PLUMBERS' LOCAL UNION NO. 690 HEALTH PLAN v. SANOFI-AVENTIS U.S., INC. et al
Filing
89
OPINION. Signed by Judge Kevin McNulty on 5/11/16. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PLUMBERS’ LOCAL UNION NO. 690
HEALTH PLAN,
No. 15-cv-956 (KM)(MAH)
Plaintiff,
OPINION
V.
SANOFI, S.A., SANOFI US SERVICES
INC., SANOFI-AVENTIS U.S., LLC,
GENZYME CORPORATION, FIDIA
FARMACEUTICI S.P.A., FIDIA PHARMA
USA INC., ACCENTURE PLC (ACN),
DELOITTE LLP, CHRISTOPHER A.
VIEHBACHER, DENNIS URBANIAK,
RAYMOND GODLESKI, THOMAS C.
VALENTINE, DOE DEFENDANTS A-Z,
ABC CORPORATIONS AA-ZZ, AND
XYZ PARTNERSHIPS AND
ASSOCIATIONS AAA-ZZZ,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Plumbers’ Local Union No. 690 Health Plan (“Local 690”) brings a class
action suit against Sanofi US Services Inc., Sanofi-Aventis U.S., LLC (together
“Sanofi US”), Sanofi, S.A. (together with Sanofi US, “Sanofi”), Genzyme
Corporation,’ Fidia Farmaceutici S.p.A. (“Fidia Italy”), Fidia Pharma USA Inc.
(“Fidia USA”; together with Fidia Italy, “Fidia”), Accenture PLC (ACN), Deloitte
LLP, Christopher A. Viehbacher, Dennis Urbaniak, Raymond Godleski, and
I The 1AC defines “Sanofi” as including “Sanofi, Sanofi US and Genzyme.” Many
of the relevant allegations date from before Sanofi acquired Genzyme in 2011. (See
1AC ¶j 16, 19, § IV). I have attempted to parse the various uses of “Sanofi” in the 1AC
to give the allegations their intended meaning.
1
Thomas C. Valentine. The suit complains of two separate schemes, both
allegedly harming Local 690 in New Jersey and Pennsylvania: (a) all Sanofi
defendants, both Fidia defendants, Genzyme, and the individual defendants
allegedly provided free samples of the drugs Hyalgan and Synvisc to doctors
and providers to convince them to buy and administer these drugs, resulting in
higher reimbursement costs for Local 690 and the rest of the class; and 2) all
Sanofi defendants, Viehbacher, Urbaniak, and Godleski, allegedly entered into
contracts with Deloitte and Accenture that appeared proper, but were in fact
kickbacks to induce them to cause retail pharmacies to switch to Sanofi
diabetes drugs.
This matter comes before the Court on seven motions to dismiss:
1.
A motion to dismiss the original complaint (ECF No. 1) by Sanofi US,
Viehbacher, Urbaniak, and Godleski (ECF No. 7).
2.
A motion to dismiss the first amended complaint (“1AC” (ECF No. 9)) by
Sanofi US, Genzyme, Viehbacher, Urbaniak, and Godleski
3.
A motion to dismiss the 1AC by Deloitte (ECF No. 36).
4.
A motion to dismiss the 1AC by Accenture (ECF No. 37).
5.
A motion to dismiss, joining the previous motions to dismiss the 1AC, by
Valentine (ECF No. 49).
6.
A motion to dismiss the 1AC by Fidia USA (ECF No. 50).
7.
A motion to dismiss the 1AC by Sanofi, S.A., for lack of personal
jurisdiction under Fed R. Civ. P. 12(b)(2) (ECF No. 63).2
I DENY the motion to dismiss the original complaint because it was
mooted by the filing of the 1AC. I also DENY the motion of Sanofi, S.A., to
dismiss on grounds of lack of personal jurisdiction, because it cannot be
determined from the pleadings and I currently lack the necessary additional
information. I GRANT the remaining motions to dismiss because Local 690
Fidia Italy is the only named defendant not to file a motion to dismiss or
otherwise respond to the 1AC.
2
2
fails to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Reviewing the
complaint, I find that it does not set forth facts sufficient to make out a
plausible claim for relief against the defendants. I do not reach the other
proffered bases for dismissing the 1AC.
The defects I have identified are not necessarily fatal. These dismissals
are therefore without prejudice to the filing of a Second Amended Complaint
within 60 days. If this misconduct occurred, and if it affected Local 690 and its
beneficiaries in New Jersey and Pennsylvania, it should be possible through
reasonable investigation to uncover specific facts and examples of it.
3
BACKGROUND
I.
A. Parties
1. Plaintiff
Local 690, which is located in Pennsylvania, is a third party payor (“TPP”)
that reimburses its members for the cost of drugs. (1AC
¶J
3, 5). The relevant
Local 690 members who purchase the drugs are confined to New Jersey and
Pennsylvania. (1AC
¶
5)
2. Defendants
1.
Sanofi S.A. is a French corporation headquartered in Paris. (1AC
7) It is
¶
a pharmaceutical company that manufactures, markets, and sells
prescription pharmaceuticals. (1AC
2.
¶
8)
Sanofi US Services Inc., is a wholly owned subsidiary of Sanofi, S.A.,
incorporated in Delaware and headquartered in New Jersey. (1 AC
¶
10) It
conducts business throughout the United States for Sanofi, S.A. (1AC
9, 15)
The facts that follow are taken from the complaint. They are assumed to be
true solely for the purposes of the motion to dismiss.
3
¶J
3.
Sanofi-Aventis U.S., LLC, is a wholly owned subsidiary of Sanofi, S.A.,
headquartered in New Jersey (1AC
United States for Sanofi, S.A. (1AC
4.
¶ 11)
¶J 9,
It conducts business in the
15)
Fidia Farmaceutici S.p.A., is an Italian corporation headquartered in
Italy. (1AC
¶
20) It owned the rights to the drug Hyalgan, and until 2011
it licensed to Sanofi, S.A. the right to market Hyalgan in the U.S. (1AC ¶j
21—22)
5.
Fidia Pharma USA Inc. is a wholly owned subsidiary of Fidia Italy,
incorporated in Delaware and headquartered in New Jersey. (1AC
6.
