Harwood v. Mylan Specialty L.P.

BRIEF in Opposition re Motion to Dismiss for Failure to State a Claim

W.D. Pa.January 4, 2017

0 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA SUZANNE HARWOOD, Plaintiff, v. MYLAN SPECIALTY L.P., Defendant. Case No: 16-cv-01348-CB-RCM Honorable Cathy Bissoon Honorable Robert C. Mitchell BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 1 of 33 i TABLE OF CONTENTS I. INTRODUCTION ....................................................................................................... 1 II. STATEMENT OF FACTS .......................................................................................... 2 III. DEFENDANT FAILS TO MEET ITS HEAVY BURDEN ON THIS MOTION ...... 5 IV. LEGAL ARGUMENT................................................................................................ 6 A. Plaintiff Has Article III Standing to Sue .................................................................. 6 B. Harwood States a Claim for a Violation of the New York Deceptive Trade Practices Act ............................................................................................................ 9 1. Plaintiff Alleges a Deceptive Business Act or Practice .................................. 10 2. Plaintiff Alleges That Defendant’s Acts or Practices Caused Her Actual Injury……………………………………………………………………… .13 C. Plaintiff Has Stated a Claim for Mylan’s Violation of the Pennsylvania Unfair Trade Practices and Consumer Law ...................................................................... 15 1. Plaintiff May Bring a Claim under the UTPCL ............................................. 15 2. Defendant’s Conduct and Statements Were a Misleading Justification to Gouge a Class of People Dependent on Its Product for Survival .................. 16 3. Plaintiff Justifiably Relied on Defendant’s Press Release .............................. 18 D. Defendant Was Unjustly Enriched by Plaintiff ..................................................... 20 E. Plaintiff Challenges Defendant’s Unfair and Deceptive Sale of EpiPens in Two- Packs ...................................................................................................................... 22 F. The Court Should Not Strike Plaintiff’s Class Allegations ................................... 22 Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 2 of 33 ii G. Should the Court Grant Defendant’s Motion, Plaintiff Should Be Granted Leave to Amend the Complaint ............................................................................................ 25 V. CONCLUSION ......................................................................................................... 25 Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 3 of 33 iii TABLE OF AUTHORITIES Cases In re Bextra & Celebrex Mktg., Sales Practices & Prod. Liab. Litig., No. MDL 05-01699 CRB, 2007 WL 2028408 (N.D. Cal. July 10, 2007) ....................................................... 9 ACLU-NJ Township of Wall, 246 F.3d 258 (3d Cir. 2001)………………………………5 Allen v. Holiday, 249 F.R.D. 166 (E.D. Pa. 2008) ............................................................ 24 Arrington v. Colortyme, Inc., 972 F. Supp. 2d 733 (2014) ................................................. 5 Baker v. Family Credit Counseling Corp., 440 F. Supp. 2d 392 (E.D. Pa. 2006) ............ 15 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). ....................................................... 5 Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 2012 PA Super 60, 40 A.3d 145 (2012). .................................................................................................................... 17 Biotechnology Indus. Org. v. D.C., 496 F.3d 1362 (Fed. Cir. 2007) ................................ 22 Cohen v. JP Morgan Chase & Co., 498 F.3d 111 (2d Cir. 2007) .................................... 10 Cohen v. Ohio Cas. Grp., No. CIV.A.07-CV-1620, 2009 WL 586123 (W.D. Pa. Mar. 6, 2009) (Bissoon, J.) ........................................................................................................ 18 Com., by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974) . 15 Cottrell v. Alcon Labs., Inc., No. CV 14-5859(FLW), 2016 WL 1163163 (D.N.J. Mar. 24, 2016) ............................................................................................................................... 8 Cunningham v. Bayer AG, No 603820/00, 2003 WL 25780718 (N.Y. Sup. Ct. 2003).... 12 Danganan v. Guardian Prot. Servs., No. CV 15-1495, 2016 WL 3977488 (W.D. Pa. July 25, 2016) ....................................................................................................................... 16 Forcellati v. Hylands, 876 F. Supp. 2d 1155 (C.D. Cal. 2012) ........................................ 23 Germain v. Wisniewski, No. 15-1279, 2016 WL 4158994 (W.D. Pa. Aug. 5, 2016) ....... 20 Goldemberg v. Johnson & Johnson Consumer Companies, Inc., 8 F. Supp. 3d 467 (S.D.N.Y. 2014) ............................................................................................................ 13 Goode v. LexisNexis Risk & Information Analytics Group, Inc., 284 F.R.D. 238, (E.D. Pa. 2012) ............................................................................................................................. 22 Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 4 of 33 iv Gregory v. Metro Auto Sales, Inc., 158 F. Supp. 3d 302 (E.D. Pa 2016) ......................... 23 Grimes v. Enter. Leasing Co. of Philadelphia, LLC, 629 Pa. 457, 105 A.3d 1188, (2014) ....................................................................................................................................... 19 Haggart v. Endogastric Sols., Inc., No. CIV.A. 10-0346, 2011 WL 466684 (W.D. Pa. Feb. 4, 2011). ................................................................................................................ 16 Harry & Bryant Co. v. F.T.C., 726 F.2d 993 (4th Cir. 1984) ............................................. 9 In re Anthem Inc. Data Breach Litigation, 162 F. Supp. 3d 963 (N.D. Cal. Aug. 17, 2016) ....................................................................................................................................... 13 In re Ford Motor Co. E-350 Van Prod. Liab. Litig. (No. II), No. 03-cv-4558, 2008 WL 4126264 (D.N.J. Sept. 2, 2008) .................................................................................... 21 In re Hypodermic Prods. Antitrust Litig., No. 05-cv-1602, 2007 WL 1959225 (D.N.J. June 29, 2007) ............................................................................................................... 21 In re Mercedes Benz Tele Aid Contract Litig., 257 F.R.D. 46 (D.N.J. 2010)................... 21 In re Methyl Butyl Ether (“MTBE”) Products, 175 F. Supp. 2d 593 (S.D.N.Y. 2001) ... 12 In re Milo’s Dog Treats Consol. Cases, 9 F. Supp. 3d 523 (W.D. Pa. 2014) ..................... 5 In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016) ........................ 6 In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir. 2012) ........................................................................................................................ 7 In re Scotts EZ Seed Litigation, 304 F.R.D. 397 (S.D.N.Y. 2015) ................................... 24 In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672 (S.D. Fla. 2004) ........... 21 Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418 (S.D.N.Y. 2009) .................................. 24 Karlin v. IVF America, Inc., 712 N.E.2d 662 (N.Y. 1999) ............................................... 10 Katz v. Live Nation, Inc., No. 09-3740MLC, 2010 WL 2539686 (D.N.J. June 17, 2010) . 9 Kern v. Lehigh Valley Hosp., Inc., 2015 PA Super 19, 108 A.3d 1281 (2015) ................ 19 Korman v. Walking Co., 503 F. Supp. 2d 755 (E.D. Pa. 2007) ........................................ 23 Landsman & Funk PC, 640 F.3d 72 (3d Cir. 2011) ......................................................... 