Apotex Corp. v. Hospira Healthcare India Private Limited

Filing 83

MEMORANDUM OPINION AND ORDER: For these reasons, and in light of the Florida authority cited above, the Court would dismiss Apotex's FDUTPA claims for lost-profit damages even if it were considering the issue on a blank slate; Apotex certainl y does not satisfy the standards applicable to a motion for reconsideration. See, e.g., In re Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543 (JMF), 2017 WL 3443623, at *1 (S.D.N.Y. Aug. 9, 2017). Accordingly, the Court clarifies (to the ex tent necessary) that Apotex's FDUTPA claims for lost-profit damages were and are dismissed, and Apotex's motion for reconsideration is DENIED. The Clerk of Court is directed to terminate Docket No. 75. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/13/2019) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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APOTEX CORP.,
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Plaintiff,
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-v:
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HOSPIRA HEALTHCARE INDIA PRIVATE LIMITED, :
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Defendant.
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18-CV-4903 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
On July 12, 2019, the Court entered an Opinion and Order dismissing Apotex Corp.’s
(“Apotex”) tort claims and claims for certain species of damages against Hospira Healthcare
India Private Limited (“Hospira”) from this case, familiarity with which is presumed. See
Apotex Corp. v. Hospira Healthcare India Private Ltd., No. 18-CV-4903 (JMF), 2019 WL
3066328 (S.D.N.Y. July 12, 2019); ECF No. 70. Apotex now moves for clarification or
reconsideration of one issue decided in that Opinion: whether it may recover lost profits as
“actual damages” under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla.
Stat. Ann. §§ 501.201 et seq. The Court held that it could not, Apotex Corp., 2019 WL 3066328,
at *9, and adheres to that holding on reconsideration.
Apotex acknowledges that FDUTPA limits recovery to “actual damages, plus attorney’s
fees and court costs,” Fla. Stat. Ann. § 501.211, and that “many courts construing FDUTPA have
held that ‘actual damages under FDUTPA must be measured as the difference in the market
value of the product or service in the condition in which it was delivered and its market value in
the condition in which it should have been delivered according to the contract of the parties.’”

ECF No. 76 (“Apotex Mem.”), at 2 n.2 (quoting Apotex Corp., 2019 WL 3066328, at *9).
Apotex argues that it should be permitted to maintain a lost-profits claim under FDUTPA,
however, because it is a business competitor seeking recovery for unfair trade practices, not a
deceived consumer seeking the benefit of its bargain. Id. at 2. In support of that argument,
Apotex relies principally on ADT LLC v. Alarm Protection Technology Florida, LLC, No. 1280898-CIV, 2013 WL 11276119 (S.D. Fla. Apr. 18, 2013). In that case, the court reasoned that
the “accepted definition of damages recoverable in a consumer’s FDUTPA claim” — set forth
above — “is meaningless in the context of a competitor’s claim” because a “competitor has not
purchased a worthless product, [it] has lost business and profits.” Id. at *5. The court therefore
concluded that “[a] competitor’s actual damages in a FDUTPA case are its ‘actual lost profits’
suffered by reason of the unfair trade practices.” Id.
The weight of authority is against ADT LLC and Apotex. Substantially for the reasons set
forth in Diversified Management Solutions, Inc. v. Control Systems Research, Inc., No. 1581062-CIV, 2016 WL 4256916, at *5-*6 (S.D. Fla. May 16, 2016), the Court concludes that
FDUTPA “actual damages” do not include lost profits even when sought by a competitor rather
than a consumer. Briefly stated, Diversified Management Solutions explains that Florida courts
long interpreted FDUTPA to exclude “consequential damages,” a limitation that applied to lost
profits, the “‘quintessential example’ of consequential damages.” Id. at *5 (quoting Nyquist v.
Randall, 819 F.2d 1014, 1017 (11th Cir. 1987)). 1 After the Florida legislature amended
FDUTPA’s cause of action in 2001 to extend to “person[s],” not just “consumer[s],” arguments

1

Apotex maintains that Nyquist is inapposite because it “was construing the common law
and not FDUTPA.” ECF No. 82 (“Reply”), at 10. But “actual damages” under FDUTPA “are
those damages recoverable at common law.” Rollins, Inc. v. Heller, 454 So. 2d 580, 585 (Fla.
Dist. Ct. App. 1984).

