PLUMBERS' LOCAL UNION NO. 690 HEALTH PLAN v. ACTAVIS INC. et al

Filing 326

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ANITA B. BRODY ON 9/25/2017. 9/25/2017 ENTERED AND COPIES VIA ECF.(mo, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PLUMBERS’ LOCAL UNION NO.
690 HEALTH PLAN,
Plaintiff,
v.
APOTEX CORP., et al.,
Defendants.

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CIVIL ACTION
No. 16-665

September 25, 2017

Anita B. Brody, J.
MEMORANDUM

I. INTRODUCTION
Plaintiff Plumbers Local Union No. 690 Health Plan (“Plumbers”) is a health insurance
plan that provides prescription drug coverage to members of Plumbers Local Union No. 690.
Defendants (“Generic Drug Manufacturers”) are pharmaceutical companies who distribute,
market and sell generic prescription pharmaceutical drugs. Plumbers brings this putative class
action against a multitude of Generic Drug Manufacturers alleging claims under Pennsylvania
state law for violations of the Pennsylvania Unfair Trade Practices and Consumer Protection
Law, negligent misrepresentation, unjust enrichment, civil conspiracy, and aiding and abetting
(“Pennsylvania Claims”). Plumbers also brings claims against Generic Drug Manufacturers for
violations of the consumer protection laws of forty-eight additional states and two territories
(“Non-Pennsylvania Claims”).1 Generic Drug Manufacturers move to dismiss the Amended

1

I exercise subject matter jurisdiction over this putative class action pursuant to 28 U.S.C. § 1332, as
amended by the Class Action Fairness Act (“CAFA”). CAFA grants the Court original jurisdiction over
this putative class action because (1) it involves a proposed plaintiff class of 100 or more members; (2)
the amount in controversy exceeds $5,000,000 in the aggregate, exclusive of interest and costs; and (3)
the parties are minimally diverse—any member of the proposed class is a citizen of a State different from
any defendant. 28 U.S.C. §§ 1332(d)(2), (5)(B).

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Complaint. For the reasons set forth below, I will grant Generic Drug Manufacturers’ motions to
dismiss.
II. BACKGROUND
A. Current Litigation2
1. The Parties
Generic Drug Manufacturers are pharmaceutical companies who distribute, market and
sell generic prescription pharmaceutical drugs. Am. Compl. ¶ 1. Plumbers is a health insurance
plan that provides health coverage, including prescription drug coverage to members of the plan
(“Plan Members”).3 See, e.g., Am. Compl. ¶ 157.
2. Reimbursements for Prescription Drugs and Average Wholesale Prices
Medical professionals prescribe drugs to Plan Members. Plan Members acquire these
drugs either at pharmacies authorized by medical professionals to dispense these drugs or
medical professionals administer these drugs directly to Plan Members. Am. Compl. ¶ 163.
After a pharmacist or medical professional (“Provider”) supplies a drug to a Plan Member, the
Provider then seeks reimbursement from Plumbers. The Provider typically bills Plumbers for
each prescription drug based on the Average Wholesale Price (“AWP”) for the drug, Am.
Compl. ¶¶ 165, 169, and Plumbers pays the provider for the prescription drug “using a formula
which includes AWP as a key component of the amount of reimbursement,”4 Am. Compl. ¶ 157.
Plumbers obtained the AWP for each prescription drug from pricing compendia,

2

All facts in this section are taken from the Amended Complaint.

3

Plumbers resides in Pennsylvania and it has Plan Members who reside in Pennsylvania. Am. Compl. ¶
154.
4

While is unclear from the Amended Complaint exactly who determines the amount for reimbursement
and exactly how the AWP figures into the reimbursement formula, this lack of clarity does not impact the
analysis.

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including First Databank’s Blue Book, Medical Economics’ Red Book, and Medispan. Am.
Compl. ¶¶ 158, 180. Generic Drug Manufacturers provided the AWP value for each of their
drugs to the pricing compendia. Am. Compl. ¶¶ 158, 182. The AWPs that appeared in the
pricing compendia were solely based on the information Generic Drug Manufacturers reported to
the compendia. Am. Compl. ¶ 158, 182. The “actual transactional price data—the amounts
charged to the medical providers and others for their drugs—was not publically available.” Am.
Compl. ¶ 183.
3. Average Wholesale Price Inflation
Since at least 1991 to the present, the AWPs relied on by Plumbers failed to reflect the
actual average wholesale prices that Providers paid for the prescription drugs. Am. Compl. ¶
171. Generic Drug Manufacturers have intentionally inflated their reported AWPs, and the
Providers have billed Plumbers at these inflated AWPs for the generic drugs. Am. Compl. ¶¶
163, 200. Consequently, Plumbers has reimbursed the Providers for Plan Members’ purchases of
the generic drugs based upon inflated AWPs. Am. Compl. ¶ 29.
“Throughout the relevant time period, [Generic Drug Manufacturers] were aware that a
figure called the AWP was the embedded standard used by virtually all payors for drug products
. . . to determine how much to reimburse and pay for a given drug.” Am. Compl. ¶ 173. Generic
Drug Manufacturers “deliberately and intentionally” inflated their AWPs “so that the []
[P]roviders who purchased and dispensed these drugs at a low cost would bill patients and their
insurers at the inflated AWPs, and thereby earn a substantial profit from the ‘spread’ between the
real cost and the various AWP-related reimbursement rates.” Am. Compl. ¶¶ 208- 09. Generic
Drug Manufacturers intentionally inflated their AWPs to provide higher financial remuneration
to the Providers. They did so to encourage the Providers to purchase more of their generic drugs

