Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Health Corp.
Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Health Corp.
Opinion of the Court
OPINION AND ORDER
Before the Court are Defendant’s Motion to Dismiss (ECF No. 13) and Motion to Certify Question to the Indiana Supreme Court (ECF No. 24). Plaintiffs filed Oppositions to both motions (ECF Nos. 20 and 28) and Defendant filed Replies (ECF Nos. 22 and 31). For the reasons that follow, Defendant’s Motions are DENIED.
I. Background
Plaintiffs are suing CVS Health Corporation (“CVS”), on behalf of themselves and a nationwide putative class of entities providing prescription drug insurance (“Third-Party Payors” or “TPPs”), alleging that CVS perpetrated an eight-year fraud by reporting an inflated Usual and Customary (“U & C”) price for generic drugs, rather than the significantly cheaper price associated with CVS’s Health Savings Pass (“HSP”) program.
In 2006, “big-box” retailers with pharmacy departments, such as Wal-Mart and Target, began offering hundreds of generic
CVS is required to “report[] to Third-Party Payors CVS’s [U & C] price for the drug being dispensed. The U & C price is generally defined as the cash price to the general public, which is the amount charged cash customers for the prescription, exclusive of sales tax or other amounts claimed.” (Id. ¶ 16.) Plaintiffs claim that because “CVS offers the HSP price as the cash price to the general public and the HSP price is the most common price paid by CVS’s cash-paying customers[,] [t]he HSP price is CVS’s U & C price.” (Id. ¶ 30.) However, instead of reporting the HSP price, “CVS has reported U & C prices for generic prescription drugs that are up to eleven (11) times the U & C prices reported by some of its most significant competitors and its own HSP prices.” (Id. ¶38.) In contrast, the “big-box” retailers “report the discounted price as the U & C price.” (Id. ¶ 37.) According to Plaintiffs, CVS’s “fraudulent scheme” has resulted in CVS “overcharg[ing] hundreds or thousands of TPPs (including Plaintiffs and others similarly situated) which paid for some of the most commonly prescribed generic drugs from CVS Pharmacies around the country.” (Id. ¶ 41.)
II. Discussion
CVS argues that: (1) the Complaint does not satisfy the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure; (2) Plaintiffs have failed to state a claim under Indiana’s Deceptive Consumer Sales Act (“IDCSA”), or in the alternative, the question of whether TPPs are “consumers” under the IDCSA should be certified to the Indiana Supreme Court; (3) named Plaintiffs, who are Indiana TPPs, do not have standing to assert state law claims on behalf of putative class members, and Plaintiffs have not properly pled the elements of the state consumer protection statutes they attempt to invoke; and (4) Plaintiffs’ negligent misrepresentation and unjust enrichment claims fail because they are contract claims masquerading as tort claims. The Court will discuss each of these arguments in turn.
A. Rule 9(b) of the Federal Rules of Civil Procedure
Rule 9(b) of the Federal Rules of Civil Procedure requires that a pleading alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The Complaint “must ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” Suna v. Bailey Corp., 107 F.3d 64, 68 (1st Cir. 1997) (quoting Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1127-28 (2d Cir. 1994)). In other words, Rule 9(b) requires plaintiffs to allege the “ hvho, what, when, where, and how' of the alleged fraud.” United States ex rel. Ge v. Takeda Pharm. Co. Ltd., 737 F.3d 116, 123 (1st Cir. 2013) (quoting United States ex. rel Walsh v. Eastman Kodak Co., 98 F.Supp.2d 141, 147 (D. Mass. 2000)).
Here, CVS argues that “the Complaint does not allege that CVS (or anyone) ever communicated an alleged false statement, a U & C price, to the Indiana Funds,” which “is the most basic requirement of Rule 9(b).” (Def.’s Mot. to Dismiss 8, ECF No. 13 (emphasis in original).) Moreover, Plaintiffs supposedly
*231 do not allege their plan beneficiaries actually purchased overpriced prescriptions from CVS pharmacies; or when, where, and how frequently any such (un-alleged) purchases took place; or what U & C prices CVS supposedly reported during those purchases; or what amount the Indiana Funds purportedly overpaid for the purchases; or any details describing when or how CVS obtained such overpayments.
(Id. (emphases in original).)
