.

establish

the

affirmative

In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 16 (1st Cir.
2003).

A court therefore may take judicial notice of facts

outside the complaint when adjudicating a motion to dismiss
based on an affirmative defense. See Plumlee v. Pfizer, Inc.,
2014 WL 4275519, at *4, n. 2 (N.D. Cal. Aug. 29, 2014) (taking
judicial notice of various publications, court records and FDAapproved drug labels).
Plaintiffs further argue that it is inappropriate to take
judicial notice of the contents of the 47 newspaper articles.
Defendants are not, however, asking the Court to accept the
truth of the contents in those articles but rather the fact that
the contents were published on a certain date.

When the

authenticity of a newspaper article cannot be reasonably
questioned, a court may take judicial notice of the fact that
the articles were published, without taking judicial notice of
the truth of their contents. See Garber v. Legg Mason Inc., 347
Fed. App’d 665, 669 (2d Cir. 2009).
Plaintiffs have not challenged the authenticity of any of
the 67 documents listed in defendants’ request.

Accordingly,

the Court takes judicial notice of those documents.

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III. Defendants’ motion to dismiss
A.

Legal standard

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The Court must accept all

factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

The Court,

however, need not accept legal conclusions as true. Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009).

Threadbare recitals of the

legal elements, supported by mere conclusory statements, do not
suffice to state a cause of action. Id.

Accordingly, a

complaint does not state a claim for relief where the well-pled
facts fail to warrant an inference of any more than the mere
possibility of misconduct. Id. at 1950.
B.

Statute of limitations (“SOL”)
1.

RICO claims

The SOL for civil RICO claims is four years after the
plaintiff discovers or should have discovered the injury. See
Rotella v. Wood, 528 U.S. 549, 552-55 (2000).

The accrual of

the limitations period is computed from “the point of injury or
its reasonable discovery” and not from the “reasonable discovery

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of a pattern [of racketeering activity].” Id. at 558; Lares
Grp., II v. Tobin, 221 F.3d 41, 43 (1st Cir. 2000).
Forest contends that plaintiffs should have been on notice
of their alleged injuries by 2005 because 1) a number of
articles were published in 2004 in The New York Times alleging
that Forest concealed the Lundbeck study and discussing the
negative result of the Lundbeck Study, 2) Forest issued several
press releases in 2004 and 2005 announcing the results of the
Lundbeck study and a negative Lexapro pediatric study and 3)
Forest revised both the Celexa and Lexapro labels in early 2005
to describe the additional studies and state that “the data were
not sufficient to support a claim for use in pediatric
patients.”1

Defendants also refer to all of the publications and

documents listed in their request for judicial notice to further
bolster their argument.
Although the relevant Celexa and Lexparo clinical study
results were publicized via numerous channels by 2005, the Court
has previously declined to find as a matter of law at the motion
to dismiss stage that sophisticated third-party payers (“TPPs”)

Forest contends that Kiossovski should have been on notice of
her claims as far back as March, 2002 when her minor daughter
was hospitalized due to worsening depression. Even if
Kiossovski should have begun taking steps in 2002 to discover
why Celexa was ineffective in treating her daughter’s
depression, however, it still remains a jury question as to
exactly when she should have discovered her claims.
1

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should have been on notice of a RICO injury that year. In re
Celexa & Lexapro Mktg. & Sales Practices Litig., 2014 WL
7009339, at *4 (D. Mass. Dec. 12, 2014) (“December, 2014
Memorandum & Order”).

It therefore reaches the same conclusion

as to consumers and will leave the determination of whether
plaintiffs should have discovered their injuries as of 2005 to
the finder of fact.
Citing to the December, 2014 Memorandum & Order, Forest
then contends that the SOL accrued at the latest in March, 2009
when a RICO class action on behalf of a putative nationwide
class of TPPs was filed following the unsealing of the
government’s qui tam complaint.

Defendants’ reliance on the

Court’s earlier decision is misplaced, however, because
plaintiffs in this case are consumers and not sophisticated
TPPs.

The Court had reached its conclusion that TPPs should

have been on notice of the March, 2009 RICO action based on case
law barring RICO claims brought by TPPs beyond the date of an
initial TPP lawsuit because TPPs are
for the most part sophisticated institutions with
sophisticated
advisors....[with]
expertise
in
merchandising
of
pharmaceuticals
and
fiduciary
responsibilities to their clients.
In re Zyprexa Products Liab. Litig., 253 F.R.D. 69, 195-96
(E.D.N.Y. 2008) rev'd on other grounds sub nom. UFCW Local 1776
v. Eli Lilly & Co., 620 F.3d 121 (2d Cir. 2010).