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thereby increasing Generic Drug Manufacturers’ market share for their prescription drugs. Am.
Compl. ¶¶ 176, 188. Accordingly, Generic Drug Manufacturers “knew or should have known
that when they did not report actual average wholesale prices to the compendia, those inflated
AWPs would increase and distort reimbursement levels.” Am. Compl. ¶ 184. This, of course,
would harm third-party payors, like Plumbers, who reimburse the cost of prescription drugs for
Plan Members. Am. Compl. ¶ 185. To perpetuate their “unfair and deceptive marketing and
sales scheme,” Am. Compl. ¶ 611, Generic Drug Manufacturers “engaged in a continuing
conspiracy to deceive Plaintiff and the Class by causing them to pay more for [] drugs than they
otherwise would have,” Am. Compl. ¶ 610.
B. Prior Litigation
Prior to the current litigation, Plumbers had already participated in two other actions:
International Union of Operating Engineers, Local No. 68 Welfare Fund v. Astrazeneca PLC, et
al., No. MON-L-3136-06 (N.J. Super. Ct. Eq. Div. filed June 30, 2003), a New Jersey state court
class action (the “New Jersey AWP Class Action”) and In re Pharmaceutical Industry Average
Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-12257 (D. Mass. filed Dec. 19,
2001), a multidistrict litigation class action in the United States District Court District of
Massachusetts (the “MDL AWP Class Action”) (collectively, the “AWP Class Actions”). The
allegations in the current litigation and in the AWP Class Actions closely resemble each other.
All three actions were brought against drug manufacturers who allegedly engaged in the
following unlawful scheme:
a. The artificial inflation of the AWPs for their drugs;
b. The creation of spreads between the set AWPs and the actual price paid by medical
providers;

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c. The provision of free goods to medical providers, which were not accounted for in the
reported AWPs;
d. The provision of other financial inducements to medical providers that were not
accounted for in the reported AWPs; and
e. The concealment of the inflation of the AWPs.
Am. Compl. ¶ 196; Revised Fifth Amended Master Consolidated Class Action Complaint ¶¶
174, 177, 180, 204, In re Pharmaceutical Industry Average Wholesale Price Litigation, MDL
No. 1456, Civil Action No. 01-12257 (D. Mass. Apr. 26, 2007), ECF No. 4106 [hereinafter MDL
AWP Compl.];5 Complaint ¶¶ 15, 138, Int’l Union of Operating Eng’rs, Local No. 68 Welfare
Fund v. Astrazeneca PLC, et al., No. MON-L-3136-06 (N.J. Super. Ct. Eq. Div. June 30, 2003),
ECF No. 241-5 [hereinafter N.J. AWP Compl.].6
1. The New Jersey AWP Class Action
In 2003, the International Union of Operating Engineers, Local No. 68 Welfare Fund
(“IUOE”) filed a state-law class action complaint in the Superior Court of New Jersey on behalf
of a putative class of private consumers and third-party payors who had paid for drugs
manufactured, marketed, distributed and sold by the defendants. N.J. AWP Compl. ¶¶ 24, 99.
The complaint alleged that, since at least 1991, the defendants deliberately inflated the AWPs for
their prescription drugs when they reported them to publications like the Red Book with full
knowledge that the putative class members relied on these AWPs to determine the amount of
reimbursement for each drug. N.J. AWP Compl. ¶¶ 99, 108, 109.

5

The electronic court filing numbers listed after each MDL AWP Class Action filing refer to documents
available on the docket for Civil Action No. 01-12557 in the United States District Court District of
Massachusetts.
6

The electronic court filing numbers listed after each New Jersey AWP Class Action filing refer to
documents available on the docket for this action.

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On July 7, 2008, Plumbers “agreed to act as a representative of the Class,” and “to keep
reasonably informed of th[e] action, to participate wherever possible, including discovery, to
provide [] input and direction . . . , and to make sure that important decisions made in the case by
Class Counsel [we]re done with [Plumbers’] input.” July 7, 2008 Certification of Thomas J.
McNulty7 ¶ 2, ECF No. 241-8 [hereinafter 2008 McNulty Certification]; Per Curiam Decision at
10, Int’l Union of Operating Eng’rs, Local No. 68 Welfare Fund v. Astrazeneca PLC, et al., No.
A-0605-08T2, slip op. at 10 (N.J. Super. Ct. App. Div. May 1, 2009), ECF No. 241-7
(stating that Plumbers had “agreed to act as a class representative and to fully participate in all
aspects of litigation, including discovery” (citation omitted)). Plumbers represented that it had
reimbursed for the defendants’ drugs listed in the complaint based on their AWPs, and “that over
the same period alleged in the Complaint, [Plumbers] had reimbursed for numerous additional
drugs, which [were] believe[d] to have also been based on those drugs’ published AWPs,
including both generic and brand name drugs . . . many of which were manufactured and sold by
one or more Defendants.” May 5, 2009 Certification of Thomas J. McNulty ¶ 3, ECF No. 241-9
[hereinafter 2009 McNulty Certification].
In moving to add Plumbers as a class representative, IUOE affirmed that Plumbers was
“making the same claims, about the same conduct, covering the same time period, about the
same types of drugs, based upon the same New Jersey law, against the same defendants, as
[IUOE].” Pl.’s Reply in Support Mot. to Add Class Representatives at 6, Int’l Union of
Operating Eng’rs, Local No. 68 Welfare Fund v. Astrazeneca PLC, et al., No. MON-L-3136-06
(N.J. Super. Ct. Law. Div. Oct. 5, 2009), ECF No. 241-11 [hereinafter N.J. AWP Reply].
Although some examples of drugs purchased by Plumbers differed from those purchased by
IUOE, the lack of complete overlap was insignificant because “[i]t [wa]s the conduct of
7

Thomas J. McNulty was the Fund Administrator for Plumbers.

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Defendants in implementing a scheme to inflate AWPs for their drugs that typifie[d] th[e] case,
not the specific drugs within that scheme.” N.J. AWP Reply 8. On Aug 16, 2010, the court
granted the motion to add Plumbers as a class representative. Order, Int’l Union of Operating
Eng’rs, Local No. 68 Welfare Fund v. Astrazeneca PLC, et al., No. MON-L 3136-06 (N.J. Super.
Ct. Law Div. Aug. 16, 2010), ECF No. 241-10 [hereinafter N.J. AWP Order].
Accordingly, as class representative, Plumbers alleged that “[t]he AWPs for these drugs
is set by the defendants pursuant to a standard industry formula that causes the AWPS to be
substantially higher than the actual cost for these drugs to medical providers and other
suppliers.” N.J. AWP Compl. ¶ 111 (emphasis added). “By deliberately inflating the AWP
above the actual acquisition cost to the medical provider or other seller, the prescription drug
manufacturer defendants created a ‘spread’ between what they set as the AWP and the actual
price paid by medical providers and other suppliers for their drugs.” N.J. AWP Compl. ¶ 112.
The defendants created “such spreads . . . as a profit to medical providers and other suppliers and
were used to incentivize medical providers and other suppliers to prescribe and sell” the
defendants’ drugs. N.J. AWP Compl. ¶ 112. Thus, the “[d]efendants conspired and agreed to
accomplish this fraudulent marketing and sales scheme . . . in order to increase the sales of their
drugs, profits, and market shares . . . .” N.J. AWP Compl. ¶ 136. As a result of the defendants’
scheme, the plaintiff and putative class members suffered harm when they paid inflated prices
for the defendants’ drugs that were based in whole or in part on inflated AWPs. N.J. AWP
Compl. ¶ 113.
2. The MDL AWP Class Action
In 2002, the Judicial Panel on Multidistrict Litigation approved of the consolidation of
cases for pretrial proceedings into the MDL AWP Class Action before Judge Patti B. Saris in the

