State v. Fournier Industrie Et Sante & Labs. Fournier, S.A., Abbott Labs., Abbvie, Inc.
State v. Fournier Industrie Et Sante & Labs. Fournier, S.A., Abbott Labs., Abbvie, Inc.
Opinion of the Court
Abbott Laboratories and AbbVie Inc. appeal the judgment of the Nineteenth Judicial District Court overruling their peremptory exceptions of no right of action and no cause of action. Abbott Laboratories and AbbVie Inc. have also filed a supervisory writ application seeking review of the same judgment.
FACTS AND PROCEDURAL HISTORY
On March 4, 2015, the State of Louisiana, by and through its Attorney General James D. "Buddy" Caldwell
On May 8, 2015, AbbVie, Inc. and Abbott Laboratories (collectively "AbbVie") filed exceptions raising objections of prescription and peremption, no right of action, and no cause of action. On August 11, 2015, the trial court sustained AbbVie's objections of prescription and peremption and dismissed the State's claims for relief. In doing so, the trial court did not take up AbbVie's exceptions of no right of action or no cause of action, but held both exceptions in abeyance pending further proceedings.
The state subsequently appealed the trial court's judgment on AbbVie's exceptions. On December 22, 2016, this court found that the trial court erred in sustaining AbbVie's exception of prescription and peremption. State by and Through Caldwell v. Fournier Industrie et Sante and Laboratories Fournier, S.A., 2015-1353 (La. App. 1 Cir. 12/22/16),
Following this court's ruling, the trial court considered AbbVie's objections of no right of action and no cause of action. In a supplemental brief, AbbVie argued that the only party vested with a right of action to recover for damages to Medicaid was the Louisiana Department of Health ("LDH"), meaning the Attorney General acting on behalf of the State did not have a right to recover Medicaid damages through litigation.
On July 17, 2017, the trial court held a hearing on these objections. On July 31, 2017, the trial court overruled AbbVie's objections of no right of action and no cause of action. AbbVie subsequently filed this appeal and a writ application, raising the same arguments as the appeal.
ASSIGNMENTS OF ERROR
Appellants assign the following as error:
(1) The trial court erred when it overruled Defendants-Appellants' exception of no right of action as to all of the Petition's claims, because the real party in interest to assert the claims in the Petition is not the State of Louisiana, but rather the Louisiana Department of Health.
(2) The trial court erred when it denied Defendants-Appellants' exception of no cause of action as to the Petition's Monopolies Act claim, because the Monopolies Act does not reach the conduct alleged in the Petition.
(3) The trial court erred when it denied Defendants-Appellants' exceptions of no right or cause of action as to the Petition's unjust enrichment claim, because the Louisiana Department of Health is the only party in interest with the right of action to recover damages to Louisiana Medicaid on an unjust enrichment theory, and because an action for unjust enrichment cannot lie where express laws exist that address the complained-of conduct.
(4) The trial court erred when it overruled Defendants-Appellants' exception of no cause of action as to all of the Petition's claims, because Louisiana law does not provide a cause of action for indirect purchasers of a product.
STANDARD OF REVIEW
The standard of review of a ruling on an exception of no right of action, which presents a question of law, is de novo. LeCompte v. Continental Casualty Co., 2016-1359 (La. App. 1 Cir. 7/12/17),
DISCUSSION
We first address a pending rule to show cause regarding whether this court has appellate jurisdiction over this appeal and an existing writ application.
Rule to Show Cause and Writ Application
This court, ex proprio motu, issued a rule to show cause on November 8, 2017, on the basis that the judgment appeared to be a non-appealable ruling. On December 28, 2017, a panel of this court referred the order to the appeal panel. Subsequently, *300the State argued in a show cause brief that the trial court's judgment overruling AbbVie's exceptions of no right of action and no cause of action was not appealable because it was an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment. La. Code Civ. P. art. 1841. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. Code Civ. P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. Code Civ. P. art. 2083.
The overruling of a peremptory exception of no right of action is an interlocutory judgment. Bennett v. Arkansas Blue Cross Blue Shield, 2005-1714 (La. App. 1 Cir. 9/15/06),
Although interlocutory judgments are generally not appealable, La. R.S. 51:134 and 51:135 provide for an immediate appeal of interlocutory judgments related to antitrust claims. HPC Biologicals, Inc. v.UnitedHealthcare of Louisiana, Inc., 2016-0585 (La. App. 1 Cir. 5/26/16),
Louisiana Revised Statutes 51:135 states:
All interlocutory judgments in the cases affected by this Part, and not otherwise provided for, shall be appealable within five days and shall be heard and determined within twenty days after appeal is lodged, and any interlocutory judgments not appealed, except those rendered during the progress of the trial, shall be final, and shall not be reopened on final appeal. Such appeals shall be on the original papers, on the order of the district judge, if a transcript cannot be prepared in time.