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Given that the

running of the SOL is usually a question for the jury, In re
Lupron Mktg. & Sales Practices Litig., 295 F. Supp. 2d 148, 183
(D. Mass. 2003), the Court declines to extend its ruling with
respect to the March, 2009 SOL accrual date to consumer
plaintiffs.

Similarly, it will leave the determination as to

whether plaintiffs should have been on notice of their RICO
claims following the filing of the Anson action in June, 2009 to
the finder of fact.
2.

Plaintiffs’ state law claims

The limitations periods for LoConte’s Chapter 93A and
unjust enrichment claims are four years and three years,
respectively.

M.G.L. c. 260 §§ 5A and 2A.

Pursuant to the

discovery rule,
the statute of limitations starts when the plaintiff [1]
discovers, or [2] reasonably should have discovered,
that [she] has been harmed or may have been harmed by
[defendants’] conduct.
Passatempo v. McMenimen, 461 Mass. 279, 294 (2012) (citations
omitted).

Moreover,

[r]easonable notice that a particular product or a
particular act of another person may have been the cause
of harm to a plaintiff creates a duty of inquiry...
Bowen v. Eli Lilly & Co., 408 Mass. 204, 210, (1990).
The statutes of limitations for Kiossovski’s Washington
Consumer Protection Act and unjust enrichment claims are also

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four years and three years, respectively. Wash. Rev. Code §§
19.86.120 and 4.16.080(3).

Under a similar discovery rule,

a cause of action accrues when the plaintiff, through
the exercise of due diligence, knew or should have known
the basis for the cause of action.
Shepard v. Holmes, 345 P.3d 786, 790 (Wash. Ct. App. 2014)
(internal quotation and citation omitted).
LoConte alleges that she learned of her claims in late
November, 2013 and Kiossovski alleges that she learned of her
claims in January, 2014.

Although both plaintiffs contend that

they could not have discovered the fraudulent nature of Forest’s
conduct any earlier, neither articulates what occurred on those
dates to enable her to discover her claims or why she could not
have discovered the relevant facts earlier when other plaintiffs
were able to do so.
The Court has, however, left the determination of the
accrual date with respect to these consumer plaintiffs to the
finder of fact.

It therefore concludes that plaintiffs’ state

law claims are not time-barred at this stage of the litigation.
C.

Substantive claims
1.

Violations of civil RICO, 18 U.S.C. §§ 1962(c)
and (d) (Counts I and II)

In order to have standing to pursue claims under RICO,
plaintiffs must allege

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(1) a violation of section 1962; (2) injury to business
or property; and (3) causation of the injury by the
violation.
Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 23 (2d Cir.
1990).

With respect to the second element, adequately pleading

injury “requires proof of a concrete financial loss and not mere
injury to a valuable intangible property interest.” Maio v.
Aetna, Inc., 221 F.3d 472, 483 (3d Cir. 2000).

The alleged

injury cannot be hypothetical or speculative. Circiello v.
Alfano, 612 F. Supp. 2d 111, 114 (D. Mass. 2009).
Defendants contend that plaintiffs fail to plead a
cognizable RICO injury because they have not alleged that the
drugs were ineffective treatments for their children
specifically.

While acknowledging that Kiossovski states that

her daughter’s depression worsened while taking Celexa,
defendants maintain that plaintiffs’ only theory of injury is
that they paid for drugs while being deprived of material
information to make an informed decision.

Forest avers that

such a deprivation of information, absent an allegation that the
drugs were defective, is too hypothetical and speculative to
serve as a RICO injury because plaintiffs suffered no tangible
harm to their business or property.

The Court agrees, but only

with respect to LoConte’s RICO claim which was based on her
purchase of Lexapro.

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Plaintiffs frame their injury resulting from Forest’s
misrepresentations as an inability to make
an informed decision about whether to purchase Celexa
and Lexapro for pediatric depression [and the] deception
directly caused an overvaluation of the drugs, which
resulted in payments for Celexa and Lexapro that, absent
the fraud and deception, would never have occurred.
Although a lack of information may otherwise be insufficient to
serve as a RICO injury, plaintiffs’ complaint also alleges that
Forest’s fraudulent scheme caused them
to pay for Celexa and Lexapro prescriptions in order to
treat children and adolescents for whom the drugs had
been shown to be ineffective and unsafe.
Plaintiffs’ allegations of the drugs’ ineffectiveness are,
however, contradicted, in part, by their own admission that the
FDA approved Lexapro for the treatment of adolescent MDD in
2009.

The Court cannot therefore conclude that plaintiffs have

plausibly alleged that Lexapro is medically ineffective for
treating MDD in adolescents.