Plaintiffs cite a recent decision in Corcoran v. CVS Health Corporation & CVS Pharmacy Inc., 169 F.Supp.3d 970, 986 (N.D. Cal. 2016), in which the court denied a motion to dismiss in a similar case. They argue that, like the plaintiffs in Corcoran, they have satisfied the “who, what, where, and when” required by Rule 9(b).
The Court finds that Plaintiffs’ Complaint satisfies Rule 9(b). It is clear from the Complaint that the alleged false statement to the Indiana Funds was the reported U & C price, which Plaintiffs claim was inflated. (See Compl. ¶¶ 16-30, ECF No. 1.) While it is true that Plaintiffs do not provide certain details — such as the specific amount of drugs purchased — that level of specificity is not required. A complaint need not “allege specific shipments to specific customers at specific times with a specific dollar amount of improperly recognized revenue.” Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). As long as “the complaint ‘identifies the circumstances of the alleged fraud so that defendants can prepare an adequate answer,’ ” it is sufficient under Rule 9(b). IcL (quoting Warshaw v. Xoma Corp., 74 F.3d 955, 960 (9th Cir. 1996)); see also W. Reserve Life Assur. Co. of Ohio v. Conreal LLC, 715 F.Supp.2d 270, 283 (D.R.I. 2010) (stating that allegations are sufficient if they “serve the goals of Rule 9(b) to ‘provide a defendant with fair notice’ of the claim and discourage baseless actions” (quoting Suna, 107 F.3d at 68)). Here, Plaintiffs’ allegations are clear:
[T]he fraud occurred each time CVS electronically submitted a claim to TPPs using the [National Council for Prescription Drug Program (“NCPDP”) ] reporting system wherein it misrepresented the price for a prescription generic drug to be the U & C price when, in fact, CVS cash-paying customers were charged substantially lower prices for the same drug.
(Pls.’ Opp’n to Mot. to Dismiss 11, ECF No. 20-1.) The Complaint adequately puts CVS on notice of the details of the alleged fraud. This is particularly true given that “all of the missing details are likely in the possession of CVS.” Corcoran, 169 F.Supp.3d at 986.
B. Plaintiffs’ Claims under the IDCSA
1. Definition of “Consumer” under the IDCSA
One of the purposes of the IDCSA is to “protect consumers from suppliers who commit deceptive and unconscionable sales acts.” Ind. Code § 24-5-0.5-1(b)(2). The statute prohibits deceptive acts “in connection with a consumer transaction,” which is defined as a “sale ... to a person for purposes that are primarily personal, familial, charitable, agricultural, or household, or a solicitation to supply any of these things.” Id. §§ 24-5-0.5-2(a)(1), 24-
Although the IDCSA defines “consumer transaction,” it does not define “consumer,” which leaves some ambiguity as to what is meant by “as a consumer.” CVS argues that because consumer is not defined, it must be given its “plain meaning,” which is “someone who ‘uses’ or ‘utilizes’ a purchased item.” (Def.’s Mot. to Dismiss 16, EOF No. 13.) CVS also points out that Indiana law has codified CVS’s proposed definition in other areas, such as products liability law. (Id. (citing Ind. Code § 34-6-2-29(2) (defining “[cjonsumer” as “any individual who uses or consumes the product”)).)
There does not appear to be any Indiana case law addressing this issue, but two federal courts have found TPPs to be “consumers” under the IDCSA. See In re Actiq Sales & Mktg. Practices Litig., 790 F.Supp.2d 313, 325-26 (E.D. Pa. 2011); In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., 495 F.Supp.2d 1027, 1036-37 (N.D. Cal. 2007). In Bextra, the court noted that the IDCSA had been changed to define “consumer transaction” as “a sale ... to a person” as opposed to “an individual.” 495 F.Supp.2d at 1037 (emphasis added). As noted above, the definition of “person” includes a “corporation ... or other legal entity.” Id. at 1036-37 (quoting Ind. Code § 24-5-0.5-2(2)). Therefore, the court reasoned, “a sale to a corporation ‘for purposes that are primarily personal’ qualifies as a consumer transaction within the meaning of the statute,” even if it was not for the corporation’s own use. Id. at 1037. The court then determined that “defendants have not demonstrated that their sale of Celebrex and Bextra to the TPPs for the patients’ personal use does not qualify as a consumer transaction as a matter of law.” Id. Relying on Bextra, the court in Actiq likewise found that a TPP could be a consumer under the IDCSA:
[The IDCSA] requires only that the plaintiffs damages arise from defendant’s provision of such goods. Plainly stated, there is no mandate under the IDCSA that the plaintiff must be the consumer who purchased the goods primarily for personal purposes. Plaintiff is a valid consumer for purposes of the IDCSA, as its use of Actiq, through its payment for prescriptions of its members and beneficiaries, fits squarely within the ordinary meaning of the term “consume.” Plaintiffs payments for the drug arose from the sales of Actiq to its members and beneficiaries for the treatment of illnesses, with such transactions qualifying as consumer transactions for personal purposes under the IDCSA.