Because the State asserts claims under the Louisiana Monopolies Act, which is contained in La. R.S. 51:121, et seq. , La. R.S. 51:135 is applicable. This court's jurisprudence has consistently stated that La. R.S. 51:134 and 51:135 provide for an immediate appeal of such an interlocutory judgment related to antitrust claims. See HPC Biologicals, Inc.,
As previously stated, AbbVie filed both an appeal and a writ application after the trial court's overruling of its objections. While there is no specific statutory provision providing for an immediate appeal *301of an interlocutory judgment related to LUTPA claims, some courts have addressed LUTPA claims along with antitrust claims on appeals authorized by R.S. 51:134 and 51:135. See Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 2003-0960 (La. App. 4 Cir. 11/26/03),
Assignment of Error # 1
In its first assignment of error, AbbVie argues that the trial court erred in overruling AbbVie's exception of no right of action as to all of the petition's claims, because the real party in interest to assert the claims is LDH, not the State. As such, AbbVie argues that LDH is the only party that can seek reimbursement of the Medicaid funds at issue.
The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. Code Civ. P. art. 927(A)(6) ; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06),
This court addressed the issue of whether the State has a right of action under LUTPA in State, by and through Caldwell v. Astra Zeneca AB, 2016-1073 (La. App. 1 Cir. 4/11/18),
In Astra Zeneca AB , this court noted that "LUTPA, by its terms, gives the State a cause of action, as well as a right of action[.]" Astra Zeneca AB, at 47-48,
In 2006, several amendments were made to LUTPA, including provisions allowing for civil penalties and restitution against any person found to have committed a LUTPA violation. La. R.S. 51:1407(B)-(E) and La. R.S. 51:1408(A)(5). There are no provisions which expressly state that any of the 2006 amendments are retroactive. See La. R.S. 1:2. However, the retroactivity of the 2006 amendment was specifically addressed by the Louisiana Supreme Court in State v. Foret , 2015-1298 (La. 1/27/16),
Herein, the State's petition alleges various acts of misconduct, all occurring between 2000 and 2005. Because we cannot retroactively apply the 2006 amendment to alleged violations occurring prior to the effective date of that amendment, we find that the State cannot state a cause of action for civil penalties or restitution under LUTPA. In deciding this issue, we do not address whether the State could seek civil penalties or restitution without having sought injunctive relief pursuant to La. R.S. 1407(A).
Assignment of Error # 2
In its second assignment of error, AbbVie argues that the trial court erred in denying its exception of no cause of action as to the Monopolies Act claim because the alleged acts did not occur in Louisiana or have the purpose of affecting trade in Louisiana. An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition and is triable on the face of the petition. Badeaux,
The State cannot state a cause of action for violations of the Louisiana Monopolies Act based on the operative facts (i.e. AbbVie's activities) that occurred outside of the geographic boundaries of Louisiana. The Louisiana Monopolies Act defines commerce as "trade or commerce within the geographic boundaries of this state." La. R.S. 51:121 (emphasis added). Further, the Louisiana Monopolies Act states that "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal." La. R.S. 51:122(A) (emphasis added). The alleged illegal acts in the State's petition include patent infringement actions filed in Illinois and Delaware. Although the State alleges that AbbVie's acts affected commerce within Louisiana and that AbbVie sold TriCor within Louisiana, the alleged wrongful acts occurred outside of the geographic boundaries of Louisiana. Accordingly, the State failed to state a cause of action under the Louisiana Monopolies Act.
Assignment of Error # 3
In its third assignment of error, AbbVie argues that the trial court erred in denying its exceptions of no right and no cause of action as to the State's unjust enrichment claim. In its petition, the State alleges that AbbVie's acts resulted in financial benefit, i.e. profits resulting from unlawful overcharges and monopoly profits. The State argues that it is inequitable to allow AbbVie to retain those overcharges and profits and that AbbVie should be compelled to repay those profits.
The root principle of unjust enrichment is that the plaintiff suffers an economic detriment for which he should not be responsible, while the defendant receives an economic benefit for which he has not paid. Coastal Environmental Specialists, Inc. v. Chem-Lig Intern., Inc., 2000-1936 (La. App. 1 Cir. 11/9/01),
Assignment of Error # 4
In its fourth assignment of error, AbbVie argues that the trial court erred in overruling AbbVie's exception of no cause of action as to the State's Louisiana Monopolies Act claim, because Louisiana law does not provide a cause of action to indirect purchasers of a product. AbbVie bases this argument on Illinois Brick Co. v. Illinois,
The Louisiana Monopolies Act states that "[n]o person shall monopolize, or attempt to monopolize, or combine, or conspire with any person to monopolize any part of the trade or commerce within this state." La. R.S. 51:123. In Illinois Brick Co. v. Illinois,
AbbVie's argument regarding indirect purchasers is identical to AstraZeneca's argument in Astra Zeneca AB . This court previously discussed this argument, stating:
AstraZeneca further contends that even if the State has a right of action, it cannot maintain a cause of action as an indirect purchaser of the prescription drug at issue. Although AstraZeneca couches this argument in terms of "no cause," the argument in essence is one of no right. In other words, AstraZeneca asserts that because the State is an indirect purchaser, it has no right to assert claims under LUTPA or the Monopolies Act.