23 Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 5 of 33 v Lorah v. SunTrust Mortg., Inc., No. CIV.A. 08-0703, 2010 WL 5342738 (E.D. Pa. Dec. 17, 2010) ....................................................................................................................... 19 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................. 7 Mastercard International, Inc., No. 03-cv-9826, 2005 WL 1324972 (S.D.N.Y. 2005)... 12 Mayer v. Belichick, 605 F.3d 223 (3d Cir. 2010). .............................................................. 5 Mazur v. Milo's Kitchen, LLC, No. CIV.A. 12-1011, 2013 WL 3245203 (W.D. Pa. June 25, 2013) ....................................................................................................................... 18 Mertz v. Donzi Marine, Inc., No. 04-55 ERIE, 2007 WL 710263 (W.D. Pa. Mar. 6, 2007) ....................................................................................................................................... 19 Mikola v. Penn Lyon Homes, Inc., No. 4: cv–07–0612, 2008 WL 2357688 (M.D. Pa. June 4, 2008) ......................................................................................................................... 15 New York v. Feldman, 210 F. Supp. 2d 294 (S.D.N.Y. 2002) .......................................... 10 Odd v. Malone, 538 F.3d 202 (3d Cir. 2008) ...................................................................... 5 Orlander v. Staples, 802 F.3d 289 (2d Cir. 2015) ............................................................ 13 Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741 (N.Y. 1995) ............................................................................................................ 10 Pennsylvania Funeral Directors Ass'n, Inc. v. F.T.C., 41 F.3d 81 (3d Cir. 1994) ............. 9 Perlman ex rel. Perlman v. McDonald’s Corp., 396 F.3d 508 (2d Cir. 2005) ................. 14 Phifer v. Home Savers Consulting Corp., No. 06-cv-3841, 2007 WL 295605, (E.D.N.Y. Jan. 30, 2007) ................................................................................................................ 14 Phillips v. Cty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) ................................................. 6 Relativity Travel, Ltd. v. JP Morgan Chase Bank, No. 601075/05, 2006 WL 2918081 (N.Y. Sup. Ct. Feb 14, 2006) ........................................................................................ 11 Richardson v. Bledsoe, 829 F.3d 273 (3d Cir. 2004) ........................................................ 23 Rios v. State Farm Fire and Cas. Co., 469 F. Supp. 2d 727 (S.D. Iowa 2007) ................ 21 Sand v. Ticketmaster-N.Y., Inc., 207 A.D.2d 687 (N.Y. App. Div. 1994) ........................ 12 Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 6 of 33 vi Sbarra v. Horizontal Expl., LLC, No. CV 14-866, 2016 WL 3268860 (W.D. Pa. June 15, 2016) ............................................................................................................................. 16 Schomburg v. Dow Jones & Co., Fed. Appx. 100 (3d Cir. 2012) .................................... 25 Schuchardt v. President of the United States, 839 F.3d 336 (3d Cir. 2016) ....................... 7 See Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598 (N.Y. 1999) .................... 10 Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F. Supp. 2d 380 (E.D. Pa. 2010) ................................................................................. 18, 19 Sims v. First Consumers Nat. Bank, 303 A.D.2d 288 (N.Y. App. Div. 2003) ................. 11 Smith v. State Farm Mutual Auto. Ins. Co., 93 Cal. App. 4th 700 (Cal. Ct. App. 2001) .... 8 Spirit Locker, Inc. v. EVO Direct, LLC, 696 F. Supp. 2d 296 (E.D.N.Y. 2010) .............. 20 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) .................................................................. 7 Stutman v. Chemical Bank, 731 N.E.2d 608 (2000) ......................................................... 14 Sullivan v. DB Investments, Inc., 667 F.3d 273 (3d Cir. 2011) ........................................ 24 Super Glue Corp. v. Avis Rent A Car Sys., Inc., 159 A.D.2d 68 (N.Y. Sup. Ct. 1990) .... 12 Toth v. Nw. Sav. Bank, No. GD-12-008014, 2013 WL 8538695 (Pa. Com. Pl. Mar. 1, 2013) ............................................................................................................................. 19 Weinberg v. Sun Co., 740 A.2d 1152, (Pa. Super. Ct. 1999), aff'd in part, rev'd in part on other grounds, 565 Pa. 612, 777 A.2d 442 (2001) ....................................................... 17 Worldhomecenter.com, Inc. v. L.D. Kickler Co., Inc., No. 05-cv-3297, 2007 WL 963206, (E.D.N.Y. Mar. 28, 2007) ............................................................................................. 12 Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 7 of 33 1 I. INTRODUCTION Defendant Mylan Specialty L.P. (“Defendant” or “Mylan”) is a pharmaceutical company that has earned broad contempt from the public because of its abusive use of its monopoly on the life-saving epinephrine auto-injector, EpiPen. Since acquiring rights to the EpiPen, Defendant has increased the price of the once-affordable device by more than ten times to a stunning sticker price of about $600. Defendant’s actions have prevented patients in need from obtaining this essential item for their survival. Consistent with Defendant’s callous price hikes on this simple device, Defendant instantly jumped on the first suggestion within the medical community that doctors may want to consider prescribing two EpiPens instead of one. Relying on the largely unsupported recommendation of the National Institute of Allergy and Infectious Diseases (NIAID), written by an expert panel comprised of members that Defendant had funded, Defendant announced that it would no longer sell EpiPens in single packs and instead require consumers to purchase two at a time. Defendant usurped the role of the doctors, who until then had the freedom to prescribe either one or two EpiPens, under the false pretense that it was acting to ensure the safety of patients in need. Defendant’s conduct and its public statements failed to disclose the lack of significant scientific support for the purported need for two EpiPens and omitted that a single dose is effective. Defendant led consumers, such as Plaintiff Suzanne Harwood, to believe that two doses were necessary to treat anaphylaxis. The truth, however, is that the only people that needed EpiPens sold in two packs were the Mylan executives who sought to double the company’s sales. Defendant brings this motion to dismiss arguing incorrectly that compelling Plaintiff to pay for an additional and unnecessary EpiPen does not cause her a justiciable injury, when it is Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 8 of 33 2 well-established that overpayment is cognizable harm. Furthermore, contrary to Defendant’s arguments, Plaintiff has stated claims for violations of the New York General Business Law and the Pennsylvania Unfair Trade Practices and Consumer Protection Law because Defendant’s packaging and press releases would lead a reasonable consumer to believe that having two EpiPens was necessary. Likewise, Defendant’s forced sale of an additional EpiPen to Plaintiff unjustly enriched Defendant. Finally, Defendant fails to meet its heavy burden in attempting to strike Plaintiff’s class allegations. For the reasons stated below, the Court should deny Defendant’s Motion to Dismiss and Motion to Strike Plaintiff’s Class Allegations. II. STATEMENT OF FACTS For some, epinephrine, also known as adrenaline, is absolutely essential for living a normal life without fear. See ¶ 8. 