¶
23)
Genzyme Corporation is a biotech company, headquartered in
Massachusetts, that was acquired by Sanofi, S.A. in 2011. (1AC
¶
16)
Genzyme manufactures, markets, and sells Synvisc, a competitor drug of
Hyalgan. (1AC
7.
¶J
18, 57)
Accenture PLC (ACN) is an Irish corporation headquartered in Ireland
that provides consulting services globally. (1AC ¶j 2 5—26) Accenture
maintains two New Jersey offices. (1AC
8.
¶
Deloitte LLP is headquartered in New York and provides various services
through its wholly own subsidiaries. (1AC
9.
¶
31)
Christopher Viehbacher was CEO of Sanofi, S.A., from 2008 until 2014.
(1AC
¶
32) He resided during the relevant period in France and
Massachusetts. (1AC
10.
29)
¶
34)
Dennis Urbaniak “was employed by Defendants as the Vice President of
the U.S. diabetes business unit” and resided in New Jersey during the
relevant period. (1AC
11.
¶J
35, 37)
Raymond Godleski “was employed by Defendants as the Assistant Vice
President of Special Projects and worked as a supervisor in the U.S.
diabetes marketing unit” and resided in New Jersey during the relevant
period. (1AC
12.
¶J
38, 40)
Thomas C. Valentine is a former Sanofi sales representative and manager
who resides in California. (1AC
¶
41)
4
B. Facts
Local 690 alleges two separate fraudulent practices: (1) an illegal scheme
regarding samples of Hyalgan and Synvisc; and (2) illegal contracts with
Accenture and Deloitte to persuade pharmacies to switch to Sanofi diabetes
drugs.
1. Samples of Hyalgan and Synvisc
Hyalgan and Synvisc are injectable drugs used to relieve osteoarthritis
pain. (1AC
¶J
61, 63, 67) Osteoarthritis particularly affects persons such as
members of Local 690, who perform physical work. (1AC
¶
64) The Sanofi
defendants marketed and sold Hyalgan, under a license from Fidia Italy,
beginning in 1997. (1AC
¶J
68—70) Fidia had an advisory role in marketing
Hyalgan, including sampling strategy and procedure, but it assumed the role of
direct marketer and distributor in 2011. (1AC
¶J
70—71) Synvisc was owned,
marketed and sold by Genzyme from 2005 until Sanofi acquired Genzyme in
2011. (1AC
¶J
16—18, 72) Hyalgan and Synvisc are sold directly to doctors who
administer them and then bill for the drug and their service. (1AC
¶J
77—78)
From 2005 to 2009 Medicare and Medicaid calculated reimbursement
rates based in part on average sales prices (“ASP”) reported by the drug
companies. (1AC
¶J
74, 79) For TPPs like Local 690, Sanofi tied the price of
Hyalgan to the Medicare reimbursement rates. (1AC
¶
123) Local 690 was also
responsible for a 20% co-insurance payment when Medicare reimbursed the
doctor for Hyalgan and Synvisc. (1AC
¶
124) Companies were required to factor
discounts and free goods into their ASP calculations. (1AC
¶J
75—76)4 If
reported ASPs were not taking into account the provision of free goods, the
Local 690 provides a simplified example: If 10 units of a drug were sold for
$1000 but one extra unit were thrown in for free, this would be treated as the
equivalent of a sale of 11, not 10, units. Thus the company would have to report an
ASP of $90.91, not $100. (See 1AC ¶ 76.)
5
result would be that Medicare and its co-payers paid an inflated price for the
drug. (1AC
¶
83)
From 2005 to 2009 Sanofi sales representatives distributed 168,000
samples of Hyalgan, but the company did not track the distribution of samples.
(1AC ¶j 91—92) For much of that time, Medicare assigned Hyalgan the same
reimbursement code as a lower-cost competitor, Supartz; as a result, Supartz
offered doctors higher profits. (1AC
¶J
84—85) To redress that competitive
disadvantage, a Sanofi sales manager directed sales representatives to “use
[Hyalgan] samples as a negotiating tool,” and Sanofi sales representatives
promoted the “value add” of Hyalgan samples to their physician customers.
(1AC
¶J
90, 93—94)
The 1AC alleges that
“[ut is believed and therefore averred that Genzyme
acted similarly with respect to Synvisc.” (1AC
¶
96)
The 1AC alleges upon information and belief that, between 2005 and
2009, Sanofi’s sales force used free samples to promote purchases in
California, New York, Texas, Rhode Island, North Carolina, Indiana, Florida,
and Georgia. (1AC
¶
97) In one example from California, the amount of free
samples was explicitly reduced in connection with Sanofi’s reduction of the
price of Hyalgan. (1AC
¶
97(a)) Each sample, if not properly reflected in the
ASP, was worth between $70 and $100 under federal health care programs,
and possibly more under private reimbursement. (1AC
¶
99)
In August 2005, Sanofi sales representatives received training that
included a description of the prosecution of TAP Pharmaceuticals for its misuse
of samples. (1AC
¶
103) The sales persons were instructed to be careful
regarding samples. They were told that they would be protected if they told
physicians not to bill for the samples, and that samples were to be used for
trials and indigent patients. (Id.) Sanofi sales representatives allegedly ignored
the lessons of TAP and provided free samples to physicians as a means of
gaining and maintaining business for Hyalgan. (1AC
¶
110) Sanofi required its
sales representatives to inform physicians about securing reimbursement for
6
Hyalgan. (1AC
¶
126) Sanofi also provided a hotline and a website for doctors
needing further resources. (1AC
¶
129)
The 1AC alleges throughout that Sanofi representatives knew about or
even prompted doctors to bill Medicare, private insurers, and consumers for
free samples. The 1AC alleges that Fidia, Sanofi, and Genzyme knowingly
through their free samples practice caused doctors to falsely certify to federal
health care programs that their drug purchases were not influenced by illegal
financial inducements. (1AC
¶J
198—200) The 1AC also alleges that Fidia,
Sanofi, and Genzyme provided doctors with large amounts of free samples of
Hyalgan and Synvisc to effectively lower the cost of the drugs and thus give
providers an incentive to choose these drugs. (1AC
¶
201) The 1AC alleges
generally that Local 690 paid for injections of Hyalgan and Synvisc. The only
specific example given is that of an unnamed beneficiary who “appears to have
been switched” from Synvisc to Hyalgan. (1AC
¶
175)
In December 2012, Sanofi settled a False Claims Act suit with the United
States based on the alleged practice of giving free samples of Hyalgan. (1AC
¶
202) In June 2013, Valentine entered into an agreement with the United
States Department of Health and Human Services (“HHS”) Office of the
Inspector General (“OIG”) debarring him from participation in federal health
care programs for five years because of his involvement as a district sales
manager in the alleged free samples practice. (1AC ¶j 42, 205)
2. Diabetes Drugs
Sanofi competes with other pharmaceutical companies in the diabetes
drug market. (1AC ¶j 131—34) During the relevant time period, Sanofi was
required to comply with the federal health care laws, including the Anti
kickback law, codified in 42 U.S.C.