[...]
Regardless of whether the State is an indirect purchaser ... the State itself has a right of action under LUTPA, including a specific right of action to seek civil penalties and restitution. On this limited record based solely on the exceptions, we make no determination of whether Louisiana would follow Illinois Brick with regard to the indirect purchaser rule, as we need not decide this issue to determine whether the State has any right of action.
Astra Zeneca AB, at 47-48,
Like AstraZeneca's argument in Astra Zeneca AB , AbbVie's argument that indirect purchasers lack standing to assert claims and pursue damages for alleged antitrust violations is an argument of no right of action. However, because we find that the State fails to state a cause of action under both LUTPA and the Monopolies Act, and we find the State does not have a cause of action as to its unjust enrichment claim, we need not determine whether Louisiana would follow Illinois Brick . We must dismiss the State's petition for failure to state a cause of action. Therefore, we pretermit any discussion as to whether the State has a right of action.
DECREE
For the above and foregoing reasons, we deny Abbott Laboratories and AbbVie Inc.'s writ application. We reverse the judgment of the Nineteenth Judicial District Court overruling Abbott Laboratories and AbbVie Inc.'s peremptory exceptions of no cause of action as to the State's Louisiana Unfair Trade Practices Act claim, its Louisiana Monopolies Act claim, and its unjust enrichment claim. We render judgment dismissing the State's petition for failure to state a cause of action. Costs of this appeal in the amount of $4,020.00 are assessed to Appellee, the State of Louisiana, by and through its Attorney General James D. "Buddy" Caldwell.
*305WRIT DENIED; REVERSED AND RENDERED.
Given that the State fails to state a cause of action under the Louisiana Monopolies Act, I concur. The State has not alleged any violations occurring in intrastate commerce. Rather, all alleged antitrust acts occurred outside of the State of Louisiana even though the acts allegedly affected Louisiana interests. The policy decision of whether to expand Louisiana's antitrust law is reserved to our legislature.
I note that Louisiana's Monopolies Act utilizes language similar to Alabama's Monopolies Act. In reviewing its act, the Alabama Supreme Court stated: "Thus, [Alabama's antitrust statutes] regulate monopolistic activities that occur 'within this state'-within the geographic boundaries of this state-even if such activities fall within the scope of the Commerce Clause of the Constitution of the United States. We leave to the Legislature the policy decision of whether to expand the reach of Alabama's antitrust statutes to activities that cross state boundaries." Abbott Laboratories v. Durrett,
I recognize that some other states have amended their antitrust laws to also apply to interstate commerce in circumstances when antitrust acts occur solely outside of the state, but substantially affect the people of a state. See Olstad v. Microsoft Corp.,
Because the Louisiana Legislature has not broadened the scope of Louisiana's antitrust laws, I concur with the result reached.
The supervisory writ application filed by Abbott Laboratories and AbbVie Inc. was referred to this panel. See State of Louisiana by and through its Attorney General, James Caldwell v. Fournier Industrie et Sante and Laboratories S.A., Abbott Laboratories, AbbVie, Inc., 2017-1218 (La. App. 1 Cir. 12/28/17),
On January 11, 2016, James D. "Buddy" Caldwell was succeeded in office as the Attorney General of Louisiana by Jeffrey "Jeff" Landry.
Tricor is a drug used to treat high cholesterol and high triglyceride levels. The generic equivalent of Tricor is fenofibrate.
The Louisiana Department of Health was formerly known as the Department of Health and Hospitals.
An appeal may be taken as a matter of right from an interlocutory order or judgment relating to an antitrust claim. See La. R.S. 51:134 and 51:135. Furthermore, in the case of a restricted appeal, such as this, an appellant may also challenge interlocutory rulings involving the same or related issues. Roba, Inc. v. Courtney, 2009-0509 (La. App. 1 Cir. 8/10/10),
For a detailed discussion of the history of federal antitrust law and its interplay with state antitrust law see Olstad. The Olstad court also recognized that while states can regulate interstate commerce in some circumstances, "[s]tate law is precluded from regulating interstate commerce only if it 'unduly burden[s]' interstate commerce."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.