1 Epinephrine is a lifesaving medication used to treat severe allergic reactions, including anaphylaxis. Id. In 2007, Defendant acquired Dey Pharmaceuticals, which holds the worldwide right to the EpiPen auto injector. ¶¶ 11-12. The EpiPen is an epinephrine injection device which simplifies the process of delivering epinephrine to the body to allow a patient to quickly inject the prescribed amount into the thigh through the device’s spring-loaded needle. ¶ 9. Patients are advised to carry the medication with them at all times for emergency use if they are at risk of severe allergic reactions. Id. Since acquiring rights to the EpiPen, Defendant has almost completely dominated the market for epinephrine auto-injectors. ¶ 12. And as its hold on the epinephrine auto-injector market grew into a monopoly, Defendant increased the price of the EpiPen rapidly. ¶ 13. Defendant has raised the price of the EpiPen from 1 All “¶__” references to are the “Class Action Complaint and Jury Demand (Dkt. 1).” Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 9 of 33 3 approximately $57 in 2007 to approximately $600 today. Id. Thus, what was once an affordable life-saving device is now cost-prohibitive to many of those who need it most. See ¶ 30. The enormous profits from its market-dominance and stratospheric pricing soon, however, became too little for Defendant. In December 2010, the NIAID, a division of the National Institute of Health, introduced “Guidelines for the Diagnosis and Management of Food Allergy in the United States.” ¶ 14. Defendant had funded members of the committee creating the guidelines. Id. The Guidelines indicated that doctors had the freedom to choose whether to prescribe one or two EpiPens but gave some limited information concerning the possible need for more than one dose. ¶¶ 15-16. Jumping at the opportunity to double its sales, Defendant usurped the role of the doctor and eliminated the EpiPen single packs it had been selling in favor of two packs, thus requiring patients to purchase two EpiPens. ¶ 20. Defendant’s decision to sell only two packs of EpiPens had little to do with patient’s health and safety, and everything to do with profit. ¶ 21-23. There is scant evidence that providing a second EpiPen would provide any benefit to patients. ¶ 23. Indeed, one of the key studies upon which Defendant relied to justify its decision shows that only a small percentage of people need a second dose. Id. Importantly, of those that did receive a second dose, all but one received it from a health care professional – a statistic which undercuts the need to carry a pair of EpiPens at all times. Id. Looking at the three studies cited in the NIAID, Exhibit A, for the proposition that multiple doses are sometimes required, it is clear that the studies provide too limited a view to make a sweeping recommendation: one of them looked at patients’ reasons for using or not using epinephrine at all, 2 the second was limited to food-induced anaphylaxis in 2 Simmons FE, et al, Anaphylaxis in the Community: Learning from the Survivors. J. Allergy Clinical Immunol., 2002 Sept; 110 (3): 341. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 10 of 33 4 children, 3 and the final study was limited to a small sample of food-induced anaphylaxis in 40 patients. 4 Exh. A to Def’s Mot. to Dismiss (ECF No. 25-2). The studies relied on in the World Allergy Organization (WAO) Guidelines are similarly deficient. For instance, in one of the few studies cited, only 13% of participants required a second dose of epinephrine and all of the second doses were administered by health care professionals. 5 As set forth below, by introducing evidence attempting to justify its practices, Defendant has gone far beyond the limited purposes of a motion to dismiss and instead seeks to have the Court determine factual issues at this early stage of the litigation, such as whether the science supports Defendant's practices. Even if these types of arguments were not premature, in its statements to consumers, Defendant misstated and omitted the science underlying the NIAID report, omitted its ties to the members of the Expert Panel that drafted it, omitted the fact that EpiPens are effective in single doses, misled consumers to believe that two EpiPens were required for effectiveness, and used the NIAID report and WAO Guidelines as an excuse to require consumers to buy extra, unneeded EpiPens which are likely to go to waste. ¶ 28. Plaintiff has properly set forth her claims and has alleged that she has been damaged by Defendant's practices. Defendant has failed to meet its heavy burden on this motion to dismiss and similarly has failed to demonstrate that the Court should strike Plaintiff's class allegations. As set forth below, those types of arguments are more appropriate when Plaintiff makes her class certification motion. 3 Jarvinen JM, et al., Use of Multiple doses of Epinephrine in Food-Induced Anaphylaxis in Children. J. Allergy Clinical Immunol., 2008 July; 122 (1): 133 -8. 4 Oren E, et al., Food-induced Anaphylaxis and Repeated Epinephrine Treatment, Ann. Allergy Asthma Immunol, 2007 Nov.; 99 (5); 429-32. 5 Manicannan, Veena, Factors Associated with Repeated Use of Epinephrine for the Treatment of Anaphylaxis, Ann. Allergy Asthma Immunol., 2009; 103: 395-400. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 11 of 33 5 III. DEFENDANT FAILS TO MEET ITS HEAVY BURDEN ON THIS MOTION “[Rule] 12(b)(1) permits a defendant to move for dismissal of a complaint if the court lacks subject-matter jurisdiction to hear the case. Among other things, a defendant may challenge the court’s subject-matter jurisdiction based on the plaintiff’s lack of standing.” Arrington v. Colortyme, Inc., 972 F. Supp. 2d 733, 738 (2014) (citing ACLU-NJ Township of Wall, 246 F.3d 258, 261 (3d Cir. 2001)) (Bissoon, J.). Motions to dismiss under Rule 12(b)(1) may be treated as either a “facial or factual” challenge to the court’s subject matter jurisdiction. Id. (citation omitted). Under a facial attack, the movant challenges the legal sufficiency of the claims and the court considers only “the allegations of the complaint and the documents referenced therein and attached thereto in the light most favorable to the plaintiff.” Gould Electronics Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000). Likewise, “[i]n assessing the sufficiency of the complaint pursuant to a motion to dismiss under [Rule] 12(b)(6), the court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff.” In re Milo’s Dog Treats Consol. Cases, 9 F. Supp. 3d 523, 529 (W.D. Pa. 2014) (citing Odd v. Malone, 538 F.3d 202, 2015 (3d Cir. 2008)) (Bissoon, J.). “The question is not whether the plaintiff will prevail in the end but, rather, is whether the plaintiff is entitled to offer evidence in support of his or her claims.” Id. (citation omitted). Generally, a court may only consider the allegations contained in the complaint, exhibits incorporated by reference into the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Ultimately, a Rule 12(b)(6) motion to dismiss should be denied where a complaint states a claim for relief “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In this case, Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 12 of 33 6 Plaintiff meets Article III’s low standing threshold and plausibly states all her claims for relief. Thus, Defendant’s motion should be denied. IV. LEGAL ARGUMENT A. Plaintiff Has Article III Standing to Sue Harwood has adequately alleged each of the elements required to establish standing. Standing requires that a plaintiff allege “(1) an injury-in-fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 272 (3d Cir. 2016). But for Defendant’s decision to package EpiPens in pairs under and its misleading justification which suggested to Plaintiff and other consumers that two EpiPens were required for effectiveness, Plaintiff would not have purchased a two pack, or would only have done so because not having a single EpiPen could have killed her. ¶ 55. Defendant’s manipulative and coercive profit-scheme financially harmed Plaintiff by forcing her to buy an extra EpiPen that, had she known the true facts, she would not have chosen to purchase. ¶ 56. Defendant improperly attempts to impose a heightened pleading requirement into the standing analysis. For instance, Defendant makes much of the fact that Plaintiff did not indicate the price she paid. Def’s Br. at 8-9. The only fact of importance, however, is that Defendant’s conduct misled her into buying two EpiPens, instead of one. Whether it harmed her by two dollars or two hundred dollars is irrelevant for the purposes of standing. Nor may Defendant insert its own factual allegation that Plaintiff’s insurer paid for the EpiPens. Plaintiff alleged that she purchased the EpiPens, ¶ 55, and at this stage of the litigation the Court must draw all reasonable inferences in favor of Plaintiff. Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Similarly, Defendant’s senseless contention that Plaintiff’s detailed “Common Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 13 of 33 7 Allegations” do not apply to Plaintiff ignores that what is common to both Plaintiff and the Class necessarily applies to Plaintiff. Unlike In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235 (3d Cir. 2012), upon which Defendant relies, Plaintiff does not seek to establish standing “on the basis of drug purchases made by the other . . . [p]laintiffs” or class members. 678 F.3d at 247. By alleging that she bought an extra EpiPen because of Defendant’s manipulative and coercive conduct, she has alleged an injury that has affected her “in a personal and individual way.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 n.1 (1992). This is sufficient to satisfy standing. Indeed, “[t]he fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Schuchardt v. President of the United States, 839 F.3d 336, 345 (3d Cir. 2016) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 n.7 (2016)). “The victims’ injuries from a mass tort, for example, are widely shared, to be sure, but each individual suffers a particularized harm.” Id. That Defendant harmed Plaintiff in the same manner that it harmed each putative class member does nothing to undercut Plaintiff’s standing. Nor has Plaintiff suffered only a hypothetical future injury, as Defendant asserts. Def’s Br. at 8-11. Plaintiff does not attempt to meet Defendant’s bizarre standing theory requiring she allege, to a certainty, that the second EpiPen will be unnecessary in the event she needs the first. Instead, Plaintiff establishes standing more simply: had Defendant not misled Plaintiff into believing purchasing a two-pack of EpiPens were medically necessary, Plaintiff would not have chosen to purchase a second EpiPen. ¶ 56. Plaintiff therefore alleges a concrete and particularized financial harm—not some outlandish future harm dependent on a chain of contingencies. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 14 of 33 8 Defendant’s analogy of its product to insurance is inapt. Unlike insurance, where insureds have a choice as to how much coverage they want and which insurer they want it from, Plaintiff had no choice but to purchase an extra EpiPen and she had no choice as to what company she would purchase it from. Plaintiff bought the two-pack with the understanding that Defendant would sell only two-packs if the benefit of having two doses was worth the extra cost of an EpiPen. ¶¶ 56-58. Only if a car insurer misled the owner of a Pinto to insure her car as if it were a Rolls Royce would there be any comparison. See Smith v. State Farm Mutual Auto. Ins. Co., 93 Cal. App. 4th 700, 721 (Cal. Ct. App. 2001) (holding insurers’ business practice in violation of consumer protection law where insurers forced consumers to purchase uninsured motorist coverage for each of their vehicles or to waive it as to all vehicles because it put consumers in the position of choosing between “paying wasteful increased premiums or going without any uninsured motorist coverage.”). Defendant’s deceptive and coerced sale of an extra EpiPen to Plaintiff is sufficient to establish standing. Defendant’s reliance on Cottrell v. Alcon Labs., Inc., No. CV 14-5859(FLW), 2016 WL 1163163 (D.N.J. Mar. 24, 2016) (currently pending appeal) does not help its argument. In that case, the Court held that a plaintiff challenging the design of eye drop bottle tips which release drops that were too large, thereby wasting eyedrops and raising costs, did not have standing because plaintiff’s argument “assumes as true that manufacturers of eye drops would price their medication solely based on the volume of the fluid contained in the bottles.” Id. at *5. That assumption does not exist in this case. Defendant does not, and cannot, contend that it would charge the same price to consumers regardless of whether it sold one EpiPen or two EpiPens. Unlike the amount of fluid in an eye drop bottle, each of the EpiPens contains not only its own Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 15 of 33 9 dose of epinephrine, but also its own delivery system. Plaintiff has thus alleged facts plausibly suggesting that Defendant would charge less for a single EpiPen than for two EpiPens. The holding in Cottrell was nevertheless incorrect. A plaintiff forced to purchase additional, unusable, or unwanted products may bring a justiciable case based on those facts. See, e.g., Pennsylvania Funeral Directors Ass'n, Inc. v. F.T.C., 41 F.3d 81, 92 (3d Cir. 1994) (affirming FTC determination that funeral homes’ bundling of services unfairly forced upon consumers unwanted and unneeded services); Harry & Bryant Co. v. F.T.C., 726 F.2d 993, 999– 1000 (4th Cir. 1984) (bundling of funereal services “caused substantial consumer injury, which could not be reasonably avoided by consumers, and did not offer corresponding benefits.”); Katz v. Live Nation, Inc., No. 09-3740MLC, 2010 WL 2539686, at *4 (D.N.J. June 17, 2010) (violation of consumer protection law where ticket seller forced consumers to purchase parking along with their concert ticket regardless of whether the concert-goer planned to drive to concert); In re Bextra & Celebrex Mktg., Sales Practices & Prod. Liab. Litig., No. MDL 05- 01699 CRB, 2007 WL 2028408, at *5 (N.D. Cal. July 10, 2007) (rejecting argument that “plaintiffs have not suffered any injury because they received exactly what they paid for”). Like these cases, Defendant forced Plaintiff to purchase an unwanted and unneeded item by bundling it with a product she did need. Plaintiff therefore has suffered injury and has standing. B. Harwood States a Claim for a Violation of the New York Deceptive Trade Practices Act Plaintiff alleges all the elements of a New York Deceptive Trade Practices Act (“NYDTPA”) claim. The NYDTPA prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in [New York].” N.Y. Gen. Bus. Law § 349(a). A NYDTPA claim has three elements: “(1) the defendant’s challenged acts or practices must have been directed at consumers, (2) the acts or practices must have been Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 16 of 33 10 misleading in a material way, and (3) the plaintiff must have sustained injury as a result.” Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir. 2007). “As indicated by the statute’s ‘expansive’ language, section 349 was intended to be broadly applicable, extending far beyond the reach of common law fraud.” New York v. Feldman, 210 F. Supp. 2d 294. 300-01 (S.D.N.Y. 2002) (collecting cases); see also Karlin v. IVF America, Inc., 712 N.E.2d 662, 665 (N.Y. 1999) (“[The NYDTPA] ‘provide[s] needed authority to cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State.’”). 1. Plaintiff Alleges a Deceptive Business Act or Practice 6 Defendant engaged in deceptive business acts or practices under the NYDTPA by making misrepresentations, omitting material information and engaging in other unfair acts. “The New York Court of Appeals has adopted an objective definition of ‘misleading,’ under which the alleged act must be ‘likely to mislead a reasonable consumer acting reasonably under the circumstances.’” Id. Omissions, particularly “where the business alone possesses material information that is relevant to the consumer and fails to provide [the] information,” can also form the basis of liability. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 745 (N.Y. 1995). Generally, courts take a holistic approach to the purported deceptive business practice to determine whether a materially misleading act has been alleged under the NYDTPA. See Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598, 604-05 (N.Y. 1999) (“[T]he merger provisions . . . are not determinative of plaintiffs’ section 6 Plaintiff alleges the first element of the NYDTPA, i.e. that Defendant’s conduct was directed at consumers. In order to satisfy that element, a plaintiff “must demonstrate that the acts or practices have a broader impact on consumers at large.” Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 647 N.E.2d 741, 744 (N.Y. 1995). Here, Plaintiff alleges that Defendant exclusively sold EpiPens in two-packs to consumers throughout the United States since at least 2011. ¶¶ 12, 17-18, 26, 37. Therefore, Plaintiff alleges that Defendant’s misconduct had a broad impact on consumers, and the first element of the NYDTPA is pleaded. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 17 of 33 11 349 claims, which are based on deceptive business practices, not on deceptive contracts.”); Sims v. First Consumers Nat. Bank, 303 A.D.2d 288 (N.Y. App. Div. 2003) (“The gist of plaintiffs’ deceptive practices claim is that the typeface and location of the fee disclosures, combined with high-pressure advertising, amounted to consumer conduct that was deceptive or misleading in a material way . . . .”); Relativity Travel, Ltd. v. JP Morgan Chase Bank, No. 601075/05, 2006 WL 2918081, at *3 (N.Y. Sup. Ct. Feb 14, 2006) (“The issue is not simply whether the Deposit Account Agreement was deceptive, but whether Chase’s overall business practices in connection with the charge were deceptive.”). Here, Plaintiff alleges facts showing that Defendant’s business practices misled reasonable consumers. Among other things, Defendant issued a press release citing a guideline from the National Institute of Allergy and Infectious Diseases (“NIAID”) without disclosing that Defendant had funded several members of that committee. ¶ 14. Similarly, Defendant misstated and omitted the science underlying the need for administering two doses of epinephrine, including that (1) one of the key studies relied upon by Defendant shows that only a small percentage of individuals required a second dose of epinephrine; (2) of those requiring a second dose, all but one received the second dose from a health care professional; and (3) the need for two packs in adults has not been reliably studied. Id. at ¶ 23. While continuing to sell EpiPens in single doses throughout the world, Defendant misused the NIAID recommendation as a means to force EpiPen two-packs upon United States consumers who had no other meaningful choice besides Defendant's EpiPens, substantially increasing sales and ballooning Defendant’s bottom- line. ¶¶ 13, 21-22, 26-31 (noting the “$600 or more” price tag of EpiPens). Thus, Defendant's misleading course of conduct satisfies the second element of the NYDTPA. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 18 of 33 12 Defendant misconstrues the law and Plaintiff’s allegations, wrongly arguing that Plaintiff does not plead a prerequisite deceptive act or practice. Def. Br. at 12-13 (citing Ex. D). But courts have held comparable allegations were sufficient to allege deception under the NYDTPA. For instance, in In re Methyl Butyl Ether (“MTBE”) Products, 175 F. Supp. 2d 593 (S.D.N.Y. 2001), the court held the plaintiffs alleged a claim under the NYDTPA where the defendants, multiple petroleum companies, “distributed pamphlets and made other misrepresentations in order to mislead the public and garner consumer acceptance of gasoline containing MTBE.” Id. at 630-31; see also Mastercard International, Inc., No. 03-cv-9826, 2005 WL 1324972, at *4 (S.D.N.Y. 2005) (finding actionable deception where the defendant went “to great efforts to conceal” the true nature of credit card fees). 7 Here, Defendant similarly engaged in misleading acts and practices—including misrepresenting and omitting key science and other facts—to lull consumers and conceal Defendant’s true purpose: to vastly increase sales by compelling consumers to purchase two-packs of already over-priced EpiPens. ¶¶ 14, 18-30. 8 7 On the other hand, Defendant relies on cases where the plaintiffs failed to allege any form of deception. For instance, in Cunningham v. Bayer AG, No 603820/00, 2003 WL 25780718 (N.Y. Sup. Ct. 2003), the defendants’ press release disclosed all material information. See also Worldhomecenter.com, Inc. v. L.D. Kickler Co., Inc., No. 05-cv-3297, 2007 WL 963206, at *5 (E.D.N.Y. Mar. 28, 2007) (The plaintiff alleged that a vertical restraint of trade between manufacturers and distributors without any element of deception.). Here, despite its careful cherry-picking (Defs. Br. at 12), Defendant misrepresented and failed to disclose a substantial amount of material information to consumers, including a complete and fair review of the science concerning epinephrine doses and the prior funding of several members of NIAID. ¶¶ 14, 21-27. 8 Defendant also argues that charging excessive prices cannot constitute a deceptive act under the NYDTPA. Def. Br. at 13 n.9. In making this argument, Defendant fails to note that charging excessive prices “without more” cannot constitute a deceptive practice. Super Glue Corp. v. Avis Rent A Car Sys., Inc., 159 A.D.2d 68, 71 (N.Y. Sup. Ct. 1990) (emphasis supplied); Sand v. Ticketmaster-N.Y., Inc., 207 A.D.2d 687, 687 (N.Y. App. Div. 1994) (The challenged excessive fees were fully disclosed by the defendant.). However, such a rule has no application in a case like this one where Defendant’s grossly excessive prices are just one facet of its overall deceptive business practices. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 19 of 33 13 2. Plaintiff Alleges That Defendant’s Acts or Practices Caused Her Actual Injury The NYDTPA grants a right of action to “any person who has been injured by reason of any violation of this section.” N.Y. Gen. Bus. Law § 349(h). “[W]hile the statute does not require proof of justifiable reliance, a plaintiff seeking compensatory damages must show that the defendant engaged in a material deceptive act or practice that caused actual, although not necessarily pecuniary, harm.” Oswego, 647 N.E.2d at 745. A plaintiff can meet this standard by alleging “that, on account of a materially misleading practice, she purchased a product and did not receive the full value of her purchase.” Orlander v. Staples, 802 F.3d 289, 301 (2d Cir. 2015); In re Anthem Inc. Data Breach Litigation, 162 F. Supp. 3d 963, 995-96 (N.D. Cal. Aug. 17, 2016) (finding defendants alleged failure to disclose that “their computer systems and data security practices were inadequate” to protect personal identification sufficient to plead causation and actual damages); Goldemberg v. Johnson & Johnson Consumer Companies, Inc., 8 F. Supp. 3d 467, 480-81 (S.D.N.Y. 2014) (finding causation pleaded based on the plaintiff’s allegation that the defendant’s “deceptive misrepresentations and omissions . . . have already deceived and misled Plaintiff.”). In this case, Plaintiff alleges actual damages under the NYDTPA. More specifically, she alleges that she “purchased a two pack of EpiPens at an inflated price and has been damaged by [Defendant’s] conduct” and that she “would not have purchased the two packs had [she] been fully informed regarding the above-referenced policies and procedures, or only would have done so in light of the risk to [her] health[.]” ¶¶ 2, 56. Put differently, Defendant foreclosed the possibility of purchasing EpiPens in single-packs through deceptive acts and practices, and as a result, it was able to embed unnecessary and extra cost into each EpiPen two-pack. Id. Plaintiff Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 20 of 33 14 lost value when she purchased unneeded EpiPens. Id. Such allegations of causation and injury suffice to state a claim under the NYDTPA. Defendant