§
1320, et seq. (1AC
¶
135) From 2012
through 2013, Sanofi, through Viehbacher, Urbaniak, and Godleski, allegedly
contracted with Accenture and Deloitte to cause retail pharmacies, like
Walgreens and Rite Aid, to switch from competitors’ diabetes drugs to those of
Sanofi. (1AC
¶
140) Sanofi, through Viehbacher, Urbaniak, and Godleski,
7
miscoded these contracts in their internal systems to get them past legal
review. (1AC
¶
144)
For example, in 2012, nearly $3 million of contracts between Sanofi and
either Accenture or Deloitte were allegedly miscoded as “printed materials”
upon orders by Godleski. Local 690 alleges that each of those contracts
actually was an “illegal kickback” intended to induce the other party “to have
pharmacy prescriptions switched from other manufacturers’ drugs to Sanofi
drugs.” (1AC
¶
145(b—c)) Further, in January 2013, Urbaniak allegedly
instructed Sanofi employees to miscode $2 million of contracts as
“communication agency technical costs.” Local 690 alleges that these contracts
were actually between Sanofi and Waigreens, and were intended to induce
Waigreens “to improperly switch prescriptions for other manufacturer’s drugs
to Sanofi drugs.” (1AC
¶
145(a))
In March 2013, a paralegal named Diane Ponte allegedly discovered some
nine contracts, totaling $34 million, with either Accenture or Deloitte, allegedly
for the purpose of having them induce pharmacies to switch prescriptions.
(1AC
¶J
147—48) Godleski directed Ponte to approve the contracts, informed
her that Viehbacher and Urbaniak knew that she was delaying their approval,
and told her that Viehbacher was extremely unhappy about the delay. (1AC
¶
156) In December 2014, Ponte filed a whistleblower suit against Sanofi in
Superior Court, Essex County, describing the contract scheme and alleging
that she was fired for bringing it to light. (1AC
¶
204)
Local 690 alleges on information and belief that in October 2009 one
beneficiary’s diabetes medication was switched to a Sanofi drug at an increased
cost to Local 690. (1AC
¶
177) Similarly, Local 690 believes that in June 2011
one beneficiary’s diabetes medication was switched to a Sanofi drug at an
increased cost to Local 690 of $223.64. (1AC
¶
176)
A Sanofi internal investigation allegedly revealed that the contracts were
improperly signed and executed prior to receiving approval, and that the
“contracts failed to comply with Sanofi’s internal policies, and provided
improper incentives and kickbacks from Sanofi to Accenture and Deloitte, to
8
cause pharmacy prescription switches.” (1AC
¶ 161) During the investigation
Urbaniak and Godleski retired from Sanofi, and Urbaniak joined Accenture.
(1AC
¶ 164) Sanofi terminated Viehbacher as CEO in October 2014. (1AC ¶
168)
C. Claims
Local 690 asserts five claims for relief against the defendants:
1.
violations of New Jersey’s Consumer Fraud Act, N.J.S.A.
(1AC
2.
§ 56:8—1, et seq
¶{ 228—43);
violations of Pennsylvania’s Unfair Trade Practices and Consumer
Protection Law, 73 P.S.
a. 73 P.S.
§ 201—1, et seq (1AC ¶j 244—57), specifically:
§ 201-2(4)(ii) (causing confusion about the source of a good
or service),
b. 73 P.S. §201-2(4)(v) (making misrepresentations about a good or
service),
c. 73 P.S.
§ 201-3(4)(ix) (advertising a good or service with intent to
sell them not as advertised),
d. 73 P.S.
§ 201-2(4)(xi) (misrepresenting the reasons for price
reductions),
e. 73 P.S.
§ 201-2(4)(xii) (offering to pay a buyer for a contract for
goods or services when such compensation is contingent on the
occurrence of a subsequent event),
f.
73 P.S.
§ 201-2(4)(xxi) (any other deceptive conduct (“catchall
provision”));
¶J 258—66);
3.
unjust enrichment (1AC
4.
disgorgement (1AC
5.
conspiracy, concert of action, or aiding and abetting (1AC
¶J 267—75); and
9
¶J 276—86).
II.
APPLICABLE STANDARDS
A. The New Jersey and Pennsylvania Consumer Statutes
Local 690 alleges that the two schemes—i.e., the free samples scheme
and the diabetes drug scheme—affected its beneficiary members in the states
of New Jersey and Pennsylvania. It brings its claims primarily under the New
Jersey Consumer Fraud Act (“NJCFA”) and the Pennsylvania Unfair Trade
Practices and Consumer Protection Law (“UTPCPL”).
The NJCFA affords a private right of action to consumers who have
suffered unconscionable or fraudulent practices in the marketplace. It is to be
liberally construed in favor of the consumer, see Cox v. Sears Roebuck & Co.,
647 A.2d 454, 460—6 1 (N.J. 1994), and “applied broadly in order to accomplish
its remedial purpose,” Gonzalez v. Wilshire Credit Co?p., 25 A.3d 1103, 1114—15
(N.J. 2011). See also Gennari v. Weichert Co. Realtors, 691 A.2d 350, 364 (N.J.
1997).
To state a prima facie case under the NJCFA a plaintiff must allege three
elements: “(1) unlawful conduct by the defendant; (2) an ascertainable loss by
the plaintiff; and (3) a causal connection between the defendant’s unlawful
conduct and the plaintiffs ascertainable loss.” Bosland v. Wamock Dodge, Inc.,
964 A.2d 741, 749 (N.J. 2009) (citations omitted).
Local 690 also alleges that the defendants have violated the Pennsylvania
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”).
