In re Vascepa Antitrust Litig. Indirect Purchaser

• Decision Date: 23 February 2023
• Docket Number: Civil Action 21-12061 (ZNQ) (TJB)
• Parties: IN RE VASCEPA ANTITRUST LITIGATION INDIRECT PURCHASER PLAINTIFFS
• Court: U.S. District Court — District of New Jersey

IN RE VASCEPA ANTITRUST LITIGATION INDIRECT PURCHASER PLAINTIFFS

Civil Action No. 21-12061 (ZNQ) (TJB)

United States District Court, D. New Jersey

February 23, 2023

NOT FOR PUBLICATION

OPINION

ZAHID N. QURAISHI, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court upon a Motion to Dismiss filed by Defendants Amarin Pharma, Inc., Amarin Pharmaceuticals Ireland Limited, and Amarin Corporation plc (collectively, “Amarin”). (ECF No. 64.) The Motion is opposed by Plaintiffs Welfare Plan of The International Union of Operating Engineers Locals 137, 137A, 137B, 137C, 137R; Local 464A United Food and Commercial Workers Union Welfare Service Benefit Fund; Uniformed Fire Officers Association Family Protection Plan Local 854; Uniformed Fire Officers Association for Retired Fire Officers Family Protection Plan; Teamsters Health & Welfare Fund of Philadelphia and Vicinity; and Plaintiff Board of Trustees of the Heavy and General Laborers' Local Unions 472 and 172 of N.J. Welfare Fund, individually on behalf of themselves and as a class action on behalf of all others similarly situated (“Indirect Purchaser Plaintiffs” or “IPPs”). (“Opp.”, ECF No. 71.) Amarin filed a reply. (“Reply”, ECF No. 73.) On September 27, 2022, the Court held oral argument.

The Court has carefully considered the parties' submissions and the positions they presented at oral argument. For the reasons set forth below, the Court will GRANT IN PART and DENY IN PART the Motion to Dismiss.

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I. BACKGROUND AND PROCEDURAL HISTORY

The Court writes primarily for the parties. It therefore confines the summary of the facts to those relevant to the Motion.

As alleged in the Consolidated Complaint, Amarin markets a drug product containing “EPA,” a highly purified omega-3 fatty acid administered for the reduction of both triglycerides and cardiovascular risk. (Consolidated Complaint, hereinafter “CC” ¶¶ 70, 73, ECF No. 53.) Amarin's drug product has been marketed under the name “Vascepa” since 2012. (Id.) Various generic manufacturers sought FDA approval to sell a generic EPA product, and patent litigation ensued. (Id. ¶ 91-94, 96.) Following resolution of the litigation and the requisite regulatory approvals, at least two generic manufacturers-Hikma Pharmaceuticals (“Hikma”) and Doctor Reddy's Laboratories (“DRL”)-were in a position to launch a generic EPA product. (Id. ¶ 106.)

In the meantime, Amarin negotiated exclusive supply agreements with suppliers of EPA with an FDA-approvable manufacturing process and sufficient ready capacity to support a commercial launch. (Id. ¶ 111-118.) According to the Consolidated Complaint, Amarin made various public statements indicating that this was done to hamper generic entry. (Id. ¶ 116-119, 121.) Amarin's tactic succeeded because it impaired Hikma's ability to obtain enough EPA for a full generic launch. (Id. ¶ 141-144.) It also delayed DRL's generic launch by ten months. (Id. ¶ 145.) This prevented price competition for brand and generic Vascepa. (Id. ¶ 177.)

IPPs bring this suit on behalf of a nationwide class of “all persons or entities . . . who indirectly purchased, paid and/or provided reimbursement” for generic and/or brand Vascepa, beginning from August 7, 2020. (Id. ¶ 179.) The Consolidated Complaint asserts federal and state causes of action set forth in the table below.

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FEDERAL CLAIMS	STATE CLAIMS
Count 1: Violation of 15 U.S.C. § 1 by Conspiracy in Restraint of Trade	Count 4: Monopolization
Count 2: Violation of 15 U.S.C. § 2 by Unlawful Monopolization	Count 5: Conspiracy to Restrain Trade
Count 3: Declaratory and Injunctive Relief under Sherman Act § 2	Count 6: Violation of State Consumer Protection Laws
Count 7: Unjust Enrichment

II. LEGAL STANDARD

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). On a motion to dismiss for failure to state a claim, the “defendant bears the burden of showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).