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District of Massachusetts. See Notice of Copy of MDL 1456 Conditional Transfer Order, In re
Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456, Civil Action No.
01-12257 (D. Mass. May 31, 2002), ECF No. 97. In the MDL AWP Class Action, private thirdparty payors and consumers brought a class action against brand and generic pharmaceutical
drug manufacturers, alleging that the defendants intentionally inflated their AWPs that they
reported to pricing compendia like the Red Book, with full knowledge that the putative class
members relied on these AWPs to determine the amount of reimbursement for each drug. MDL
AWP Compl. ¶¶ 173-75. The plaintiffs alleged that “the AWPs for the drugs at issue here bore
little relationship to the drug’s pricing in the marketplace. They were simply fabricated and
overstated in furtherance of Defendants’ scheme to generate the profit spread to providers . . .
and to increase Defendants’ profits at the expense of Plaintiffs and the Class members.” MDL
AWP Compl. ¶ 151. Furthermore, they alleged that the “Defendant generic manufacturers . . .
manipulate[d] their own AWPs in order to gain or maintain a competitive advantage in the
market for their generic products.” MDL AWP Compl. ¶ 200.
On July 2, 2008, the district court preliminarily approved a settlement of the MDL AWP
Class Action. Order Granting Preliminary Approval, In re Pharmaceutical Industry Average
Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-12257, (D. Mass. July 2, 2008),
ECF No. 5426. Insurers, like Plumbers, were given until March 16, 2009 to opt out of the
settlement or file a settlement claim. Order Revising Certain Dates, In re Pharmaceutical
Industry Average Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-12257, (D.
Mass. Jan. 7, 2009), ECF No. 5828. In 2009, Plumbers submitted a timely claim and received an
allocation of the settlement fund. Decl. of Daniel Coggeshall at 123, In re Pharmaceutical
Industry Average Wholesale Price Litigation, MDL No. 1456, Civil Action No. 01-12257, (D.

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Mass. July 3, 2012), ECF No. 8167-1.
III. STANDARD OF REVIEW
In deciding a motion to dismiss under Rule 12(b)(6), a court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
To survive dismissal, a complaint must allege facts sufficient to “raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In order to determine
the sufficiency of a complaint under Twombly and Iqbal, a court must engage in the following
analysis:
First, the court must take note of the elements a plaintiff must plead to state a
claim. Second, the court should identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of truth. Finally, where there
are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013), as amended (May 10,
2013) (quoting Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011)).
“As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings. However, an exception to the general rule is that a
‘document integral to or explicitly relied upon in the complaint’ may be considered . . . .” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citation omitted)
(quoting Shaw v. Digital Equip Corp., 82 F.3d 1194, 1220 (1st Cir. 1996)). Thus, a court may

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consider “the complaint, exhibits attached to the complaint, matters of public record, as well as
undisputedly authentic documents if the complainant’s claims are based upon these documents.”
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
“To resolve a 12(b)(6) motion, a court may properly look at public records, including
judicial proceedings, in addition to the allegations in the complaint.” S. Cross Overseas
Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999). “Under
Federal Rule of Evidence 201, [a court] may take judicial notice at any stage of the proceeding of
a fact not subject to reasonable dispute that is capable of accurate and ready determination by
resort to a source whose accuracy cannot be reasonably questioned.” Ieradi v. Mylan Labs., Inc.,
230 F.3d 594, 600 n.3 (3d Cir. 2000). Accordingly, a district may take judicial notice at the
motion to dismiss stage. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)
(stating that “sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss,” include “matters of a which a court may take judicial notice”).
At the motion to dismiss stage, “[a] court may take judicial notice of a document filed in
another court not for the truth of the matters asserted in the other litigation, but rather to establish
the fact of such litigation and related filings.” Glob. Network Commc'ns, Inc. v. City of New
York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int’l Star Class Yacht Racing Ass’n v. Tommy
Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)); see also Benak ex rel. All. Premier Growth
Fund v. All. Capital Mgmt. L.P., 435 F.3d 396, 401 n.15 (3d Cir. 2006) (concluding that the
district court did not abuse its discretion when it took judicial notice of newspaper articles to
grant a motion to dismiss on statute of limitations grounds because the articles “serve[d] only to
indicate what was in the public realm at the time, not whether the contents of those articles were
in fact true.”); Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004), (“[A] prior judicial

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opinion constitutes a public record of which a court may take judicial notice, [but] it may do so
on a motion to dismiss only to establish the existence of the opinion, not for the truth of the facts
asserted in the opinion.”), abrogated in part on other grounds by Twombly v. Bell Atl. Corp., 550
U.S. 544 (2007). “Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate when a defendant
raises ... [a statutory bar] as an affirmative defense and it is clear from the face of the complaint,
and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a
matter of law.” Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008)
(quoting Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000)); see also O’Boyle v.
Braverman, 337 F. App’x 162, 164 (3d Cir. 2009) (same); Benak, 435 F.3d at 401-03
(dismissing suit on statute of limitations grounds after taking judicial notice of newspaper
articles that contributed to the court’s determination that the plaintiffs were on inquiry notice of
their claims more than one year prior to filing suit).
IV. DISCUSSION
Generic Drug Manufacturers move to dismiss all of Plumbers’ Pennsylvania Claims on
the basis that Plumbers fails to adequately and plausibly plead these claims. Additionally,
Generic Drug Manufacturers move to dismiss Plumbers’ Non-Pennsylvania Claims on the basis
that Plumbers lacks standing to assert these claims.
A. Pennsylvania Claims
1. Negligent Misrepresentation Claims and Unfair Trade Practices and Consumer
Protection Law Claims
Plumbers brings claims against Generic Drug Manufacturers for negligent
misrepresentation.8 Additionally, Plumbers brings claims against Generic Drug Manufacturers

8

Although Plumbers brings claims for negligent misrepresentation and fraud in Count IV of the Amended
Complaint, it has now voluntarily withdrawn its fraud claim. Pl.’s Opp’n 39.