The Consumer Protection Law defines “unfair methods of
competition” and “unfair or deceptive acts or practices” in the
conduct of trade or commerce, and declares them to be unlawful.
73 P.S. § 20 1—3. The statute creates a private right of action in
persons upon whom unfair methods of competition and unfair or
deceptive acts or practices are employed and who as a result,
sustain an ascertainable loss. 73 P.S. § 20 1—9.2. The Consumer
Protection Law lists specific unfair methods of competition and
unfair or deceptive acts or practices, and includes a catchall
provision. 73 P.S. § 201—2(4)(i)—(xvii).
Toy v. Metro. Life Ins. Co., 928 A.2d 186, 191 n.4 (Pa. 2007); accord Hunt v. U.S.
Tobacco Co., 538 F.3d 217, 221 (3d Cir. 2008).
10
“To bring a private cause of action under the UTPCPL, a plaintiff must
show that he justifiably relied on the defendant’s wrongful conduct or
representation and that he suffered harm as a result of that reliance.” Yocca v.
Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 501, 854 A.2d 425, 438 (2004);
accord Milliken v. Jacono, 628 Pa. 62, 72, 103 A.3d 806, 812 (2014), as
modified on reconsideration (Nov. 12, 2014); see also Hunt, 538 F.3d at 221.
B. 12(b)(6) Motions to Dismiss
Defendants move to dismiss the complaint for failure to state a claim
under Fed. R. Civ. P. 12(b)(6). To state a valid claim for relief under Rule
12(b) (6), the complaint must contain: (1) a short and plain statement of the
grounds for the court’s jurisdiction; (2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a demand for the relief
sought. Fed R. Civ. P. 8(a).
For the purposes of a motion to dismiss, the facts alleged in the
complaint are accepted as true and all reasonable inferences are drawn in favor
of the plaintiff. N.J. Carpenters & the Trs. Thereof V. Tishman Const. Corp. of
N.J., 760 F.3d 297, 302 (3d Cir. 2014). Fed. R. Civ. P. 8(a) does not require that
a complaint contain detailed factual allegations. Nevertheless, “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555, 127
S. Ct. 1955, 1964—65 (2007). Thus, the complaint’s factual allegations must be
sufficient to raise a plaintiff’s right to relief above a speculative level, so that a
claim is “plausible on its face.” Id. at 555, 570; see also W. Run Student Hous.
Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 169 (3d Cir. 2013).
From the seminal modern cases of Bell Ati. Corp. v. Twombly, 550 U.S.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Third Circuit
has extracted a three-step process for reviewing a complaint:
To determine whether a complaint meets the pleading standard,
our analysis unfolds in three steps. First, we outline the elements
a plaintiff must plead to a state a claim for relief. See [Iqbal, 556
11
U.S.] at 675; Argueta [v. U.S. Immigration & Customs Enf’t, 643
F.3d 60, 73 (3d Cir. 2011)]. Next, we peel away those allegations
that are no more than conclusions and thus not entitled to the
assumption of truth. See Iqbal, 556 U.S. at 679; Argueta, 643 F.3d
at 73. Finally, we look for well-pled factual allegations, assume
their veracity, and then “determine whether they plausibly give rise
to an entitlement to relief.” Iqbal, 556 U.S. at 679; Argueta, 643
F.3d at 73. This last step is “a context-specific task that requires
the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
C. Rule 9(b) Heightened Pleading Standard for Fraud
For claims of fraud, Federal Rule of Civil Procedure 9(b) imposes a
heightened pleading requirement, over and above that of Rule 8(a). Specifically,
it requires that “in all averments of fraud or mistake, the circumstances
constituting the fraud or mistake shall be stated with particularity.” Fed. R.
Civ. P. 9(b). “Malice, intent, knowledge, and other conditions of a person’s
mind,” however, “may be alleged generally.” Id. That heightened pleading
standard requires the plaintiff to “state the circumstances of the alleged fraud
with sufficient particularity to place the defendant on notice of the precise
misconduct with which it is charged.” Frederico v. Home Depot, 507 F.3d 188,
200 (3d Cir. 2007) (internal quotation marks and citations omitted).
In general, “[t]o satisfy this [heightened] standard, the plaintiff must
plead or allege the date, time, and place of the alleged fraud or otherwise inject
precision or some measure of substantiation into a fraud allegation.” Id.
“Plaintiff must also allege who made the misrepresentation to whom and the
general content of the misrepresentation.” Lum v. Bank of Am., 361 F.3d 217,
224 (3d Cir. 2004) (internal citation omitted); In re Suprema Specialties, Inc.
Sec. Litig., 438 F.3d 256, 276—77 (3d Cir. 2006) (“Rule 9(b) requires, at a
minimum, that plaintiffs support their allegations of fraud with all of the
essential factual background that would accompany the first paragraph of any
newspaper story—that is, the who, what, when, where and how of the events at
issue.” (internal quotation marks and citations omitted)).
12
The purpose of Rule 9(b) is to provide notice of the precise
misconduct with which defendants are charged and to prevent
false or unsubstantiated charges. Courts should, however, apply
the rule with some flexibility and should not require plaintiffs to
plead issues that may have been concealed by the defendants.
Rob v. City Investing Co. Liquidating Trust, 155 F.3d 644, 658 (3d Cir. 1998)
(internal quotation marks and citations omitted).
In cases of corporate fraud, the particularity requirement can be relaxed
for information peculiarly in the corporation’s control, but a plaintiff still must
allege that facts pleaded based on information and belief are in the exclusive
control of a defendant and “must accompany such an allegation with a
statement of facts upon which their allegation is based.” Shapiro v. UJB Fin.
Corp., 964 F.2d 272, 285 (3d Cir. 1992); see also Zavala v. Wal-Mart Stores,
Inc., 393 F. Supp. 2d 295, 314 (D.N.J. 2005), aff’d sub nom. Zavala v. WalMart
Stores Inc., 691 F.3d 527 (3d Cir. 2012).
“[A] complaint must delineate at least the nature and scope of
plaintiffs’ effort to obtain, before filing the complaint, the
information needed to plead with particularity. This requirement is
intended to ensure that plaintiffs thoroughly investigate all
possible sources of information, including but not limited to all
publicly available relevant information, before filing a complaint.
Shapiro, 964 F.2d at 285.