District courts undertake a three-part analysis when considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)) (alteration in original). Second, the court must accept as true all of the plaintiff's well-pled factual allegations and “construe the complaint in the light most favorable to the plaintiff.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quotation omitted). In doing so, the court is free to ignore legal conclusions or factually unsupported accusations that merely state “the-defendant-unlawfully-harmed-me.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “[M]ere restatements of the elements of [a] claim[] . . . are not entitled to the assumption of truth.” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (alterations in original) (quotation omitted). Finally, the court must determine whether “the facts alleged in the

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complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.'” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679). On the whole, “[t]he defendant bears the burden of showing that no claim has been presented.” Hedges, 404 F.3d at 750 (citation omitted).

III. DISCUSSION

A. JURISDICTION

The Court has jurisdiction over this action pursuant to 15 U.S.C. §§ 1, 2, 15, and 26, as well as 28 U.S.C. §§ 1331, 1332 (a) and (d), and 1337.

B. FEDERAL CLAIMS: ANTITRUST

As Amarin's Moving Brief concedes, IPPs' federal antitrust claims stand or fall with the same federal antitrust claims brought by Dr. Reddy's Labs against Amarin in the related case 21-cv-10309. (Moving Br. at 4.) There, Amarin moved to dismiss the plaintiff's antitrust claims on the same bases they invoke here. (21-cv-10309, ECF No. 49.) The Court denied that portion of Amarin's motion in an oral decision issued on November 28, 2022. (ECF No. 95.) For the same reasons articulated in that decision, the Court will also deny the portion of Amarin's Motion in this case seeking to dismiss IPPs' federal antitrust claims.

C. STATE LAW CLAIMS

1. IPPs' Standing for State Law Claims in General: Amarin's Challenge is Premature

In its Motion, Amarin argues that IPPs lack standing to bring claims under the laws of jurisdictions in which the named plaintiffs do not reside and no injuries are alleged to have occurred. (Moving Br. at 26-29.) For their part, IPPs insist that they have Article III standing and that the Motion actually challenges whether Named Plaintiffs can represent absent class members-a question to be addressed in the Rule 23 class certification analysis, not on a motion to dismiss. (Opp. 22-26.)

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Generally, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury' as the class members.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)); see also Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 360 (3d Cir. 2013) (“It is axiomatic that the lead plaintiff must fit the class definition”). The Court acknowledges a diversity of opinion among the courts regarding whether, prior to class certification, named plaintiffs must demonstrate that they have standing to assert all claims in the class action complaint “or whether it is sufficient to establish standing for a single claim because a court will determine if the named plaintiffs have standing to represent the unnamed class members seeking redress under the balance of asserted claims during the class certification process[.]” McGuire v. BMW of N. Am., LLC, Civ. No. 13-7356, 2014 WL 2566132, at *5 (D.N.J. June 6, 2014) (quoting In Re Magnesium Oxide Antitrust Litig., Civ. No. 10-5943, 2011 WL 5008090, at *8 (D.N.J. Oct. 20, 2011)).

Here, IPPs bring claims for violations of state antitrust and consumer protection laws, as well as unjust enrichment on behalf of themselves and a nationwide class of:

[a]ll persons or entities in the United States and its territories who indirectly purchased, paid and/or provided reimbursement for some or all of the purchase price for generic and/or brand Vascepa from Amarin, Hikma, Dr. Reddy's Laboratories, or any other manufacturer of a generic version of Vascepa or any agents, predecessors, or successors thereof, for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries, other than for resale, during the period from August 7, 2020 through and until the anticompetitive effects of the defendants' unlawful conduct cease.

(CC ¶ 179.)

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A series of courts have concluded that “the fact that the named Plaintiffs may not have individual standing to allege violations of consumer protection laws in states other than those in which they [were injured] is immaterial” because “[t]he issue . . . is one of predominance[- ]whether questions of law or fact common to class members predominate over any questions affecting only individual members.” See, e.g., Ramirez v. STI Prepaid LLC, 644 F.Supp.2d 496, 505 (D.N.J. 2009) (citing Fed.R.Civ.P. 23 (b)(3)). This view is consistent with the Supreme Court's guidance that “[w]hile an Article III court ordinarily must be sure of its own jurisdiction before getting to the merits, a Rule 23 question should be treated first because class certification...