Actiq, 790 F.Supp.2d at 326.
CVS points to decisions from other jurisdictions that have held that TPPs were not consumers under those states’ consumer protection laws. See, e.g., In re Schering-Plough Corp. Intron/Temodar Consumer Class Action, No. 2:06-CV-5774,
The Court finds that TPPs can qualify as consumers under the IDCSA. First, if the intent of'the statute was to bar anyone from bringing a claim who did not actually use the product themselves, that could have easily been made clear. Indeed, as CVS notes, “consumer” is defined that way in Indiana statutes concerning products liability;
CVS argues in the alternative that the Court should certify the question regarding the definition of “consumer” under the IDCSA to the Indiana Supreme Court. Rule 64(A) of the Indiana Rules of Appellate Procedure provides, in relevant part, that “any federal district court may certify a question of Indiana law to the Supreme Court when it appears to the federal court that a proceeding presents an issue of state law that is determinative of the case and on which there is no clear controlling Indiana precedent.” The decision to certify a state-law question “rests in the sound discretion of the federal court.” Lehman
Despite the lack of guidance from Indiana courts on this issue, the Court finds that it is not a good candidate for certification. The Court is not inclined to delay this complex case with the hope that one part of it could be resolved with certification. Moreover, the two other federal district courts to confront this issue have both interpreted the statute the same way that this Court has, without seeking to certify a question.
2. Transactions that Occurred Prior to July 1, 2014
CVS alternatively argues that Plaintiffs’ claims under the IDCSA prior to July 1, 2014 should be dismissed. The version of the IDCSA prior to July 1, 2014 enumerated the types of conduct that could be considered a “deceptive act.” See Lawson v. Hale, 902 N.E.2d 267, 273-74 (Ind. Ct. App. 2009). The version that has been in effect since July 1, 2014 has a new catch-all fraud category. CVS argues that its alleged conduct does not fit into any of the pre-2014 enumerated categories. Plaintiffs disagree, stating that the following category applies: “That a specific price advantage exists as to such subject of a consumer transaction, if it does not and if the supplier knows or should reasonably know that it does not.” (Pls.’ Opp’n to Mot. to Dismiss 23, ECF No. 20-1 (quoting Ind. Code § 24-5-0.5-3(b)(6)); see also id. (“That is exactly what Plaintiffs allege here — TPPs were guaranteed to pay no more than them contracted price or the U & C price, which CVS then manipulated to ensure that no price advantage existed.” (emphasis in original)).)
The Court agrees with Plaintiffs that CVS’s alleged conduct could fall under the “specific price advantage” category. CVS cites one case from Ohio interpreting a more specific “price advantage” provision in Ohio’s Consumer Sales Practice Act, see Martin v. Lamrite West, Inc., 41 N.E.3d 850, 852-53 (Ohio Ct. App. 2016), but can point to no authority in Indiana indicating that the conduct alleged here would not constitute a deceptive act concerning a “specific price advantage.”
The next question is whether Plaintiffs adequately pled violations of the pre-July 2014 IDCSA. CVS argues that Plaintiffs are improperly attempting to amend their Complaint through their opposition. CVS is correct that Plaintiffs’ Complaint never specifically mentions the “price advantage” issue; .however, they do say generally that “[t]he acts, practices, misrepresentations and omissions by Defendant described above, and Defendant’s dissemination of deceptive and misleading U & C prices, occurring in the course of conduct involving trade or commerce, constitute unfair methods of competition and unfair or deceptive acts or practices within the meaning of each of the above-enumerated [consumer protection] statutes.” (Compl. ¶ 64, ECF No. 1.) While ideally the Complaint would have been more specific, the Court finds that the “price advantage” issue is sufficiently covered by Plaintiffs’ allegation about “deceptive and misleading U & C prices” to put CVS on notice, and does not warrant dismissal.