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for deceptive conduct under the catch-all provision of the Unfair Trade Practices and Consumer
Protection Law (“UTPCPL’), 73 Pa. Stat. Ann. § 201-2(4)(xxi).9 Generic Drug Manufacturers
move to dismiss these claims on the basis that Plumbers fails to adequately and plausibly plead
that it justifiably relied on Generic Drug Manufacturers’ inflated AWPs and that this reliance
caused it actual harm. Plumbers concedes that reliance is required to establish a claim for
negligent misrepresentation, but contends that it remains an open question as to whether reliance
is a required element for deceptive conduct under the catch-all provision of the UTPCPL.
Additionally, Plumbers asserts that it adequately and plausibly pleads justifiable reliance.
In order to establish a claim for negligent misrepresentation, a plaintiff must present
proof of: “(1) a misrepresentation of a material fact; (2) made under circumstances in which the
misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it;
and; (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.”
Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999). Thus, a successful claim for negligent
misrepresentation requires proof of justifiable reliance.
The UTPCPL is Pennsylvania’s consumer protection law that prohibits “[u]nfair methods
of competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce.” 73 Pa. Stat. Ann. § 201-3. “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.” Toy v. Metro. Life Ins. Co., 928 A.2d 186,
190 n.4 (Pa. 2007) (citing 73 Pa. Stat. Ann. § 201-9.2). “The Supreme Court of Pennsylvania
has consistently interpreted the Consumer Protection Law’s private-plaintiff standing provision’s
causation requirement to demand a showing of justifiable reliance, not simply a causal
9

Although Plumbers alleges several types of violations of the UTPCPL in Count I of the Amended
Complaint, it has now voluntarily withdrawn all UTPCPL claims other than its deceptive conduct claim
under the catch-all provision. Pl.’s Opp’n 39 n.19.

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connection between the misrepresentation and the harm.”10 Hunt v. U.S. Tobacco Co., 538 F.3d
217, 222 (3d Cir. 2008), as amended (Nov. 6, 2008). Given the Pennsylvania courts’ repeated
holdings that a plaintiff seeking to bring a private cause of action under the UTPCPL must show
justifiable reliance and harm suffered as a result, the Third Circuit has explicitly held “that
private plaintiffs alleging deceptive conduct under the statute’s post–1996 catchall provision
must allege justifiable reliance.” Hunt, 538 F.3d at 224; see also Kirwin v. Sussman Auto., 149
A.3d 333, 336-37 (Pa. Super. 2016) (holding that the post-1996 catch-all provision of the
UTPCPL requires a showing of justifiable reliance); Kern v. Lehigh Valley Hosp., Inc., 108 A.3d
1281, 1287 (Pa. Super. 2015) (“[J]ustifiable reliance is an element of all private claims under the
UTPCPL.”). Thus, in order to establish a claim for deceptive conduct under the catchall
provision of the UTPCPL, a plaintiff must prove: (1) “a deceptive act, that is conduct that is
likely to deceive a consumer acting reasonably under similar circumstances”; (2) “justifiable
reliance, in other words that [the plaintiff] justifiably bought the product in the first place (or
engaged in some other detrimental activity) because of the [defendant’s] misrepresentation or
deceptive conduct”; and (3) “that this justifiable reliance caused ascertainable loss.” Seldon v.
Home Loan Servs., Inc., 647 F. Supp. 2d 451, 470 (E.D. Pa. 2009) (internal quotation marks
omitted); see Hunt, 538 F.3d at 221-27.
10

The private-plaintiff standing provision provides:
Any person who purchases or leases goods or services primarily for personal, family or
household purposes and thereby suffers any ascertainable loss of money or property, real
or personal, as a result of the use or employment by any person of a method, act or
practice declared unlawful by section 3 of this act, may bring a private action to recover
actual damages or one hundred dollars ($100), whichever is greater. The court may, in its
discretion, award up to three times the actual damages sustained, but not less than one
hundred dollars ($100), and may provide such additional relief as it deems necessary or
proper. The court may award to the plaintiff, in addition to other relief provided in this
section, costs and reasonable attorney fees.

73 Pa. Stat. Ann. § 201-9.2(a) (emphasis added).

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Accordingly, in order to succeed on either a negligent misrepresentation claim or a claim
for deceptive conduct under the catch-all provision of the UTPCPL, Plumbers must establish that
it justifiably relied on Generic Drug Manufacturers’ inflated AWPs and that this reliance caused
its harm. See Hunt, 538 F.3d at 224. Justifiable reliance is typically a question of fact. Toy, 928
A.2d at 208. However, a court may determine, even at the motion to dismiss stage, that a
plaintiff’s allegations of justifiable reliance fail as a matter of law. Hunt, 538 F.3d at 227
(determining at the motion to dismiss stage that the plaintiff’s claim for deceptive conduct under
the catch-all provision of the UTPCPL was inadequate because the plaintiff failed to plausibly
plead justifiable reliance).
“To be justifiable, reliance upon the representation of another must be reasonable.”
Porreco v. Porreco, 811 A.2d 566, 571 (Pa. 2002). “Whether reliance on an alleged
misrepresentation is justified depends on whether the recipient knew or should have known that
the information supplied was false.” Id. (quoting Fort Washington Res., Inc. v. Tannen, 858 F.
Supp. 455, 460 (E.D. Pa. 1994)). “[T]he recipient of an allegedly fraudulent misrepresentation is
under no duty to investigate its falsity in order to justifiably rely, but . . . he is not justified in
relying upon the truth of an allegedly fraudulent misrepresentation if he knows it to be false or if
its falsity is obvious.” Toy, 928 A.2d at 207; see also Emery v. Third Nat. Bank of Pittsburgh,
162 A. 281, 284 (Pa. 1932) (“If a man knows the truth about a representation, he is neither
deceived nor defrauded, and any loss he may sustain is in effect self-inflicted.”). This is because
“knowledge negates the affirmative element of reliance.” City of Philadelphia v. Lead Indus.
Ass’n, No. 90-7064, 1992 WL 98482, at *3 n.4 (E.D. Pa. Apr. 23, 1992). In addition to believing
a misrepresentation, a plaintiff must show that his reliance on the misrepresentation caused the
harm—a requirement more stringent than simply a causal connection between the reliance and