NJCFA and UTPCPL both encompass fraud in the traditional sense, but
also a range of other deceptive or unconscionable practices. Rule 9(b)’s
heightened standard for pleading applies to a NJCFA claim, see Frederico, 507
F.3d at 200, 202—03, but only to the extent that the claim sounds in fraud.
“Some claims under the CFA may not require pleadings complying with Rule
9(b). Not every such claim involves an affirmative misrepresentation or material
omission.” Smajlaj v. Campbell Soup Co., 782 F. Supp. 2d 84, 98 n.9 (D.N.J.
2011). Similarly, when a claim under the UTPCPL is based on fraudulent
representations, Rule 9(b)’s heightened standard for pleading applies, but if it
is based upon other conduct, Rule (9)(b) does not apply. See Belmont v. MB mu.
Partners, Inc., 708 F.3d 470, 498 n.33 (3d Cir. 2013).
13
D.
Application
The defendants characterize Local 690’s NJCFA and UTPCPL claims as
fraud claims, and ask the Court to apply the heightened pleading standard of
Rule 9(b) to the 1AC. (See e.g., Deloitte Br. 6—7 (ECF’ No. 36—1)) Local 690
agrees in part, but states that at least some parts of their claims do not sound
in fraud, and therefore should not be judged by Rule 9(b) standards. (See e.g.,
Local 690 Opp. to Deloitte and Accenture MTD 21 (ECF No. 51 at 25)) The
complaint leaves its options open; it does not come down clearly on one side or
the other.
The gravamen of the Hyalgan and Synvisc claim is that providers, with
the participation of some of the defendants, are misrepresenting the true cost
of Hyalgan and Synvisc in order to receive higher payments from Local 690. To
some degree, and perhaps primarily, this is a scheme involving
misrepresentation, false statements, and deception. Counts 1 and 2 also allege,
however, that the same conduct constituted unlawful conduct or an
unconscionable business practice. The diabetes medication claim is more
difficult to characterize, perhaps because its nature is less clearly defined. It
appears, however, that false statements were made about the contracts to
conceal their true nature (i.e., that they allegedly functioned as kickbacks).
To the extent the schemes rest on falsehoods or misrepresentations—
e.g., about the true price of the drugs, about the nature of the contracts, or the
bonafides of the pharmacies’ prescription practices—I believe they sound in
fraud. To that extent I will apply Rule 9(b). See Smajlaj, 782 F. Supp. 2d at 98
n.9; Belmont, 708 F.3d at 498 n.33. To the extent the claims may be viewed in
the alternative as alleging, e.g., regulatory violations or unconscionable
business practices, they would fall under the ordinary Rule 8(a) standard. I will
therefore, in the course of the analysis, advert to both standards.
14
III.
ANALYSIS
The 1AC alleges two broad schemes: the first involves free samples of
Hyalgan and Synvisc, and the second involves inducements to switch to
Sanofi’s diabetes drugs. The 1AC fails to allege certain crucial specifics of those
schemes. Even more critically, it fails to allege facts sufficient to link those
schemes to any adverse effect on Local 690 or its members in Pennsylvania and
New Jersey. Thus I dismiss the 1AC without prejudice, for failure to state a
claim.
1. Free Samples of Hyalgan and Synvisc
i.
The Sanofi defendants
Setting aside merely conclusory allegations, see Bistrian, supra, I find
that Local 690’s factual allegations against the Sanofi defendants regarding the
free-samples scheme are meager. Here is a summary:
•
From 2005 to 2009 Sanofi sales representatives distributed 168,000
samples of Hyalgan in the U.S., but did not track the sales force’s use of
those samples. (1AC ¶j 91—92)
•
Companies were required to factor discounts and free goods into their
ASP calculations. (1AC
•
¶J
75—76)
In an effort to remedy a competitive disadvantage in price, a Sanofi sales
manager directed sales representatives to “use samples as a negotiating
tool,” and Sanofi sales representatives did promote the “value add” of
samples. (1AC
•
VT
90, 93—94)
Upon information and belief, between 2005 and 2009 Sanofi’s sales force
promised free samples with purchases in California, New York, Texas,
Rhode Island, North Carolina, Indiana, Florida, and Georgia. (1AC
•
¶
97)
Sanofi required its sales representatives to inform physicians about
reimbursement for Hyalgan and related administrative procedures. (1 AC
¶
126) Sanofi also provided a hotline and a website for doctors needing
further assistance. (1AC
¶
129)
15
•
The price charged TPPs for Hyalgan was tied by a formula to the
Medicare reimbursement rates. (1AC
¶
123) Local 690 was also
responsible for a 20% co-insurance payment when Medicare reimbursed
the doctor for Hyalgan and Synvisc. (1AC
•
¶
124)
Local 690 paid for injections of Hyalgan and Synvisc. One of its
beneficiaries was switched from Synvisc to Hyalgan. (1AC
•
¶
175)
In December 2012, Sanofi settled a False Claims Act suit with the United
States based on the alleged practice of giving free samples of Hyalgan.
(1AC
¶
202) In 2013, Valentine settled a case brought by HHS’s OIG
regarding his role as a district sales manager in the alleged free sample
practice. (1AC
¶
205)
Before setting the parties on a course of class action discovery and
litigation, I must be satisfied that a claim is adequately set forth. These
allegations lack the required specificity.
Local 690, in conclusory fashion, alleges that Sanofi helped physicians
illicitly bill Medicare for the free samples that Sanofi provided to those
physicians. (1AC
¶
101) Yet, the 1AC fails to explain the who, what, when,
where, and how of this scheme. See In re Suprema Specialties, 438 F.3d at 276—
77. Did doctors switch to a more expensive medicine and then bill Local 690?
Did doctors receive samples for free and then bill Local 690 for them? Did the
doctors accept free samples for permissible purposes (e.g., patient trials or
indigent patients) but then divert them? Or is Local 690 saying only that the
free samples had an indirect effect on the ASP, and hence the price? The
complaint alleges generally that certain activities were going on, but because
the 1AC contains no pertinent concrete facts, it is impossible to tell what is
being alleged factually.
Local 690 fails to actually allege that Sanofi overstated Hyalgan’s ASP to
Medicare, although the 1AC implies it.