Because LoConte does not contend

that Lexapro was ineffective as to her son, her alleged RICO
injury is inadequate because it is akin to a lack of informed
decision before purchasing a product with undisclosed risks that
never appear. See In re Bridgestone/Firestone, Inc. Tires
Products Liab. Litig., 155 F. Supp. 2d 1069, 1092 (S.D. Ind.
2001) (rejecting the lack of informed decision as a RICO injury
for plaintiffs who purchased tires without being informed of the

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product defects because the safety risks never manifested
themselves).
Plaintiffs contend that their RICO injury is identical to
that in In re Neurontin Mktg. & Sales Practices Litig., 712 F.3d
51, 59 (1st Cir.) (“In re Neurontin - Aetna”) cert. denied sub
nom. Pfizer Inc. v. Kaiser Found. Health Plan, Inc., 134 S. Ct.
786 (2013), which affirmed the district court’s determination
that a TPP plaintiff’s payment for off-label prescriptions of a
drug that was ineffective for off-label indications was
sufficient evidence of economic injury.
The subject drug in In re Neurontin – Aetna and related
decisions is not, however, directly applicable to Lexapro
because the TPP plaintiffs in those cases proved their economic
injury by showing that the drug “was ineffective for the
promoted off-label uses, and the district court so found.” In re
Neurontin Mktg. & Sales Practices Litig., 712 F.3d 21, 47 (1st
Cir.) (“In re Neurontin – Kaiser”) cert. denied sub nom. Pfizer
Inc. v. Kaiser Found. Health Plan, Inc., 134 S. Ct. 786 (2013).
Here, LoConte has not adequately alleged that Lexapro is
ineffective for the treatment of adolescent MDD in light of the
FDA’s approval for such an indication.
The Court’s conclusion in its December, 2014 Memorandum &
Order that the TPP plaintiff alleged a RICO injury with respect
to reimbursements of Lexapro prescriptions is also
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distinguishable.

Because TPPs reimburse for a large number of

prescriptions, at least some economic injury can be presumed at
the motion to dismiss stage if a drug has conflicting efficacy
study results and has not been proven to be effective for every
single one of their insureds. See In re Neurontin – Aetna, 712
F.3d at 59 n.6 (rejecting the argument that a TPP has the burden
of proving that none of its members received any benefit from
the drug in order to support a claim of injury).

For individual

consumers, however,
a plaintiff who is fraudulently induced to enter into a
transaction does not suffer injury within the meaning of
§ 1964(c) until the defendant fails to perform—that is,
until it becomes clear that the plaintiff will not get
the benefit of the bargain.
Maio, 221 F.3d at 490 (citation omitted).

LoConte has not

alleged that the drug was ineffective as to her and therefore
she lacks standing to pursue her RICO claims.
In contrast, the Court concludes that plaintiff Kiossovski
has adequately pled a RICO injury based on the purchase of an
ineffective drug because she has made sufficient allegations
that Celexa is ineffective for pediatric and adolescent MDD
indications.

If Celexa is found to be ineffective for such

indications, by definition it also would be ineffective as to
plaintiff’s daughter because any benefit due to the placebo
effect cannot be attributable to the drug itself. See In re
Neurontin – Kaiser, 712 F.3d at 48 (noting that a drug is
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ineffective when it is “no more effective than placebo for the
indications at issue”).
Accordingly, defendants’ motion to dismiss Counts I and II
will be allowed with respect to LoConte’s claims and denied as
to Kiossovski’s claims.
2.

Chapter 93A (Count III)

Chapter 93A proscribes “unfair methods of competition and
unfair or deceptive acts or practices” by those engaged in trade
or commerce and authorizes a business to sue another for
engaging in such practices. M.G.L. c. 93A §§ 2, 11.

To state a

claim under Chapter 93A, a plaintiff must allege that she 1)
suffered an economic injury 2) caused by 3) an unfair or
deceptive act or practice. Tyler v. Michaels Stores, Inc., 464
Mass. 492, 501-02 (2013).
LoConte alleges that her injury is the denial of “the
opportunity to make fully informed decisions” before purchasing
Lexapro and that she would not have bought the drug had she been
fully informed about the efficacy studies.

She contends that

this “informed choice” theory of injury is viable under
Massachusetts law and, in particular, Leardi v. Brown, 394 Mass.
151, 159 (1985), which states that the mere “invasion of any
legally protected interest of another” is a per se form of
injury under Chapter 93A.