C. Plaintiffs’ Claims under State Laws Other than Indiana
1. Plaintiffs’ Standing to Bring Non-Indiana State Law Claims on Behalf of Class Members from Other States
Plaintiffs’ Complaint pleads violations of 37 different state consumer protection laws on behalf of putative class members. However, because the named Plaintiffs are both Indiana TPPs, CVS argues they do not have standing to bring claims based on other states’ consumer protection laws.
In Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset Acceptance Corp., the First Circuit dismissed defendants against whom absent class members, but not the named plaintiffs, had alleged claims. 632 F.3d 762, 770-71 (1st Cir. 2011). However, the Court acknowledged Ortiz and clarified that the holding of Plumbers’ Union was with one “qualification”:
The qualification, on which we reserve judgment, is one where the claims of the named plaintiffs necessarily give them— not just their lawyers — essentially the same incentive to litigate the counterpart claims of the class members because the establishment of the named plaintiffs’ claims necessarily establishes those of other class members.
Id. at 770. Several district courts have used this rationale to defer ruling on standing issues until the Rule 23 analysis in antitrust suits. See, e.g., Solodyn, 2015 WL 5458570, at *14 (deferring consideration of standing where “[a]ll members of the putative class have a common interest in litigating claims arising from the Defendants’ [conduct]” (citation omitted)); In re Nexium (Esomeprazole) Antitrust Litig., 968 F.Supp.2d 367, 407 (D. Mass. 2013) (“This Court holds that the requisite ‘identity of issues’ and ‘alignment of incentives’ is present amongst the End-Payors here. All members of the putative class have a common interest in litigating claims arising from the Defendants’ allegedly anti-competitive collusion designed to cause the End-Payors to pay supracompetitive prices across the several states.”); see also In re Relafen Antitrust Litig., 221 F.R.D. 260, 269 (D. Mass. 2004) (certifying class that did not have named plaintiffs from each state because “[t]he more traditional inquiry, which ... would require class counsel to identify representatives from each state involved in a multistate class action, would render class actions considerably more cumbersome to initiate, and in turn, less effective in overcoming a lack of incentives to prosecute individual rights and in ‘achieving] economies of time, effort, and expense.’ ” (quoting Amchem, 521 U.S. at 615, 117 S.Ct. 2231)).
However, courts in other jurisdictions have noted that “deferring [the] standing determination would ‘allow named plaintiffs in a proposed class action, with no injuries in relation to the laws of certain states referenced in their complaint, to embark on lengthy class discovery with respect to injuries in potentially every state in the Union.’ ” In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 758 n.20 (E.D. Pa. 2014) (citation omitted) (collecting cases). CVS cites a number of cases where courts have dismissed claims be
Although there is authority going both ways on this issue, the trend in the First Circuit seems to be deferring the standing analysis to the class certification stage, so long as the named plaintiffs have “essentially the same incentive to litigate the counterpart claims of the class members because the establishment of the named plaintiffs’ claims necessarily establishes those of other class members.” Plumbers’ Union, 632 F.3d at 770. Here, the scheme alleged by Plaintiffs — that CVS has been fraudulently reporting its U & C price to TPPs — is the same across the country. Plaintiffs have a collective interest in litigating their claims together to attempt to recover and have CVS change its system going forward. Moreover, “this is not a case where the Named Plaintiffs are attempting ‘to piggyback on the injuries of the unnamed class members.’ Rather, each of the Named Plaintiffs asserts a personal injury resulting from Defendants’ allegedly [fraudulent conduct].” In re Grand Theft Auto Video Game Consumer Litig. (No. II), No. 06-MD-1739(SWK)(MHD), 2006 WL 3039993, at *3 (S.D.N.Y. Oct. 25, 2006) (internal citation omitted). Put another way, CVS is not challenging Plaintiffs’ standing to bring their own claims; it is challenging their standing to bring claims on behalf of the class. See id. (“The relevant question, therefore, is not whether the Named Plaintiffs have standing to sue Defendants — they most certainly do — but whether their injuries are sufficiently similar to those of the purported Class to justify the prosecution of a nationwide class action.”). This question would be appropriately, and more efficiently, addressed at the class certification stage. Accordingly, the Court denies without prejudice Defendant’s Motion to Dismiss with respect to Plaintiffs’ claims under state laws other than Indiana.