16
Local 690 sues on behalf of its beneficiaries in New Jersey and
Pennsylvania. Fatally, however, the 1AC says nothing about this scheme as it
relates to New Jersey or Pennsylvania. It makes sweeping statements about the
general nature of Sanofi’s practices nationwide, but specifics are lacking. Local
690 alleges on “information and belief’ examples of individual Sanofi sales
representatives’ misuse of samples to promote Hyalgan to doctors in several
states. Yet these “information and belief’ allegations, even taken as true, do not
include the states of New Jersey or Pennsylvania. (1AC
¶ 97)
The 1AC fails to provide the necessary minimal support for its
information-and-belief allegations. See Shapiro, 964 F.2d at 285 (Rule 9(b)
requires plaintiffs to state, inter alia, the nature and scope of plaintiffs’ effort to
obtain, before filing the complaint, the information needed to plead with
particularity); see also Fed. R. Civ. P. 11, Notes of Advisory Committee on 1993
Amendments (pleading on information and belief “does not relieve litigants from
the obligation to conduct an appropriate investigation into the facts that is
reasonable under the circumstances; it is not a license to.. .make
claims.. .without any factual basis or justification”).
The 1AC does not provide any pertinent example—i.e., with dates,
dollars, or circumstances—of a New Jersey or Pennsylvania doctor’s billing or
mis-billing anyone (let alone billing Local 690) for a Hyalgan sample (let alone
one the doctor received for free) 6 Nor does Local 690 allege factually the
existence or amount of any payment that Local 690 would not have made but
for the alleged free sample scheme.
Local 690 cites Sanofi’s training of its sales representatives:
The sole allegation that Local 690 ever paid for a Hyalgan injection does not
advance its case. That beneficiary was allegedly switched from Synvisc to Hyalgan.
(1AC ¶ 175) Local 690 alleges, however, that Synvisc was subject to the same freesample practices as Hyalgan. (1AC ¶ 96) Switching between those two drugs, then,
does not support Local 690’s allegation that the switch was prompted by the practice
of giving free samples, or its allegation that it suffered a financial loss as a result of
paying for Hyalgan in this instance.
6
17
For example, on or about August 15-26, 2005, a Hyalgan sales
representative conducted a Phase II training and gave a PowerPoint
presentation advising the ISG sales representatives of the
government’s prosecution of TAP Pharmaceuticals for its misuse of
Lupron samples. The instructor training Sanofi’s ISG sales
representatives warned the ISO sales representatives to be
“careful” regarding the use of samples, and instructed them that
they would be “protected” as long as they told the physicians,
including the Doctor Defendants that (a) the samples were to be
used for patient trials and indigent patients, and (b) the
physicians, including the Doctor Defendants, were not supposed to
bill for the samples.
(1AC
¶
103) That training, says Local 690, demonstrates that Sanofi knew of
the illegality of the free sample practice, knew of the TAP prosecution, and yet
still employed free samples to promote sales of Hyalgan. (See 1AC
¶
110.) That
is a step too far. The training may support the minimal inference that Sanofi
was aware of the standards for proper use of free samples. It is illogical to infer,
however, that New Jersey and Pennsylvania sales representatives, because they
were trained in the proper use of samples, must therefore have engaged in the
improper use of samples. Rule 8(a) requires allegations “plausibly suggesting
(not merely consistent with)” wrongdoing, Twombly, 550 U.S. at 557, and Rule
9(b) requires even more specificity.
Also alleged “upon information and belief’ is the sales representatives’
encouragement of billing for free samples. And upon that shaky foundation,
Local 690 builds a still shakier edifice of “implicit” representations, a “notion”
that physicians would bill for free samples, and the doctors’ “frequent[”
commingling of free and purchased Hyalgan. (AC
¶
111)7 It is then alleged with
1AC Paragraph 111, in full, reads:
Indeed, upon information and belief, implicit within the ISO sale
representatives’ training and instruction to explain to physicians,
including the Doctor Defendants, that the free samples given would
reduce the cost of Hyalgan, was the notion that physicians, including the
Doctor Defendants, would bill for the free samples. Physicians’ offices,
including offices of the Doctor Defendants, frequently commingles the
18
certainty (i.e., not on information and belief) that this conduct (alleged on
information and belief) was “condoned by Sanofi.” (AC
¶
112) More is required
to bridge the gap between conceivability and plausibility.
From the 1AC, I cannot discern that Sanofi engaged in any allegedly
unlawful conduct that had any effect on Local 690 and its New Jersey or
Pennsylvania beneficiaries. Such allegations are essential to a valid claim
under NJCFA or UTPCPL. See
§
II.A, supra. The motion to dismiss is granted as
to Sanofi.
ii.
Fidia
The 1AC is devoid of specifics regarding Fidia. The only substantive
mentions of Fidia in the complaint are that:
72)
•
Fidia owned Hyalgan. (1AC
•
Fidia licensed Hyalgan to Sanofi (1AC
•
Fidia had an advisory role in marketing Hyalgan, including sampling
¶
¶J
21, 68)
strategy and procedure, until it assumed the role of direct marketer and
distributor in 2011. (1AC ¶j 70—71)
•
Fidia knowingly through its free samples practice caused doctors to
falsely certify to federal health care programs that their drug purchases
were not influenced by illegal financial inducements. (1AC
•
¶J
198—200)
Fidia provided doctors with free samples of Hyalgan and Synvisc to
effectively lower the cost of the drugs and thus induce providers to
choose these drugs. (1AC
¶
201)
These are conclusory allegations which lack any specific factual
allegations of fraudulent or deceptive action by Fidia. Fidia licensed Hyalgan to
Sanofi and allegedly knew about Sanofi’s acts or advised Sanofi, in some
free samples of Hyalgan provided by the ISG sales representatives with
the Hyalgan syringes that the offices had purchased.
19
unspecified way, regarding “strategy” relating to samples. There are no further
allegations as to Fidia’s role in any illicit action as it relates to Local 690. No
specific factual examples are given. There are no allegations showing that any
Local 690 beneficiary in Pennsylvania or New Jersey was affected. That Fidia
regained control of Hyalgan distribution in 2011 is irrelevant: the alleged time
period for the sampling infractions is 2005 to 2009. (See, e.g., 1AC
¶J
91—92)
These allegations do not state a valid claim for relief.
iii.