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Later decisions by the Massachusetts Supreme Judicial Court
declined, however, to follow the Leardi holding and clarified
that
the fact that there is [] a violation [of a consumer’s
legal right] does not necessarily mean the consumer has
suffered an injury or a loss entitling her to at least
nominal damages and attorney's fees; instead, the
violation of the legal right that has created the unfair
or deceptive act or practice must cause the consumer
some kind of separate, identifiable harm arising from
the violation itself.
Tyler, 464 Mass. at 503; see also Rule v. Fort Dodge Animal
Health, Inc., 607 F.3d 250, 253-54 (1st Cir. 2010) (summarizing
cases).
LoConte must therefore plead an economic injury rather than
the “abstract” denial of opportunity to make an informed
decision, which she has failed to do. Rule, 607 F.3d 250, 253.
LoConte does not allege that she suffered any prior or potential
future harm from the Lexapro prescriptions or even that they
were ineffective for her son over the course of approximately
six years.
The First Circuit has rejected a similar consumer claim
brought by a plaintiff who purchased dog medicine and later
learned of risks that the manufacturer had concealed at the time
of her purchase. Rule, 607 F.3d 250, 251.

The plaintiff sought

to recover the difference between the price she paid for the
drug and its worth had the risks been disclosed but the court

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held that she failed to plead a cognizable injury under Chapter
93A because she received the benefit of the drug without
suffering its purported deficiencies. Id. at 254-55.
Decisions in other federal courts evaluating Chapter 93A
claims in the pharmaceutical context also suggest that
plaintiffs’ “informed choice” theory is not viable under
Massachusetts law. See, e.g., Sergeants Benevolent Ass'n Health
& Welfare Fund v. Sanofi-Aventis U.S. LLP, 2014 WL 1894303
(E.D.N.Y. May 12, 2014) (finding no compensable injury under
Chapter 93A even if doctors had not prescribed and plaintiffs
had not purchased the subject drug absent the alleged
misrepresentations).
Accordingly, Count III of plaintiffs’ complaint will be
dismissed.
3.

Washington Consumer Protection Act (Count IV)

To state a claim under the Washington CPA, a plaintiff must
allege 1) an unfair or deceptive act or practice, 2) occurring
in trade or commerce, 3) public interest impact, 4) injury to
plaintiff’s business or property and 5) causation. Hangman Ridge
Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash. 2d
778, 780 (1986); Wash. Rev. Code § 19.86.010 et seq.

Although

“the injury involved need not be great, or even quantifiable, it
must be an injury to business or property.” Ackley v. Sec. Life

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Ins. Co. of Am., 2014 WL 3767459, at *5 (W.D. Wash. July 31,
2014) (internal quotation and citation omitted).
Forest contends that Kiossovski cannot pursue a claim under
the CPA based on a lack of informed choice theory because it is
a “sort of mental injury that the CPA does not recognize,”
citing Brotherson v. Prof'l Basketball Club, L.L.C., 604 F.
Supp. 2d 1276, 1296 (W.D. Wash. 2009).

That same case suggests,

however, that plaintiff’s claim would survive a motion to
dismiss by alleging
evidence that there is a difference in the value of the
benefits [she] received and the value of the same
benefits accompanied by the disclosure
[of the
misrepresentations].
Id.

Kiossovski alleges that Forest’s “deception directly caused

an overvaluation of the drugs” and resulted in payments for
Celexa that would not have occurred otherwise.

She has

therefore sufficiently alleged an injury under the CPA.
Moreover, plaintiff has adequately pled causation because
she claims that Forest’s misrepresentations about the efficacy
of Celexa were made to all physicians and consumers and that
absent such fraud, she would not have purchased the drug.
The Court concludes that plaintiff has sufficiently alleged
a claim under the CPA.

Accordingly, defendants’ motion to

dismiss Count IV of the complaint will be denied.

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4.

Unjust enrichment (Count V)

Defendants contend that plaintiffs have failed to allege
that Forest received an unjust benefit at their expense because
plaintiffs benefited from the drug and were not injured by the
drug.

With respect to plaintiff LoConte, the Court agrees and

the motion to dismiss Count V as to her will be allowed.
Because plaintiff Kiossovski’s RICO and Washington CPA
claims remain viable, Count V as to Kiossovski will also survive
defendants’ motion to dismiss.

ORDER
For the foregoing reasons,
1)

defendants’ request for judicial notice (Docket No. 8)
is ALLOWED; and

2)

defendants’ motion to dismiss plaintiffs’ complaint
(Docket No. 11) is, with respect to Counts I, II, III
and V as to plaintiff LoConte (the RICO, Chapter 93A
and unjust enrichment claims as to plaintiff LoConte),
ALLOWED, but is otherwise DENIED. Counts I, II, IV
and V as to plaintiff Kiossovski survive defendants’
motion.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated June 15, 2015

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