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the misrepresentation:
A mere causal connection can be established by, for instance, proof that a
misrepresentation inflated a product’s price, thereby injuring every purchaser
because he paid more than he would have paid in the absence of the
misrepresentation. A justifiable-reliance requirement, by contrast, requires the
plaintiff to go further—he must show that he justifiably bought the product in the
first place (or engaged in some other detrimental activity) because of the
misrepresentation.
Hunt, 538 F.3d at 222 n.4 (citing Weinberg v. Sun Co., 777 A.2d 442, 445-46 (Pa. 2001)).
As set forth in the Amended Complaint, Plumbers’ theory of the case is that Generic
Drug Manufacturers misrepresented that the AWPs for their drugs were the actual average
wholesale prices, knowing that Plumbers, and other third-party payors, used the AWPs as a key
component in their formula for determining the amount to pay Providers. Thus, Plumbers claims
are predicated on the contention that it relied on Generic Drug Manufacturer’s misrepresentation
that the AWPs were the actual average wholesale prices that Providers paid for the drugs, and
suffered harm as a result because it overpaid Providers using a reimbursement formula crucially
based on the inflated AWPs. Plumbers argues that it adequately pleads both negligent
misrepresentation and deceptive conduct under the catch-all provision of the UTPCPL.
Despite Plumbers contention, however, Plumbers never alleges in its Amended
Complaint that it ever believed that Generic Drug Manufacturers’ AWPs were the actual average
wholesale prices of their drugs. This is not surprising. Given Plumbers participation in the prior
AWP Class Actions, Plumbers could not credibly make such an allegation. Put plainly, this is
because Plumbers already knew, when it agreed in 2008 to act as a class representative in the
New Jersey AWP Class Action, that the AWPs reported by drug manufacturers were not the
actual average wholesale prices of the drugs. As Plumbers accurately alleged in the Complaint
for the New Jersey AWP Class Action, “[t]he AWPs for these drugs is set by the defendant[]

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[drug manufacturers] pursuant to a standard industry formula that causes the AWPS to be
substantially higher than the actual cost for these drugs to medical providers and other
suppliers.” N.J. AWP Compl. ¶ 111 (emphasis). Although Plumbers never alleges that it
believed the AWPs were the actual average wholesale price of the drugs, it does allege that it
was “unaware of the artificial inflation of the AWP.” Am. Compl. ¶ 599. This allegation,
however, directly conflicts with Plumbers understanding of AWPs as early as 2008—that it was
standard industry practice to inflate them above their actual average wholesale prices.
Plumbers overall participation in the prior AWP Class Actions clearly demonstrates that
Plumbers knew the AWPs were not the actual average wholesale prices of the drugs. All three
actions were brought against defendant drug manufacturers who allegedly engaged in the
following unlawful scheme:
a.

The artificial inflation of the AWPs for their drugs;

b.

The creation of spreads between the set AWPs and the actual price paid by
medical providers;

c.

The provision of free goods to medical providers, which were not accounted for in
the reported AWPs;

d.

The provision of other financial inducements to medical providers that were
not accounted for in the reported AWPs; and

e.

The concealment of the inflation of the AWPs.

Am. Compl. ¶ 196; N.J. AWP Compl. ¶¶ 15, 38; MDL AWP Compl. ¶¶ 174, 177, 180, 204. In
the AWP Class Actions, the plaintiffs recognized that the AWPs were not the actual average
wholesale prices of any drugs. Moreover, in the New Jersey AWP Class Action, Plumbers
represented to the court “that over the same period alleged in the Complaint, [Plumbers] had

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reimbursed for numerous additional drugs, which [were] believe[d] to have also been based on
those drugs’ published AWPs, including both generic and brand name drugs . . . many of which
were manufactured and sold by one or more Defendants.” 2009 McNulty Certification ¶ 3.
Thus, Plumbers explicitly acknowledged that it believed that the published AWPs for both
generic and brand name drugs were inaccurate, and the scheme to inflate the AWPs was more
widespread than the drugs involved in the case. See N.J. AWP Reply 8 (asserting that“[i]t [wa]s
the conduct of Defendants in implementing a scheme to inflate AWPs for their drugs that
typifie[d] th[e] case, not the specific drugs within that scheme”).
Given the striking similarities between Plumbers’ Amended Complaint in this action and
the complaints and representations made in the AWP Class Actions, Plumbers cannot credibly
argue that it believed that Generic Drug Manufacturers’ AWPs were the actual average
wholesale prices of their drugs at the time it filed this action. Because Plumbers knew that the
AWPs were not the actual average wholesale prices of Generic Drug Manufacturers’ drugs,
Plumbers cannot plausibly claim to have justifiably relied on the misrepresentation that they
were the actual average wholesale prices because “knowledge negates the affirmative element of
reliance.” Lead Indus., 1992 WL 98482 at *3 n.4 (emphasis omitted). Put another way, “the
recipient of an allegedly fraudulent misrepresentation . . . is not justified in relying upon the truth
of an allegedly fraudulent misrepresentation if he knows it to be false or if its falsity is obvious.”
Toy, 928 A.2d at 207. Plumbers both knew that the AWPs were not the actual average wholesale
prices for Generic Manufacturers’ drugs and the falsity was obvious.11 The absence of a single

11

In addition to the prior AWP Class Actions, the public record in Pennsylvania supports that Plumbers
knew that the AWPs of Generic Drug Manufacturers’ drugs were not based on the actual average
wholesale prices that Providers paid for these drugs. In 2005, the Pennsylvania Department of Public
Welfare changed the way the AWP was used to reimburse generic drugs in recognition of the fact, as
noted by the Congressional Budget office in its December 2004 report on Medicaid FFS, that “the

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pleading in Plumbers’ Amended Complaint that it believed that the AWPs of the drugs were the
actual average wholesale prices that Providers paid for these drugs further confirms that
Plumbers knew the falsity of Generic Drug Manufacturers’ misrepresentation.
Accordingly, Plumbers inadequately and implausibly pleads justifiable reliance. It fails
to allege that it believed Generic Drug Manufacturers’ misrepresentation, a belief it cannot now
plausibly claim to have possessed because it knew from the prior AWP Class Actions, that the
AWPs were not the actual average wholesale prices of any drugs. Therefore, I will grant Generic
Drug Manufacturers’ motions to dismiss Plumbers’ negligent misrepresentation and UTPCPL
claims.12

average wholesale price (AWP) of a drug . . . (like the sticker price on a car) is a published price that few
purchasers actually pay.” 35 Pa. Bull. 4727 (Aug. 20, 2005) (internal quotation marks omitted).
12