2

emerged — similar to the one Apotex presses here — that “because businesses can now pursue
damages under FDUTPA, the ‘actual damages’ case law from pre-2001 is no longer applicable
because the damages suffered by businesses from unfair competition will necessarily be in the
form of lost profits.” Id. The weight of subsequent authority has rejected that argument,
however, concluding that the 2001 FDUTPA amendment changed only who could sue under the
statute, not what they could recover. See id. at *6. 2 It thus “remains well-settled in Florida that
consequential damages in the form of lost profits are not recoverable under FDUTPA.” Five for
Entm’t S.A. v. Rodriguez, 877 F. Supp. 2d 1321, 1331 (S.D. Fla. 2012).
In light of that authority, the cases cited by Apotex, see Apotex Mem. 3-8, are
insufficient to tip the balance in its favor. First and foremost — and unmentioned by Apotex —
the Eleventh Circuit case upon which Apotex chiefly relies explicitly held that the defendant had
waived its objection to the lost-profit damages theory. Marco Island Cable v. Comcast
Cablevision of S., Inc., 312 F. App’x 211, 214 n.1 (11th Cir. 2009) (per curiam) (noting that the
defendant had “not properly presented for review” its argument that expert testimony as to lost
profits was “evidence of an incorrect measure of damages under the statute”). 3 It follows that

2

See, e.g., Krupa v. Platinum Plus, LLC, No. 8:16-CV-3189-T-33MAP, 2017 WL
1050222, at *7 (M.D. Fla. Mar. 20, 2017); ADT LLC v. Vivint, Inc. (“Vivint”), No. 17-CV-80432,
2017 WL 5640725, at *5 (S.D. Fla. Aug. 3, 2017); Casa Dimitri Corp. v. Invicta Watch Co. of
Am., Inc., 270 F. Supp. 3d 1340, 1352 (S.D. Fla. 2017); Diversified Mgmt. Sols., Inc., 2016 WL
4256916, at *6; BPI Sports, LLC v. Labdoor, Inc., No. 15-62212-CIV, 2016 WL 739652, at *6
(S.D. Fla. Feb. 25, 2016); Terrell v. DIRECTV, LLC, No. 12-81244-CIV, 2013 WL 451914, at *3
(S.D. Fla. Feb. 6, 2013); Five for Entm’t, 877 F. Supp. 2d at 1331.
3

The Court is unpersuaded by Apotex’s argument — made for the first time in its reply —
that Marco Island Cable actually approved the district court’s admission of lost-profits evidence.
See Reply 4. In any event, as unpublished Eleventh Circuit opinions go, the Court is more
persuaded by HRCC, Ltd. v. Hard Rock Cafe Int’l (USA), Inc., 703 F. App’x 814 (11th Cir.
2017) (per curiam), in which the court actually confronted — and squarely affirmed — the
district court’s holding that “Florida courts have limited damages under [FDUTPA] to direct
damages, not consequential damages in the form of lost profits,” and cited a prior precedential

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cases relying on Marco Island Cable for the proposition that FDUTPA recognizes lost-profit
damages are, without more, similarly unpersuasive. See, e.g., Apotex Mem. 5-6 (citing Delta Air
Lines, Inc. v. Network Consulting Assocs., Inc., No. 8:14-CV-948-T-24 TGW, 2014 WL
4347839 (M.D. Fla. Sept. 2, 2014); and PODS Enters., LLC v. U-Haul Int’l, Inc., 126 F. Supp.
3d 1263, 1286 (M.D. Fla. 2015)). So are the cases cited by Apotex that rely on Sun Protection
Factory, Inc. v. Tender Corp., No. 6:04-CV-732-ORL-19KRS, 2005 WL 2484710, at *13-*14
(M.D. Fla. Oct. 7, 2005), in which the court allowed a lost-profits claim to survive summary
judgment in a single conclusory sentence. See Apotex Mem. 6-7 (citing Glob. Tech. LED, LLC
v. Hilumz Int’l Corp., 2017 WL 588669, at *9 (M.D. Fla. Feb. 14, 2017); and Factory Direct
Tires Inc. v. Cooper Tire & Rubber Co., No. 3:11-CV-255-RV/EMT, 2011 WL 13117118, at *7
(N.D. Fla. Oct. 24, 2011)). 4 Indeed, even the ADT LLC case, which at least provides reasons for
including lost-profit damages as “actual damages” under FDUTPA, ultimately relies on
authorities that do not themselves contain any reasoning on that point. See ADT LLC, 2013 WL
11276119, at *5 (citing Stockwire Research Grp., Inc. v. Lebed, 577 F. Supp. 2d 1262, 1269
(S.D. Fla. 2008); and Sun Prot. Factory, Inc., 2005 WL 2484710, at *14). Finally, Hanson
Hams, Inc. v. HBH Franchise Co., LLC, No. 03-61198CIV, 2004 WL 5470401 (S.D. Fla. Dec.
21, 2004), addressed the issue only in dictum, id. at *9 (“Plaintiff does not seek lost profits
. . . .”), and although it cites an interesting critique of prevailing Florida law, see id. at *9 n.17

opinion reaching the same result, see id. at 815-16 (internal quotation marks omitted) (citing
Carriuolo v. Gen. Motors Co., 823 F.3d 977, 986 (11th Cir. 2016)).
4

By extension, the same is true of Diamond Resorts International, Inc. v. Aaronson, 371 F.
Supp. 3d 1088, 1115 (M.D. Fla. 2019), see Reply 8, which relies only on Factory Direct Tires.