2. Failure to Separately Plead the Elements of Each State’s Consumer Protection Statute
Plaintiffs’ Complaint lists 37 state consumer protection statutes, followed by an allegation that “[t]he acts, practices, misrepresentations and omissions by Defendant described above, and Defendant’s dissemination of deceptive and misleading U & C prices, occurring in the course of conduct involving trade or commerce, constitute unfair methods of competition and unfair or deceptive acts or practices within the meaning of each of the above-enumerated statutes.” (Compl. ¶ 64, ECF No. 1.) CVS claims this is insufficient because Plaintiffs do not “attempt! ] to allege that CVS’s conduct violates those general statutory terms as interpreted by each state.” (Def.’s Mot. to Dismiss 14, ECF No. 13.) According to CVS, “[o]ther courts have
The other two cases cited by CVS, which were not class actions, involved bare-bones complaints. See Williams v. Davey Tree Expert Co., No. 8:10-MC-68-T-30TBM, 2010 WL 3490992, at *1 (M.D. Fla. Aug. 16, 2010) (“This recitation of a laundry list of causes of action not only fails to include the elements for each claim, but also fails to provide any factual detail so as to give Defendant fair notice of what the claims are and the grounds upon which each rests.”); Protegrity Corp. v. Paymetric, Inc., No. 3:13-CV-01549 (VLB), 2014 WL 3849972, at *3 (D. Conn. Aug. 5, 2014) (dismissing complaint that “does not even offer a ‘formulaic recitation of the elements of a cause of action’ ” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009))).
CVS is adequately on notice of the conduct Plaintiffs claim violates the various state consumer protection .statutes. At the class certification stage, Plaintiffs will need to delve into the specifics of each statute to prove that the class representatives, are sufficiently typical; for the moment, their pleading is sufficient.
3. Failure to State a Claim under Various States’ Consumer Protection Laws
CVS further argues: (1) that Plaintiffs “have no claim under the twenty-five statutes expressly requiring residence or injury within the relevant state,” (2) that “[ejleven statutes limit suits to consumers or natural persons, which the Indiana Funds are not,” and (3) that “[s]ix statutes bar class actions.” (Def.’s Mot. to Dismiss 20-23, ECF No. 13.)
D. Plaintiffs’ Negligent Misrepresentation and Unjust Enrichment Claims
1. Economic Loss Doctrine
The economic loss dpctrine preserves the line between tort and contract, providing that:
If tort claims are based on duties that are imposed by contract, then under the economic-loss rule, contract law provides the remedies for economic losses. The economic-loss doctrine forbids a party from suing or recovering in tort for economic or pecuniary losses that arise only from breach of contract or are associated with the contract relationship. In other words, tort damages are generally not recoverable unless the plaintiff suffers an injury that is independent and separate from the economic losses recoverable under a breach-of-contract claim.
CVS argues that Plaintiffs’ fraud and negligent misrepresentation claims are nothing more than disguised breach of contract claims, which should be dismissed under the economic loss doctrine. The Court rejects the very premise of Defendants’ argument. To support dismissal, Defendants contend the [Complaint] does not allege any wrongdoing independent of its contractual obligation to report an accurate U & C price to third-party payors. Not so. The gravamen of Plaintiffs’ allegations is that CVS created the HSP program to report misleading U & C prices in a manner that contravened industry standards with the intent to deceive Plaintiffs and class members. Plaintiffs additionally allege that CVS misrepresented the availability of the HSP program and their ability to participate therein. These allegations undoubtedly fall outside of CVS’s contractual obligations to third party pay-ors.
169 F.Supp.3d at 988 (emphasis added). CVS attempts to distinguish Corcoran because the plaintiffs there were end-payors; but this did not factor into the court’s analysis.
Plaintiffs also point out that their Complaint states that CVS is required to report an accurate U & C price by the NCPDP. CVS takes issue with the merits of this claim, arguing that the U & C field on the relevant NCPDP form is optional. This argument may end up being successful further down the line, but at this stage, the Court must take what the Plaintiffs pled at face value. (See Compl. ¶ 16, ECF No. 1 (“Pursuant to the NCPDP reporting standard, pharmacies are required to report the amount of its U & C price for each prescription transaction using NCPDP’s mandatory pricing segment code 426-DQ.”).)