By March 16, 2009, after Plumbers had already agreed to act as a class representative in the New
Jersey AWP Class Action and filed a settlement claim in the MDL AWP Class Action, Plumbers knew
that the AWPs of drugs were not the actual average wholesale prices that Providers paid. For Plumbers’
negligent misrepresentation and UTPCPL claims for any payments made after this date, it cannot succeed
because it has not adequately alleged that it believed Generic Drug Manufacturers’ misrepresentation, but
also because it cannot plausibly allege that it believed the misrepresentation.
For Plumbers’ negligent misrepresentation and UTPCPL claims made on or before March 16,
2009, these claims will be dismissed because Plumbers has not adequately alleged that it believed that the
AWPs of Generic Drug Manufacturer’s drugs were the actual average wholesale prices Providers paid.
Additionally, these claims and all other Pennsylvania Claims for payments made before December 30,
2009 will be dismissed because they are barred by the applicable statutes of limitations.
Plumbers’ Complaint was filed on December 30, 2015. The longest statute of limitations is six
years for Plumbers’ Pennsylvania UTPCPL claims. This means that a claim may only be timely if it
occurred on or after December 30, 2009, unless an exception to the applicable statute of limitations
applies. Plumbers contends that three exceptions to the statutes of limitations apply: the discovery rule,
the doctrine of fraudulent concealment, and the continuing violations doctrine.
For any of these exceptions to apply, a plaintiff must exercise reasonable diligence. Fine v.
Checcio, 870 A.2d 850, 861 (Pa. 2005) (“[T]he standard of reasonable diligence, which is applied to the
running of the statute of limitations when tolled under the discovery rule, also should apply when tolling
takes place under the doctrine of fraudulent concealment.”); Cowell v. Palmer Twp., 263 F.3d 286, 295
(3d Cir. 2001) (“[T]he continuing violations doctrine should not provide a means for relieving plaintiffs
from their duty to exercise reasonable diligence in pursuing their claims.”).
The Pennsylvania Supreme Court has explained: “There are [very] few facts which diligence
cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in
which it would be successful. This is what is meant by reasonable diligence.” Fine, 870 A.2d at 858
(quoting Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000)). “Put another way, ‘[t]he question in
any given case is not, what did the plaintiff know of the injury done him? [B]ut, what might he have

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2. Unjust Enrichment Claim
Generic Drug Manufacturers contend that Plumbers cannot proceed with unjust
enrichment claims absent the survival of a traditional tort claim.13 Plumbers asserts that a
plaintiff may proceed with an unjust enrichment claim absent an underlying tort claim.
To establish a claim for unjust enrichment under Pennsylvania law, a plaintiff must
demonstrate that: (1) he conferred a benefit on the defendant; (2) the defendant appreciated the
benefit; and (3) it would be inequitable for the defendant to retain the benefit without paying for
it. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. Ct. 1999). Under Pennsylvania law,
there are two categories of unjust enrichment claims: (1) In the contract setting, an unjust
enrichment claim arises “when plaintiff seeks to recover from defendant for a benefit conferred
under an unconsummated or void contract”; (2) “In the tort setting, an unjust enrichment claim is
essentially another way of stating a traditional tort claim (i.e., if defendant is permitted to keep
the benefit of his tortious conduct, he will be unjustly enriched).” Steamfitters Local Union No.
420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 936 (3d Cir. 1999). “As to the first
theory, an unjust enrichment claim based on a theory of quasi-contract may be pled as an
alternative to a breach of contract claim.” Whitaker v. Herr Foods, Inc., 198 F. Supp. 3d 476,
493 (E.D. Pa. 2016) (citing Lugo v. Farmers Pride, Inc., 967 A.2d 963, 970 n. 5 (Super. Ct. Pa.
known, by the use of the means of information within his reach, with the vigilance the law requires of
him?’” Id. (quoting Scranton Gas & Water Co. v. Lackawanna Iron & Coal Co., 31 A. 484, 485 (Pa.
1895)).
Because of the prior AWP Class Actions, Plumbers knew by March 16, 2009 that the AWPs of
drugs were not the actual average wholesale prices that Providers paid. Therefore, it cannot be found to
have exercised reasonable diligence in its efforts to learn its injury and cause. It had six years at most
from the date it learned the true nature of AWPs to raise any of these claims and it did not do so.
Plumbers did not file its Complaint until December 30, 2015. Thus, any Pennsylvania Claims for
payments made before December 30, 2009 are time-barred.
13
In the alternative, Generic Drug Manufacturers argue that Plumbers cannot succeed on its unjust
enrichment claims because it does not adequately plead the elements of unjust enrichment. Additionally,
Generic Drug Manufacturers argue that the voluntary payment doctrine bars recovery. There is no need
to address these arguments because, as will be discussed below, Plumbers cannot succeed on this claim
absent a viable underlying tort claim.

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2009). “With respect to the second theory, an unjust enrichment claim may be pled as a
companion, not an alternative, to a claim of unlawful or improper conduct as defined by law—
e.g., a tort claim.” Id.
In the tort setting, there is “no justification for permitting plaintiffs to proceed on their
unjust enrichment claim once [it is] determined that the District Court properly dismissed the
traditional tort claims.” Steamfitters, 171 F.3d at 937; Allegheny Gen. Hosp. v. Philip Morris,
Inc., 228 F.3d 429, 447 (3d Cir. 2000) (stating that the “proper reading of Steamfitters” is that an
unjust enrichment claim based in tort must be dismissed when the traditional tort claims are
dismissed). “[A]n unjust enrichment claim based on wrongful conduct cannot stand alone as a
substitute for the failed tort claim.” Whitaker, 198 F. Supp. 3d at 493.
Plumbers’ unjust enrichment claims focus on the same negligent misrepresentations and
deceptive conduct that form the basis of its negligent misrepresentation and UTPCPL claims.
Plumbers never responds to Generic Drug Manufacturers’ contention that its unjust enrichment
claims are based in tort. Plumbers’ failure to respond to this argument is a concession that its
unjust enrichment claims arise in the tort setting. An apt acknowledgement, given that claims for
negligent misrepresentation and deceptive conduct under the catch-all provision of the UTPCPL
are both characterized as torts. See Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866
A.2d 270, 280 (Pa. 2005) (exploring “general principles of tort law” to examine the “common
law tort of negligent misrepresentation”); Christopher v. First Mut. Corp., No. 05-0115, 2008
WL 1815300, at *11 (E.D. Pa. Apr. 22, 2008) (explaining that under the catch-all provision of
the UTPCPL, “[a] deceptive act is ‘the act of intentionally giving a false impression’ or ‘a tort
arising from a false representation made knowingly or recklessly with the intent that another
person should detrimentally rely on it’” (quoting In re Patterson, 263 B.R. 82, 94 (Bankr. E.D.