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(citing David J. Federbush, Damages Under FDUTPA, Fla. B.J. (May 2004)), it is the prevailing
law, and not the critique, that this Court is bound to follow. 5
Contrary to the cases relied upon by Apotex, Florida law — while perhaps not fully
developed on this point — clearly weighs against the inclusion of lost profits in FDUTPA actual
damages. Florida courts have consistently held that, “under FDUTPA, the term ‘actual damages’
does not include special or consequential damages.” Rodriguez v. Recovery Performance &
Marine, LLC, 38 So. 3d 178, 180 (Fla. Dist. Ct. App. 2010) (citing Fla. Stat. Ann. § 501.212(3),
which excludes from FDUTPA’s cause of action “a claim for damage to property other than the
property that is the subject of the consumer transaction”). And Florida courts are similarly
consistent that, “[a]ccordingly, lost profits, the ‘quintessential example of consequential
damages,’ are not permitted.” Vivint, 2017 WL 5640725, at *5 (quoting Nyquist, 819 F.2d at
1017); see Stewart Agency, Inc. v. Arrigo Enters., Inc., 266 So. 3d 207, 214 (Fla. Dist. Ct. App.
2019) (noting that “entities frequently do not suffer actual damages from unfair and deceptive
practices of competitors. Instead, their damages are frequently special or consequential
damages, and thus, not compensable under [FDUTPA].”). Apotex’s argument — that the
FDUTPA amendment broadening the class of plaintiffs should be understood to have also
broadened the types of damages available — makes sense, but it is not logically compelled, and
no Florida state court (much less Florida’s highest court) has adopted it. “[T]he role of a federal

5

In its reply, Apotex also cites Allergan USA, Inc. v. Prescribers Choice, Inc., 364 F.
Supp. 3d 1089 (C.D. Cal. 2019). See Reply 2 n.2. But in concluding that “[t]he weight of
Florida law supports” Apotex’s position “with respect to past lost profits,” Allergan merely
tracks the reasoning of, and follows the same cases as, the cases on which Apotex relied in its
initial brief — and is unpersuasive for the same reasons. See Allergan, 364 F. Supp. 3d at 1114
(citing Glob. Tech. LED, 2017 WL 588669, at *9, which in turn relies on Factory Direct Tires
and Sun Protection Factory, as discussed supra).

5

court sitting in diversity is to determine what state law is, not to change it,” In re Gen. Motors
LLC Ignition Switch Litig., 339 F. Supp. 3d 262, 307 (S.D.N.Y. 2018), and “[t]he substantive law
of Florida, as it currently stands,” still “leads to the conclusion that lost profits are consequential
damages, and, thus, not recoverable under FDUTPA,” Diversified Mgmt. Sols., Inc., 2016 WL
4256916, at *6; accord BPI Sports, 2016 WL 739652, at *6. 6
Apotex’s final contention is that its lost profits are “are actually an element of what” the
parties’ contract “specifies are actual damages.” ECF No. 67, at 1; see ECF No. 42 (“Apotex
MTD Mem.”), at 25. If so, then Apotex may ultimately recover those lost profits as damages for
its breach-of-contract claim. Cf. Apotex, 2019 WL 3066328, at *8 (finding “ambiguous the
Agreement’s unequivocal statement forbidding damages for ‘any lost opportunity or profits,’” in
light of the Novation, and denying Hospira’s motion to dismiss that damages claim). But
whether the parties agreed that the lost-profit damages in question would be available (or not) in
the event of a contract breach is, of course, a different question than whether FDUTPA provides
for such damages. In fact, if anything, Apotex’s argument that the parties’ contract “allow[s]
Apotex to recover lost profits as direct damages” in this situation presupposes that such damages
would otherwise be recoverable only as consequential damages at common law — and, thus,
would not be available under FDUTPA. Apotex MTD Mem. 25 (emphasis added).

6

It may be that the way the Court characterized the “benefit-of-the-bargain” damages
theory in its prior Opinion — to wit, that damages are measured as “the difference in the market
value of the product or service in the condition in which it was delivered and its market value in
the condition in which it should have been delivered according to the contract of the parties” —
is not the only way to characterize actual damages under FDUTPA. See Apotex Corp., 2019 WL
3066328, at *9. Even if another formulation might be more appropriate outside the consumerfraud context, however, it does not follow (and Florida law does not currently hold) that lost
profits are available as “actual damages” under FDUTPA.

6

For these reasons, and in light of the Florida authority cited above, the Court would
dismiss Apotex’s FDUTPA claims for lost-profit damages even if it were considering the issue
on a blank slate; Apotex certainly does not satisfy the standards applicable to a motion for
reconsideration. See, e.g., In re Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543
(JMF), 2017 WL 3443623, at *1 (S.D.N.Y. Aug. 9, 2017). Accordingly, the Court clarifies (to
the extent necessary) that Apotex’s FDUTPA claims for lost-profit damages were and are
dismissed, and Apotex’s motion for reconsideration is DENIED.
The Clerk of Court is directed to terminate Docket No. 75.

SO ORDERED.
Dated: August 13, 2019
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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