Genzyme
As to Genzyme, the 1AC’s “information and belief’ allegations are all
belief, and no information. The 1AC essentially alleges that Sanofi acted
wrongfully with respect to Hyalgan, and that “it is believed and therefore
averred” that Genzyme must therefore have done the same with respect to
Synvisc. (1AC
¶
96) There are no individualized allegations against Genzyme,
and the 1AC contains no facts as to Genzyme’s practices. Genzyme was not
acquired by Sanofi until 2011, well after the 2005—09 time period for the free
samples allegations. (1AC
¶
16) Local 690’s allegations against Genzyme do not
satisfy Rule 8(a), let alone Rule 9(b), and they fail to state a claim for relief.
iv.
Individual defendants
There are no pertinent factual allegations regarding Viehbacher,
Urbaniak, or Godleski as to the free samples scheme. Thus the complaint fails
to state a claim against them as to that scheme.
Local 690 alleges that Valentine, as a sales representative or sales
manager, delivered or supervised the delivery of samples of Hyalgan to doctors.
(1AC
¶J
42—43) These activities are alleged to have taken place only in
California, not New Jersey or Pennsylvania. (1AC
¶
41, 9 7(a)) There is no
allegation establishing Valentine’s connection to Local 690 or his relationship,
if any, with Pennsylvania or New Jersey.
In sum, the 1AC, insofar it alleges a scheme involving free samples of
Hyalgan and Synvisc, fails to state a claim under the NJCFA or UTPCPL
against any of the defendants.
20
2. Diabetes Drugs
The second scheme alleged is a kickback arrangement with Accenture
and Deloitte to induce pharmacies to switch from competitors’ diabetes drugs
to those of Sanofi. The factual allegations are skimpy. The allegations about
diabetes drugs mention the Sanofi defendants, Accenture, Deloitte, Viehbacher,
Urbaniak, and Godleski; I therefore confine my analysis to them.
Local 690 alleges that from 2012 through 2013, Sanofi (through
Viehbacher, Urbaniak, and Godleski) entered into contracts with Accenture
and Deloitte. The FAC specifically identifies twelve of these contracts. Three of
these, according to Local 690, were assigned misleading “spend categories” for,
e.g., “communication agency technical costs,” or “printed materials,” to help
elude detection. (AC
¶J
144, 145) The other nine were discovered during the
approval process by Diane Ponte, a former paralegal for Sanofi. (1AC ¶j 147—
157, 204) The true purpose of these contracts, however, was allegedly to cause
Accenture and Deloitte to induce retail pharmacies like Walgreens and Rite Aid
to switch from other manufacturer’s diabetes drugs to Sanofi’s diabetes drugs.
(1AC
¶
140) The upshot is that these contracts are alleged to be disguised
kickbacks.
Local 690’s allegations rest primarily on other allegations pleaded by
Ponte in a whistleblower suit in Superior Court, Essex County, New Jersey.
(See 1AC
¶J
147—157, 204; Local 690 Opp. to Sanofi US MTD 3, 9 (ECF No.
24)) Ponte allegedly discovered nine contracts with Accenture and Deloitte,
totaling $34 million, that were executed without approval by the normal
channels. (1AC
¶
149—50) Godleski allegedly directed Ponte to approve the
contracts, informed her that Viehbacher and Urbaniak knew that she was
delaying review, and told her that Viehbacher was extremely unhappy about it.
(1AC
¶
156) Ponte “determined” that the contracts were kickbacks. (1AC
¶
151)
A Sanofi internal investigation allegedly confirmed that certain contracts
were improperly signed and executed prior to receiving approval, and that the
“contracts failed to comply with Sanofi’s internal policies, and provided
21
improper incentives and kickbacks from Sanofi to Accenture and Deloitte, to
cause pharmacy prescription switches.” (1AC
¶ 161)8
Emblematic of the grounds for dismissal is Local 690’s request for
“disgorgement” of amounts that Sanofi paid to Accenture and Deloitte. This is
not a derivative suit brought by a Sanofi shareholder; surely Local 690 must be
required to allege some loss to itself or its members. That it fails to do.
8 There are problems with these allegations. Local 690 readily acknowledges
it is incorporating the allegations of Ponte. (Local 690 Opp. to Sanofi US MTD 3,
that
9) But Ponte herself pleads several of them “on information and belief’—a caveat that
somehow gets lost in translation to Local 690’s complaint. If Local 690 has a better
basis than Ponte for believing Ponte’s allegations to be based in fact, that basis does
not appear.
Local 690’s descriptions of the three contracts not discovered by Ponte, for
example, are identical to allegations in Pont&s complaint. (1AC ¶ 145) Local 690’s
complaint, however, omits the fact that Ponte alleged that the contracts were
kickbacks based on her “information and belief’ that other employees “including but
not limited to [Jan] Smith and [Jean] Kazmir” knew or believed they were kickbacks.
(Haviland Cert. Ex. D (“Ponte Complaint”) ¶ 77 (ECF No. 24—2)).
Ponte’s allegations regarding Sanofi’s internal investigation are likewise made
upon information and belief. (Ponte Complaint ¶J 97—106) Once again, Local 690
seemingly copies Ponte’s allegations, but drops her “information and belief’ caveat.
(1AC ¶J 160—62) Both Local 690 and Ponte, by the way, place the word “investigation”
in scare quotes, presumably to cast doubt upon it. They then allege, however, that the
investigation confirms their allegations. (Ponte Complaint ¶J 97—106; 1AC ¶J 160—62)
A related securities fraud complaint, substantially based on the whistleblower
allegations of Ponte, was itself dismissed for failure to state a claim. See In re Sanoji
No. 14—CV—9624, 2016 WL 93866, at *78 (S.D.N.Y. Jan. 6,
Sec. Litig., —F. Supp.
2016) (securities fraud claim based on allegations mirroring those of Ponte failed to
meet the particularity standards of Iqbal, Rule 9(b), and the PSLRA).The court in In re
Sanofi gave three examples of pleading deficiencies in allegations based on Ponte’s
complaint that are relevant here: 1) Ponte’s complaint alleges upon information and
belief that the miscoded contracts were illegal kickbacks between Sanofi and both
Deloitte and Accenture, which did not suffice under the PSLRA; 2) Ponte’s nine
contracts are not identified and no information is given as to why Ponte believed these
contracts to be for illegal kickbacks; 3) Ponte alleges that an internal investigation
confirmed her suspicion but alleges no other facts about that investigation. 2016 WL
93866, at *78. District Judge Castel, granting a motion to dismiss, held that “[w]hile
plaintiffs have plausibly alleged the existence of certain contracts, they have failed to
allege beyond a speculative level that those contracts amounted to illegal, fraudulent,
or otherwise improper conduct.” Id. at *7 (internal quotation marks omitted).