attempts to improperly graft a reliance requirement onto the NYDTPA by arguing Plaintiff fails to allege that the statements in the press release “caused her to purchase EpiPen devices[.]” Defs. Br. at 14. However, “the New York Court of Appeals has held that Plaintiff bringing claims under GBL § 349 must simply raise a reasonable inference of causation rather than demonstrating reliance.” In re Anthem, 162 F. Supp. 3d at 996 (citing Stutman v. Chemical Bank, 731 N.E.2d 608, 612-13 (2000)). For example, in Phifer v. Home Savers Consulting Corp., No. 06-cv-3841, 2007 WL 295605, (E.D.N.Y. Jan. 30, 2007), the court concluded that the Plaintiff could be “wholly ignorant of deceptive statements” in documents provided to and signed by the plaintiff during the purported refinancing of her home. Id. at *6. Instead, it sufficed that the deceptive documents were an integral part of the plaintiff being stripped of equity in her property. Id. In this case, Defendant's misrepresentations, omissions, and unconscionable practices were integral in causing Plaintiff to purchase an unneeded and unwanted EpiPen. ¶¶ 53-56. That is enough to raise a reasonable inference of causation under the NYDTPA. Defendant also improperly suggests that the Court make factual inferences against Plaintiff in deciding its Rule 12(b)(6) motion. Def. Br. at 14 (“There could be (and likely were) myriad reasons why Plaintiff purchased EpiPen products . . . .”). However, courts have instructed that such factual inquiries concerning causation and damages under the NYDTPA “are more appropriately the subject of discovery, rather than what is required to satisfy the limited pleading requirements of Rule 8(a)[.]” Perlman ex rel. Perlman v. McDonald’s Corp., 396 F.3d 508, 511-512 (2d Cir. 2005) (also noting Rule 9(b)’s particularly requirements do not apply to Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 21 of 33 15 Gen. Bus. Law § 349 claims). Thus, at this stage of the litigation, it is enough that Plaintiff alleges that she purchased EpiPens at inflated prices or would not have purchased EpiPens in two-packs absent Defendant’s misleading practices in order to state a claim under the NYDTPA. ¶¶ 2, 53-56. C. Plaintiff Has Stated a Claim for Mylan’s Violation of the Pennsylvania Unfair Trade Practices and Consumer Law 1. Plaintiff May Bring a Claim under the UTPCL The Pennyslvania UTPCPL “makes it unlawful for individuals or businesses to engage in unfair methods of competition or unfair or deceptive acts or practices in the conduct of trade or commerce.” Mikola v. Penn Lyon Homes, Inc., No. 4: cv–07–0612, 2008 WL 2357688, at *3 (M.D. Pa. June 4, 2008) (citing 73 P.S. § 201–3). It defines “trade and commerce” as including “any trade or commerce directly or indirectly affecting the people of this Commonwealth.” 73 P.S. § 201–2(3). The Pennsylvania Supreme Court has indicated that the statute should be liberally construed in order to effectuate its primary purpose of preventing fraud. Com., by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 459, 329 A.2d 812, 816 (1974). Mylan cites three non-binding federal district court cases for the proposition that plaintiffs living outside of Pennsylvania may not bring a claim under the UTPCL or, Defendant asserts, must have engaged in a transaction within the state. Def’s Br. at 15. That is not, however, the law. Nothing in the UTPCL, 73 Pa. Stat. § 201-1 et seq. limits the applicability of the Act or the remedies thereunder to Pennsylvania residents. The definition of “person” bears no geographical limitation, and the definition of “trade” and “commerce” only requires that the commercial activity directly or indirectly affect the people of Pennsylvania. 73 Pa. Stat. § 201-2. Indeed, one of the cases on which Defendant relies acknowledges that “[t]here is no decision by a Pennsylvania state court limiting application of the UTPCPL to Pennsylvania residents.” Baker Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 22 of 33 16 v. Family Credit Counseling Corp., 440 F. Supp. 2d 392, 413 (E.D. Pa. 2006). While some federal courts have wrongly accepted the argument that Defendant makes here, courts within this district have explicitly rejected the argument and found that “no such blanket rule exists and permitted UTPCPL claims brought by a non-resident of Pennsylvania to survive a motion to dismiss.” Sbarra v. Horizontal Expl., LLC, No. CV 14-866, 2016 WL 3268860, at *7 (W.D. Pa. June 15, 2016); Haggart v. Endogastric Sols., Inc., No. CIV.A. 10-0346, 2011 WL 466684, at *7 (W.D. Pa. Feb. 4, 2011). These cases, consistent with statute’s prohibition against unfair or deceptive practices which directly or indirectly affect the people of Pennsylvania, have required only that a claim have a “sufficient nexus” with Pennsylvania. Haggart, 2016 WL 3268860, at *7; Sbarra, 2016 WL 3268860, at *7. Because Mylan is headquartered in Pennsylvania, made the decision to package EpiPens only in pairs in Pennsylvania, and issued misleading statements to justify that decision from Pennsylvania, Plaintiff’s UTPCL claim has a sufficient nexus with Pennsylvania to allow it to withstand a motion to dismiss. 9 2. Defendant’s Conduct and Statements Were a Misleading Justification to Gouge a Class of People Dependent on Its Product for Survival As discussed in Section IV.B above, Defendant has misstated the law and ignored the gravamen of Plaintiff’s case. In 1996, the UTPCPL was amended to revise Section 201-2(4)(xxi) to add “deceptive conduct” as a prohibited practice. See Act of Dec. 4, 1996, P.L. 906, No. 146, § 1 (effective Feb. 2, 1997). The current catchall provision proscribes “fraudulent or deceptive 9 While Plaintiff disagrees with the reasoning of Magistrate Judge Cynthia Reed Eddy’s decision in Danganan v. Guardian Prot. Servs., No. CV 15-1495, 2016 WL 3977488, at *1 (W.D. Pa. July 25, 2016), the case is nevertheless distinguishable because the deceptive conduct that Plaintiff challenges here was performed in the state of Pennsylvania. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 23 of 33 17 conduct which creates a likelihood of confusion or of misunderstanding.” 73. Pa. Stat. § 201- 2(4)(xxi). Pennsylvania state courts have endorsed the state Supreme Court’s directive to interpret the UTPCPL liberally to effectuate its purposes of consumer protection. See Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 2012 PA Super 60, 40 A.3d 145, 154 (2012). Accordingly, “[m]ost Pennsylvania federal courts have similarly concluded the 1996 amendment lessened the degree of proof required under the UTPCPL catchall provision.” Id. at 153. Plaintiff’s allegations that Defendant overstated the need for individuals to carry two EpiPens in order to sell more EpiPens at an already-staggering price easily meet this pleading standard. While Defendant relies entirely on the fact that it “accurately represent[ed] the contents of the NIAID and WAO guidelines,” it ignores that under the UTPCL, “[a] statement which creates a deceptive impression upon purchasers is proscribed although the statement might technically be true.” Weinberg v. Sun Co., 740 A.2d 1152, 1168 n. 22 (Pa. Super. Ct. 1999), aff'd in part, rev'd in part on other grounds, 565 Pa. 612, 777 A.2d 442 (2001). While Defendant’s press release may be technically true, it omitted that of the roughly 20% of those who need a second dose of ephedrine nearly all study-participants had that second dose administered by a medical professional, thus relieving the need for any particular consumer to have two EpiPens on hand. ¶ 23. Defendant omitted that studies have not reliably found any benefit at all to prescribing two EpiPens instead of one. Id. Because Defendant’s press releases justifying its attempt to remove that decision from doctors would lead a reasonable consumer to believe that there was a significant need and benefit to having two EpiPens, Defendant has engaged in “fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding.” The very act of selling EpiPens