The bottom line is that, based on the Complaint’s statement that CVS orchestrated a fraudulent scheme that violated industry standards, the economic loss doctrine does not bar their claims at this stage. It may well come out in discovery that the only basis for the claims is in contract, in which case this could be revisited at summary judgment.
2. Negligent Misrepresentation
The elements of a claim for negligent misrepresentation include (1) receipt of a misrepresentation made by a defendant and (2) justifiable reliance on the misrepresentation. See Restatement (Second) of Torts § 552 (1977); Eby v. York-Div., Borg-Warner, 455 N.E.2d 623, 628 (Ind. Ct. App. 1983) (following § 552). CVS argues that, even if the economic loss doctrine does not apply, Plaintiffs’ negligent misrepresentation claim fails because: (1) “The Complaint alleges that U & C prices were reported to ‘Third-Party Payors’ genetically; it does not allege that U & C prices were reported to the Indiana Funds specifically”; and (2) “the Indiana Funds have not plausibly pled that they justifiably relied on an ‘erroneous’ reported price.” (Def.’s Mot. to Dismiss 28-29, ECF No. 13.)
Regarding the first issue, the Complaint makes clear that CVS reported the U & C price to all TPPs, including the
Plaintiffs counter that knowing the HSP price was not enough to reveal the fraud because they were unaware of the percentage of cash-paying customers enrolled in the HSP program. Without that information, they could not determine whether the U & C price — the price that the majority of cash customers pay — was the HSP price or not.
The Court agrees with Plaintiffs — at least at this stage of the litigation. The crux of their argument is that the HSP price should have been reported as the U & C price, not because it was the lowest price CVS charged, but because it was the price most cash-paying customers paid. By contrast, Winkelman dealt with Medicare Part D and Medicaid, and at least in Connecticut, “regulations mandated that CVS provide Medicaid with ‘the lowest drug price’ that CVS was offering to consumers ....” Id. (emphasis added). It was clear from the publicity that the U & C price that CVS was charging Medicaid was not the lowest price. While CVS argues in its Reply that, because Plaintiffs are sophisticated parties, they should have inquired as to the percentage of customers enrolled in the HSP program, the Court finds that, at the motion to dismiss stage, Plaintiffs have sufficiently pled justifiable reliance.
3. Unjust Enrichment
Aside from the economic loss doctrine, CVS’s main argument as to Plaintiffs’ unjust enrichment claim is that it concerns the same conduct that CVS argues is not actionable under consumer protection statutes or the common law of negligent misrepresentation. Therefore, “[i]f the Court finds that Plaintiffs have not stated valid claims for consumer protection violations and negligent misrepresentation, the unjust enrichment claim must fail as well, since Plaintiffs provide no independent basis for finding that CVS acted ‘unjustly’ by reporting a U & C price that was not the HSP program price.” (Def.’s Mot. to Dismiss 31, ECF No. 13.) Because the Court finds that Plaintiffs have sufficiently alleged a fraudulent scheme, the unjust enrichment claim may also go forward.
III. Conclusion
For the foregoing reasons, CVS’s Motion to Dismiss and Motion to Certify
IT IS SO ORDERED.
. As this is a motion to dismiss, all well-pled facts alleged by Plaintiffs are taken to be true. See Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009).
. While CVS is correct that the plaintiffs in Corcoran v. CVS Health Corporation & CVS Pharmacy Inc., gave more detail on specific transactions, such as "the number of generic drugs purchased, a time frame in which such purchases were made, the state in which the purchases were made, and the total inflated amount they were charged as a result of inflated U & C prices,” 169 F.Supp.3d 970, 986 (N.D. Cal. 2016), nothing in Corcoran indicates that the amount of detail in this Complaint would have been insufficient.
. In Ae products liability context, it makes sense to limit causes of action to those who actually use Ae product, as they are Ae ones damaged by any defect.
. In response to these arguments, Plaintiffs have withdrawn their claims under the consumer protection statutes in New Jersey, Kansas, Ohio, and Texas. (See Pls.’ Opp’n to Mot. to Dismiss 27-28, ECF No. 20-1.)
Reference
- Full Case Name
- SHEET METAL WORKERS LOCAL NO. 20 WELFARE AND BENEFIT FUND and Indiana Carpenters Welfare Fund, on behalf of themselves and all others similarly situated v. CVS HEALTH CORPORATION
- Cited By
- 9 cases
- Status
- Published