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Pa. 2001)); see also Duffy v. Lawyers Title Ins. Co., 972 F. Supp. 2d 683, 689 n.9 (E.D. Pa.
2013) (same); Wilson v. Parisi, 549 F. Supp. 2d 637, 666 (M.D. Pa. 2008) (same).
Because Plumbers’ negligent misrepresentation and UTPCPL claims will be dismissed,
Plumbers no longer has a viable underlying tort claim. Plumbers cannot proceed with standalone
unjust enrichment claims. Accordingly, I will grant Generic Drug Manufacturers’ motion to
dismiss Plumbers’ unjust enrichment claims.
3. Civil Conspiracy Claim
Generic Drug Manufacturers contend that Plumbers’ civil conspiracy claims must be
dismissed due to the dismissal of its other causes of action.14
To prove civil conspiracy under Pennsylvania law, a plaintiff must establish the
following elements: “(1) a combination of two or more persons acting with a common purpose to
do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an
overt act done in pursuance of the common purpose; and (3) actual legal damage.” Gen.
Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003) (quoting
Strickland v. Univ. of Scranton, 700 A.2d 979, 987-88 (Pa. Super. Ct. 1997)). Additionally,
“absent a civil cause of action for a particular act, there can be no cause of action for civil
conspiracy to commit that act.” Pelagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super. Ct. 1987);
see also Forcine Concrete & Constr. Co. v. Manning Equip. Sales & Servs., No. 08-2926, 2010
WL 2470992, at *5 (E.D. Pa. June 14, 2010) (same); McKeeman v. Corestates Bank, N.A., 751
A.2d 655, 660 (Pa. Super. Ct. 2000) (same).
Because Plumbers’ underlying Pennsylvania state law claims will be dismissed,
Plumbers’ civil conspiracy claims are not viable. Therefore, I will grant Generic Drug
14

In the alternative, Generic Drug Manufacturers argue that Plumbers insufficiently pleads its civil
conspiracy claims. There is no need to address this argument because, as will be discussed below,
Plumbers cannot succeed on this claim absent an underlying cause of action.

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Manufacturers’ motion to dismiss Plumbers’ civil conspiracy claims.
4. Aiding and Abetting Claim
Generic Drug Manufacturers contend that Plumbers’ aiding and abetting claims must be
dismissed because of the dismissal of its other causes of action.
Pennsylvania recognizes a claim for civil liability for aiding and abetting a tort pursuant
to the Restatement (Second) of Torts § 876. Skipworth by Williams v. Lead Indus. Ass’n, Inc.,
690 A.2d 169, 174-75 (1997). “Liability for aiding and abetting requires proof of three elements:
underlying tortious conduct, knowledge, and substantial assistance.” Jenkins v. Williams, No.
02-331, 2008 WL 1987268, at *14 (D. Del. May 7, 2008); see also Restatement (Second) of
Torts § 876. “[T]here can be no claim for aiding and abetting unless plaintiff has also alleged a
viable claim for the underlying tort.” Austin v. Hill, No. 11-2847, 2014 WL 1386338, at *14
(E.D. Pa. Apr. 9, 2014); see also First United Bank & Tr. v. PNC Fin. Servs. Grp., Inc., 667 F.
Supp. 2d 443, 457 (M.D. Pa. 2009) (dismissing aiding and abetting claim for failure to allege an
underlying tort claim).
Because Plumbers’ underlying tort claims will be dismissed, Plumbers’ aiding and
abetting claims are not viable. Therefore, I will grant Generic Drug Manufacturers’ motion to
dismiss Plumbers’ aiding and abetting claims.
B. Non-Pennsylvania Claims
Plumbers brings claims against Generic Drug Manufacturers for violations of the
consumer protection laws of forty-eight additional states and two territories. Generic Drug
Manufacturers contend that Plumbers lacks Article III standing to bring these claims. Without
any legal reasoning or citation to legal authority, Plumbers “respectfully suggests that the Court
defer ruling on the Plaintiff’s claims under any state law other than Pennsylvania.” Pl.’s Opp’n

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45. Additionally, Plumbers asserts that “it has the right to bring claims under the laws of any
state where its [Plan] [M]embers reside and purchased the generic drugs at issue.” Pl.’s Opp’n
44.
The doctrine of standing is “a constitutional principle that prevents courts of law from
undertaking tasks assigned to the political branches.” Lewis v. Casey, 518 U.S. 343, 349 (1996).
“It is the role of courts to provide relief to claimants, in individual or class actions, who have
suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the
political branches, to shape the institutions of government in such fashion as to comply with the
laws and the Constitution.” Id.
Constitutional standing under Article III requires the following elements:
(1) an injury-in-fact, which is an invasion of a legally protected interest that is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical; (2) a causal connection between the injury and the conduct
complained of; and (3) that it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision.
Winer Family Tr. v. Queen, 503 F.3d 319, 325 (3d Cir. 2007). In addition to the “immutable
requirements of Article III,” the judiciary also adheres to the prudential principle that “the
Plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties.” Miller v. Nissan Motor Acceptance Corp.,
362 F.3d 209, 221 (3d Cir. 2004) (quoting Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts, Inc., 140 F.3d 478, 485 (3d Cir. 1998)). “That a suit may be a class action . . . adds
nothing to the question of standing, for even named plaintiffs who represent a class must allege
and show that they personally have been injured, not that injury has been suffered by other,
unidentified members of the class to which they belong and which they purport to represent.”
Lewis, 518 U.S. at 357 (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26,