only in pairs would lead a reasonable consumer to believe she should have two and is in itself an unfair business practice that the market would not tolerate Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 24 of 33 18 absent Defendant’s monopoly on the EpiPen. See Mazur v. Milo's Kitchen, LLC, No. CIV.A. 12- 1011, 2013 WL 3245203, at *7 (W.D. Pa. June 25, 2013) (Bissoon, J.) (“a ‘plaintiff may succeed under the catch-all provision of the UTPCPL by satisfying the elements of common law fraud or by otherwise alleging deceptive conduct.’” (citation omitted) (emphasis added)); Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F. Supp. 2d 380, 421 (E.D. Pa. 2010) (“the word ‘deceptive,’ along with the Pennsylvania Supreme Court's broad construction of the PUTPCPL as a remedial law designed to address both fraudulent and unfair business practices, renders previous interpretations requiring plaintiffs to allege common law fraud erroneous.”); Cohen v. Ohio Cas. Grp., No. CIV.A.07-CV-1620, 2009 WL 586123, at *5 n.3 (W.D. Pa. Mar. 6, 2009) (Bissoon, J.) (“allegations of deception are sufficient to state a claim under the UPTCPL”). Defendant’s flimsy justification for forcing upon a captive market a requirement to double their purchases does not absolve it from what was at bottom an unscrupulous tactic, consistent with Defendant’s overall pricing approach, to extort its customers. This unfair method of competition is a “deceptive act” under the UTPCPL. Furthermore, Defendant ignores that by omitting from its press release that several members of the NIAID’s executive committee had received funding from Dey Pharmaceuticals, ¶ 14, Plaintiff has plausibly alleged that its press release caused a “likelihood of confusion or of misunderstanding as to affiliation, connection or association with . . . another.” 73 Pa. Stat. § 201-2 (4) (iii). 3. Plaintiff Justifiably Relied on Defendant’s Press Release Defendant’s flat out denial of Plaintiff’s allegation of justifiable reliance on Defendant’s deceptive and misleading press release is baffling. Plaintiff has alleged that Defendant has grossly overstated the necessity of having two EpiPens and specifically alleges that she relied on Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 25 of 33 19 Defendant’s statements and that she “would not have purchase the two packs had [she] been fully informed” of how non-essential a second EpiPen was. ¶¶ 56; 61. To the extent justifiable reliance is required, Plaintiff has alleged it. But justifiable reliance is not required for “deceptive acts” under the catchall provision of the UTPCPL. Defendant has ignored a large body of law establishing the post-amendment pleading standard and cited a single case addressing the post-amendment standard. Def’s Br. at 18 (citing Kern v. Lehigh Valley Hosp., Inc., 2015 PA Super 19, 108 A.3d 1281 (2015)). While the Pennsylvania Supreme Court granted review of the issue in an appeal in 2014, it ultimately did not reach the issue, Grimes v. Enter. Leasing Co. of Philadelphia, LLC, 629 Pa. 457, 463, 105 A.3d 1188, 1192 n.3 (2014), the weight of authority suggests that “deceptive acts” do not need to satisfy the elements of common fraud and thus justifiable reliance is not necessary. See, e.g., Toth v. Nw. Sav. Bank, No. GD-12-008014, 2013 WL 8538695, at *5 (Pa. Com. Pl. Mar. 1, 2013) (“a showing of actual reliance should not be required when ascertainable losses necessarily flow from the fraud or deceit . . . the Consumer Protection Law should not be construed to require the named plaintiffs and class members to offer speculative testimony as to whether they would have purchased the car (Example Two) or placed orders (Example Three) even if they had known that they would be cheated.”); Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737 F. Supp. 2d 380, 421 (E.D. Pa. 2010); Lorah v. SunTrust Mortg., Inc., No. CIV.A. 08-0703, 2010 WL 5342738, at *4 n.9 (E.D. Pa. Dec. 17, 2010) (“This Court joins many (although not all) courts in this District in predicting that the Pennsylvania Supreme Court would permit a plaintiff who alleges ‘deceptive’ conduct to proceed without proving all of the elements of common law fraud.”); Mertz v. Donzi Marine, Inc., No. 04-55 ERIE, 2007 WL 710263, at *11 (W.D. Pa. Mar. 6, 2007) (“contrary to the Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 26 of 33 20 Defendants' argument, Plaintiff does not have to prove that he relied on statements or omissions by the Defendants that rise to the level of fraudulent activity”). Because Plaintiff would not have purchased a two-pack of EpiPens unless she believed that there was a medical justification significant enough to incur the substantial cost of having two EpiPens, Plaintiff easily meets the relaxed post-amendment reliance standard. D. Defendant Was Unjustly Enriched by Plaintiff By overstating the need and therefore the value of having an extra EpiPen, Defendant unfairly forced Plaintiff to purchase an extra EpiPen for its own economic benefit. Defendant’s unfair profit should rightly be returned to Plaintiff. ¶¶ 71-76. Despite Defendant’s argument to the contrary, Defendant’s conduct is egregious enough to sustain a claim under either New York or Pennsylvania law, which are substantially the same. Compare Germain v. Wisniewski, No. 15- 1279, 2016 WL 4158994, at *4 (W.D. Pa. Aug. 5, 2016) (Bissoon, J.) (“The elements necessary to show unjust enrichment under Pennsylvania law are: ‘(1) benefits conferred on defendant by Plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.’” (citation omitted)) with Spirit Locker, Inc. v. EVO Direct, LLC, 696 F. Supp. 2d 296, 306 (E.D.N.Y. 2010) (“To prevail on a claim of unjust enrichment under New York law, the plaintiff must establish (1) that the defendant was enriched; (2) that the enrichment was at the plaintiff's expense; and (3) that the circumstances are such that in equity and good conscience the defendant should return the money or property to the plaintiff.” (internal quotation omitted)). Defendant incorrectly argues that Plaintiff’s unjust enrichment claim should be dismissed because Plaintiff does not specify under which state laws she is pursuing this claims. Def’s Br. at Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 27 of 33 21 18-19. Defendant tries to accelerate the choice of law question but the Court, however, need not conduct a choice of law analysis because, as detailed above, Plaintiff has adequately pleaded her unjust enrichment claim under both New York and Pennsylvania law. Regardless, the choice of law analysis is more properly undertaken in the context of the class certification predominance analysis. See In re Hypodermic Prods. Antitrust Litig., No. 05-cv-1602, 2007 WL 1959225, at *16 (D.N.J. June 29, 2007) (“To the extent that Defendant moves to dismiss Plaintiffs’ claims of unjust enrichment on the basis that certain individual states impose additional requirements . . . the Court likewise determines that it is premature to consider these requirements on a state by state basis, at this time.”); Rios v. State Farm Fire and Cas. Co., 469 F. Supp. 2d 727, 740-42 (S.D. Iowa 2007) (denying motion to strike and dismiss nationwide class allegations on breach of contract and unjust enrichment claims as premature). Moreover, because a claim for unjust enrichment is universally recognized and uniform, Plaintiff's allegations are sufficient to survive dismissal. Courts routinely recognize that the elements of an unjust enrichment claims are virtually identical in all states. See In re Mercedes Benz Tele Aid Contract Litig., 257 F.R.D. 46, 58 (D.N.J. 2010) (“While there are minor variations in the elements of unjust enrichment under the laws of the various states, those differences are not material and do not create an actual conflict.”); In re Ford Motor Co. E-350 Van Prod. Liab. Litig. (No. II), No. 03-cv-4558, 2008 WL 4126264, at *21 (D.N.J. Sept. 2, 2008) (holding that the state laws of unjust enrichment are “universally recognized causes of action that are materially the same throughout the United States.” (citing In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 697 n.40 (S.D. Fla. 2004)). Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 28 of 33 22 E. Plaintiff Challenges Defendant’s Unfair and Deceptive Sale of EpiPens in Two- Packs Defendant concedes that “Plaintiff’s allegations largely focus on Mylan’s decision to sell EpiPen devices in packs of two.” Def’s Br. at 21. Indeed, Plaintiff alleges that Defendant vastly overstated the usefulness of having two EpiPens instead of one, misstated scientific studies, and omitted crucial facts for consumers to understand the true need, or lack thereof, of having an extra EpiPen on hand. Notably, Defendant does not argue that the decision to sell EpiPens in two-packs only is protected by patent law, nor that patent law allows it to misrepresent the need for two EpiPens through misleading public statements. “It is unquestioned that [a state] has general police power within its borders and that whatever rights are secured to inventors must be enjoyed in subordination to this general authority of the State over all property within its limits.” Biotechnology Indus. Org. v. D.C., 496 F.3d 1362, 1373 (Fed. Cir. 2007) (internal quotation omitted). There is no doubt that a state may prohibit unfair and deceptive conduct and that it may enforce the return of unjustly retained profit. While Defendant’s abhorrent pricing strategy may not be the focus of Plaintiff’s claims, it tends to show that the true motive for its decision to package EpiPens in pairs was not “so that individuals at risk for anaphylaxis would have access to at least doses of epinephrine in the event of a severe allergic reaction,” as Defendant asserts (Br. at 5), but to double its sales under the false pretense that having two EpiPens was necessary. See ¶ 22. Thus, Plaintiff’s claims are not preempted by patent law or any other federal law. F. The Court Should Not Strike Plaintiff’s Class Allegations The Court should also reject Defendant’s alternate argument that Plaintiff’s class allegations be struck under Rule 12(f), which permits the Court to “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 29 of 33 23 At the outset, Defendant’s motion to strike is premature. Courts within the Third Circuit very rarely grant motions to strike class allegations based solely on the allegations contained in a complaint because “[i]n most cases, some level of discovery is essential.” Goode v. LexisNexis Risk & Information Analytics Group, Inc., 284 F.R.D. 238, 246 (E.D. Pa. 2012); see also Richardson v. Bledsoe, 829 F.3d 273, 281 (3d Cir. 2004) (“[T]he class action process should be able to ‘play out’ according to the directives of Rule 23 and should permit due deliberation by the parties on the class certification issues.”). Courts are particularly hesitant to strike class allegations touching on Rule 23’s predominance inquiry due to the complexity of that determination, and because a court “may have to venture into the territory of a claim’s merits and evaluate the nature of the evidence.” Landsman & Funk PC, 640 F.3d 72, 93 (3d Cir. 2011); Gregory v. Metro Auto Sales, Inc., 158 F. Supp. 3d 302 (E.D. Pa 2016) (declining to strike UTPCPL class allegations because such a “determination requires a ‘rigorous analysis’”). Generally speaking, “the proper avenue is to oppose the plaintiff’s motion for class certification.” See Korman v. Walking Co., 503 F. Supp. 2d 755, 762 (E.D. Pa. 2007). Given these well-established standards, the Court should allow the proceedings to unfold in an ordinary fashion and address the propriety of class certification only after the parties have had discovery and the opportunity to fully brief the issue. See Fed. R. Civ. P. 23(c)(1)(A) (2003 Committee Notes) (emphasizing the importance of a measured and deliberate decision on the certification of a proposed class). Defendant cannot meet its heavy burden by suggesting— without support—that “no amount of discovery will demonstrate the class can be maintained,” [Defs. Br. at 22],” particularly where there are a number of complex factual and legal issues for the parties to unravel, including whether a nationwide class can be maintained under Rule 23(b)(2) and Rule 23(b)(3). See Forcellati v. Hylands, 876 F. Supp. 2d 1155, 1159 (C.D. Cal. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 30 of 33 24 2012) (“Courts rarely undertake choice-of-law analysis to strike class claims at this early stage in litigation . . . . Accordingly, Defendants’ Motion is DENIED inasmuch as it seeks to strike the nationwide class claims.”). Thus, Defendant’s effort to scuttle Plaintiff’s class allegations prematurely and without discovery should be rejected. Moreover, Plaintiff’s claims are amenable to resolution on a class-wide basis despite Defendant’s conclusory argument that “reliance and causation are inherently individual.” Defs. Br. at 22. Courts routinely certify classes for claims brought pursuant to the NYDTPA, UTPCPL, as well as for unjust enrichment. E.g., In re Scotts EZ Seed Litigation, 304 F.R.D. 397, 409-10 (S.D.N.Y. 2015) (certifying claims under the NYDTPA and unjust enrichment under California law); Jermyn v. Best Buy Stores, L.P., 256 F.R.D. 418, 435 (S.D.N.Y. 2009) (certifying claims under the NYDTPA and unjust enrichment under New York law); Allen v. Holiday, 249 F.R.D. 166 (E.D. Pa. 2008) (certifying UTPCPL claims). This is so because, as discussed in greater detail above, each of Plaintiff’s claims is “capable of proof at trial through evidence that is common to the class rather than individual to its members.” Sullivan v. DB Investments, Inc., 667 F.3d 273, 306 (3d Cir. 2011). Among other things, Plaintiff’s claims do not necessarily require justifiable reliance. See In re Anthem, 162 F. Supp. 3d at 996 (Plaintiff need only allege raise “a reasonable inference of causation”); Allen, 249 F.R.D. at 193 (“[H]ere the proposed Class includes only those persons who purchased health club memberships and who paid in excess of the alleged “reasonable” amount. By definition, the proposed class excludes persons who did not pay an allegedly excessive initiation fee and thus did not suffer an ascertainable loss.”). Thus, Third Circuit case law and Plaintiff’s allegations establish a clear path to class certification in this action, and the Court should reject Defendant’s attempt to torpedo Plaintiff’s Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 31 of 33 25 class allegations at this early stage of the litigation without providing Plaintiff a fair a chance to gather discovery, and without providing conclusive—or even convincing—legal support. G. Should the Court Grant Defendant’s Motion, Plaintiff Should Be Granted Leave to Amend the Complaint To the extent the Court finds that any of Plaintiff's allegations are insufficient, Plaintiff respectfully requests the opportunity to amend her Complaint under Rule 15(a)(2). See Schomburg v. Dow Jones & Co., Fed. Appx. 100, 103 (3d Cir. 2012) (Rule 15 is read broadly, and district courts “should freely give leave [to amend] when justice so requires.”). V. CONCLUSION For the reasons discussed above, the Court should deny Defendant’s motion. Date: January 4, 2016 SQUITIERI & FEARON, LLP By: Stephen J. Fearon, Jr, 32 East 57 th Street 12th Floor New York, New York 10022 Tel: (212) 421-6492 Fax: (212) 421-6553 Email: stephen@sfclasslaw.com LAW OFFICE OF ALFRED G. YATES, JR. P.C. Alfred G. Yates, Jr. (PA17419) Gerald L. Rutledge (PA62027) 429 Forbes Avenue, 519 Allegheny Building Pittsburgh, Pennsylvania 15129 Tel: (412) 391-5164 Fax: (412 471-1033 Email: yateslaw@aol.com Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 32 of 33 26 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of BRIEF IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS was served upon all counsel of record via the Court’s CM/ECF Service this 4th day of January, 2017. /s/ Stephen J. Fearon, Jr. Case 2:16-cv-01348-CB-RCM Document 31 Filed 01/04/17 Page 33 of 33