—‘
22
Local 690 does not plead any facts suggesting that this scheme, however
nefarious, had any effect upon itself or its members. The 1AC cites just two
examples of beneficiaries whose diabetes medications were switched: In
October 2009, one unnamed Local 690 beneficiary’s diabetes medication was
allegedly switched to a Sanofi drug at an increased cost to Local 690. (1AC
¶
177) Similarly, in June 2011, one unnamed Local 690 beneficiary’s diabetes
medication was switched to a Sanofi drug at an increased cost to Local 690 of
$223.64. (1AC
¶
176) These allegations, however, date from 2009 and 2011,
well before the 20 12—13 time period of the alleged kickback contracts. (1AC
¶
140, 176—77)
These 2009 and 2011 examples also lack essential details that would tie
them to the alleged kickback scheme. No pharmacy is specified. Nor is it
alleged factually that any such pharmacy dealt with Accenture or Deloitte. Nor
is it alleged that any such pharmacy served Local 690’s New Jersey and
Pennsylvania members. Indeed, the 1AC does not allege that either drug switch
was made by a pharmacy at all. The allegation is merely that the medication
“was switched”; a doctor, or the patient, could just as easily have been the
decision maker. Finally, these allegations are pleaded upon information and
belief, even though they relate to Local 690’s own beneficiaries. (1AC ¶j 176—
77)
What remains is a portmanteau allegation that some twelve contracts,
contents unknown, broke a number of rules and laws and constituted
improper kickbacks to induce Accenture and Deloitte to perform acts that may
or may not have occurred, and may or may not have affected Local 690 and its
members. As to the diabetes drug scheme, the 1AC fails to state a valid claim
for relief against any of the defendants under the NJCFA and UTPCPL.
D. Unjust Enrichment, Disgorgement and Conspiracy
Local 690’s remaining claims for unjust enrichment, disgorgement and
conspiracy must be dismissed. Unjust enrichment and disgorgement require a
properly pleaded claim that the defendants unjustly received a benefit from
23
Local 690 that in equity should be returned to Local 690. See, e.g., VRG Corp.
v. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 1994) (“To establish unjust
enrichment, a plaintiff must show both that defendant received a benefit and
that retention of that benefit without payment would be unjust.”); S.E.C. v.
Hughes Capital Corp., 124 F.3d 449, 455 (3d Cir. 1997) (“Disgorgement is an
equitable remedy designed to deprive a wrongdoer of his unjust enrichment
and to deter others from violating securities laws” (internal quotation marks
and citations omitted)). And a civil conspiracy claim requires a properly pleaded
unlawful act. See G.D. v. Kenny, 15 A.3d 300, 321 (N.J. 2011) (dismissing a
civil conspiracy claim where the plaintiff could not “establish that defendants
committed an unlawful act or a wrong against him that constitutes a tort
entitling him to a recovery.”).
For the reasons stated above, Local 690 has failed to plead an underlying
unjust or unlawful action resulting in a payment of money by Local 690 that it
is entitled to recover. It follows that Local 690 has failed to state a claim for
unjust enrichment, disgorgement, or conspiracy.
E. Defendants’ Other Arguments
Defendants’ motions assert a number of other arguments. I do not reach
them, but because I have granted leave to amend, I advert to them briefly for
the guidance of the parties, should any amended pleading be filed.
•
Fidia US argues that it was only incorporated in 2011, after the alleged
wrongful conduct. (Fidia US Br.
§ l.A (ECF No. 50—11)) The current
complaint does not actually specify the nature or dates of Fidia US’s
allegedly wrongful conduct.
•
Defendants argue that Local 690 is not a “consumer” under the NJCFA.
(See, e.g., Sanofi US Br.
•
§ Il.A (ECF No. 19—1))
Defendants argue that Pennsylvania’s economic loss rule bars any claim
under the UTPCPL. (See, e.g., Deloitte Br.
24
§ I.C.2);
•
Defendants argue that the Hyalgan claim is barred by a prior release or
res judicata. (See, e.g., Sanofi US Br. § 1)9
•
Accenture disputes basic matters relating to the existence and terms of
the contracts. (See Accenture Br. § I (ECF No. 37—1).) Resolution,
whether on a motion to dismiss or later, may require inspection of the
contracts themselves.
•
Sanofi, S.A., asserts that this court lacks personal jurisdiction over it.
(See, e.g., Sanofi, S.A. Br. (ECF No. 63—1).) Such issues are likely to
require jurisdictional discovery.
•
Defendants make a number of standing arguments as well.
I will put off deciding these issues until Local 690, if it chooses to do so,
submits a Second Amended Complaint, and its claims are more defined. Some
contentions may become moot, while others may require discovery or further
proceedings. For now, I dismiss the 1AC for failure to sufficiently plead a claim.
Releases and res judicata are matters for defense, and they rely on evidence
extrinsic to the current complaint. It is within my discretion under Rule 12(d) to
convert this motion to one for summary judgment under Rule 56. Campanello v. Port
Auth. of N.Y. & N.J., 590 F. Supp. 2d 694, 703 (D.N.J. 2008) (citing Kulwicki u.
Dawson, 969 F.2d 1454, 1463 n.h (3rd Cir.1991). I instead opt to await a second
amended complaint, if any.
9
25
IV.
CONCLUSION
The motion to dismiss the original complaint is DENIED because it was
mooted by the filing of the 1AC. The motion of Sanofi, S.A., to dismiss the
complaint for lack of personal jurisdiction is DENIED with leave to refile if a
Second Amended Complaint is filed and Sanofi, S.A., is still named as a
defendant. The remaining motions to dismiss are GRANTED because the First
Amended Complaint fails to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6).
This dismissal is without prejudice to the filing of a Second Amended
Complaint within 60 days.
Dated: May 11, 2016
(Hon. Kevin McNulty
United States District Judge
26
J
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