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40 n.20 (1976)). “The initial inquiry . . . is whether the lead plaintiff individually has standing,
not whether or not other class members have standing.” Winer, 503 F.3d at 326. “A named
plaintiff in a class action who cannot establish the requisite case or controversy between himself
and the defendants simply cannot seek relief for anyone—not for himself, and not for any other
member of the class.” Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987) (citing O’Shea v.
Littleton, 414 U.S. 488, 494 (1974)).
“[A] plaintiff who raises multiple causes of action ‘must demonstrate standing for each
claim he seeks to press.’” In re Schering Plough Corp. Intron/Temodar Consumer Class Action,
678 F.3d 235, 245 (3d Cir. 2012) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006)). “[E]ach claim must be analyzed separately, and a claim cannot be asserted on behalf of
a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.”
Griffin, 823 F.2d at 1483. “A named plaintiff whose injuries have no causal relation to, or
cannot be redressed by, the legal basis for a claim does not have standing to assert that claim.”
In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 152 (E.D. Pa. 2009).
Although Plumbers requests that the Court defer ruling on the issue of standing for
Plumber’s Non-Pennsylvania Claims, standing is a “threshold inquiry” that should not be
deferred. In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 64 F.
Supp. 3d 665, 693-94 (E.D. Pa. 2014); see also In re Niaspan Antitrust Litig., 42 F. Supp. 3d
735, 758 n.20 (E.D. Pa. 2014) (deciding standing of named plaintiffs at the motion to dismiss
stage after declining to defer standing analysis); U.S. ex rel. Krahling v. Merck & Co., 44 F.
Supp. 3d 581, 601 (E.D. Pa. 2014) (same); Wellbutrin, 260 F.R.D. at 155 (same). To defer
ruling on standing would create the exact problem that the standing inquiry seeks to avoid:
[It] would allow named plaintiffs in a proposed class action, with no injuries in
relation to the laws of certain states referenced in their complaint, to embark on
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lengthy class discovery with respect to injuries in potentially every state in the
Union. At the conclusion of that discovery, the plaintiffs would apply for class
certification, proposing to represent the claims of parties whose injuries and
modes of redress they would not share.
Wellbutrin, 260 F.R.D. at 155. The Court will analyze Plumbers’ standing to bring the NonPennsylvania Claims at this juncture in the litigation because deferral of the standing analysis
would be imprudent.
There is no dispute that Plumbers has standing to bring its Pennsylvania Claims because
Plumbers resides in Pennsylvania and alleges that it suffered an injury when it paid too much for
Generic Drug Manufacturers’ drugs based on their inflated AWPs. See, e.g. Krahling, 44 F.
Supp. 3d at 602 (holding that the named plaintiffs have standing in the states where they reside).
Generic Drug Manufacturers contend, however, that Plumbers does not have standing to assert
any Non-Pennsylvania Claims because it has not suffered an injury in any state other than
Pennsylvania.
Courts in this district have repeatedly held, in cases in which named plaintiffs are benefit
plans who bring suit regarding their reimbursement of members’ purchase of drugs, that
plaintiffs lack standing, because they suffered no injury, to raise state law claims for states where
they are not located and where they did not purchase any drugs or reimburse their members for
the purchase of any drugs. See, e.g., Suboxone, 64 F. Supp. 3d at 692-94; Niaspan, 42 F. Supp.
3d at 758-59; Wellbutrin, 260 F.R.D. at 157-58. Conversely, “[c]ase law supports the position
that Plaintiffs suffered injury and have standing in states where they purchased a drug or
reimbursed their members for purchases of a drug.” In re Flonase Antitrust Litig., 692 F. Supp.
2d 524, 533 (E.D. Pa. 2010) (citing Wellbutrin, 260 F.R.D. at 156-57); see also Niaspan, 42 F.
Supp. 3d at 758. In accordance with these holdings, Plumbers only asserts that “it has the right
to bring claims under the laws of any state where its [Plan] [M]embers reside and purchased the
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generic drugs at issue.” Pl.’s Opp’n 44.
In Count III, Plumbers asserts claims under the consumer protection laws of thirty-seven
jurisdictions to which Plumbers pleads no connection and in which Plumbers alleges no
injuries.15 In its brief, Plumbers makes no attempt to argue that it has standing to bring claims
under any of the consumer protection laws of these thirty-seven jurisdictions. It is
incontrovertible that Plumbers lacks standing to bring Count III because “[t]he amended
complaint . . . provides no facts on which to find a connection between an alleged injury and
some wrongful conduct that would implicate the laws of those states in which [the] plaintiff, or
any of [its] reimbursed members, resides.” Wellbutrin, 260 F.R.D. at 157.
In Count II, Plumbers asserts claims under the consumer protection laws of the DVHCC
Members. DVHCC resides in Pennsylvania and DVHCC Members reside in California, the
District of Columbia, Delaware, Indiana, Kentucky, Maryland, Massachusetts, Michigan, New
Jersey, New York, Ohio, Wisconsin, and West Virginia. Am. Compl. ¶ 468. Therefore,
Plumbers brings claims for violations of the consumer protection laws of each of these states.
Plumbers contends that, in accordance with case law in this district, it has standing to bring these
state law claims because DVHCC Members reside in these states. DVHCC, however, is not a
party to this lawsuit, and the Amended Complaint is silent as to any relationship between
Plumbers and DVHCC.16 Because the Amended Complaint only alleges that Plumbers resides in

15

The thirty-seven jurisdictions are: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut,
Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, Minnesota, Mississippi,
Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma,
Oregon, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont,
Virginia, Washington, and Wyoming.
16

The Amended Complaint provides no information about DVHCC beyond the states in which DVHCC
and DVHCC Members reside. It does not even explain the DVHCC acronym. The parties appear to
agree that DVHCC stands for the Delaware Valley Health Care Coalition. Although Plumbers asserts in
its brief that it is a member of DVHCC, this assertion does not appear in its Amended Complaint.

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Pennsylvania and has Plan Members who reside in Pennsylvania, Plumbers lacks standing to
raise claims under the consumer protection laws of any state other than Pennsylvania, including
the consumer protection laws of the DVHCC. Therefore, I will grant Generic Drug
Manufacturers’ motions to dismiss the Non-Pennsylvania Claims.
V. CONCLUSION
For the reasons set forth above, I will grant Generic Drug Manufacturers’ motions to
dismiss.17

s/Anita B. Brody
___________________________
ANITA B. BRODY, J.

Copies VIA ECF on _________ to:

In order to avoid dismissal, Plumbers requests leave to amend its Amended Complaint. “[I]f a
complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224,
245 (3d Cir. 2008). For all of the reasons discussed above, including Plumbers’ knowledge that the
AWPs were not the actual average wholesale prices for Generic Drug Manufacturers’ drugs, amendment
would be futile. Therefore, I will deny Plumbers’ request for leave to amend.
17

27