NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________

No. 19-1960 ____________

SUNRISE PHARMACEUTICAL, INC., Appellant v.

VISION PHARMA, LLC; SANDER S. BUSMAN

____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-17-cv-04074) District Judge: Honorable Claire C. Cecchi ____________

Argued on March 5, 2020

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges.

(Filed: April 3, 2020)

Nancy A. Del Pizzo (ARGUED) Gregory D. Miller Joshua D. Sibble Rivkin Radler 25 Main Street, Court Plaza North Suite 501 Hackensack, NJ 07601 Counsel for Appellant Sunrise Pharmaceutical, Inc. Henry A. Gabathuler (ARGUED) Cameron S. Reuber Leason Ellis 1 Barker Avenue Fifth Floor White Plains, NY 10601 Counsel for Appellees Vision Pharma, LLC and Sander S. Busman

____________

OPINION * ____________

HARDIMAN, Circuit Judge.

This appeal involves a longstanding battle between two companies: Sunrise

Pharmaceutical, Inc. and Vision Pharma, LLC. Initially, Vision sued Sunrise and issued a

press release about the lawsuit. Sunrise viewed the press release as “false and

defamatory,” so it sued Vision years later. App. 20. The District Court dismissed

Sunrise’s complaint, holding that the Noerr-Pennington doctrine barred Sunrise’s claims.

We will affirm the District Court’s order on the alternative ground that Sunrise failed to

plausibly plead a right to relief.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 I

In its lawsuit against Vision, Sunrise alleged unfair competition and false

advertising under the Lanham Act, unfair competition under state statutory and common

law, tortious interference with prospective economic relations, and trade libel. 1 Its

complaint deemed “false and defamatory” the following statements in Vision’s press

release:

44. . . . Vision Florida falsely states that Sunrise “defective[ly] manufacture[d] . . . certain drug products deemed adulterated and unsalable by the U.S. Food & Drug Administration.”

45. . . . Vision Florida falsely states that Sunrise “willful[ly]” sold “adulterated drugs to Vision Pharma.”

46. . . . Mr. Busman, who is listed as the “Founder, President & CEO” of “Vision Pharma,” also defames Sunrise, as he is quoted as stating that the false and defamatory statements [sic] resulted in “severe damage” to Vision Florida, and that the company filed a lawsuit based on those false and defamatory statements “for a well-deserved victory.”

App. 27–28.

Vision moved to dismiss Sunrise’s complaint, claiming that the statements in the

press release were true or, alternatively, the Noerr-Pennington doctrine barred Sunrise’s

claims. Under the Noerr-Pennington doctrine, “[t]hose who petition [the] government for

1 Sunrise also alleged unlawful monopolization and attempted monopolization in violation of the Sherman Act and the Clayton Act, and state statutory law, but did not appeal the District Court’s dismissal of those claims.

3 redress are generally immune from antitrust liability.” Prof. Real Estate Inv’rs, Inc. v.

Columbia Pictures Indus., Inc. (PRE),

(1993). Vision argued the doctrine

applies even to claims not arising under the antitrust laws and immunizes it from liability

for statements in the press release.

The District Court granted Vision’s motion. It ruled the Noerr-Pennington doctrine

immunizes Vision from liability for the statements in the press release unless Vision’s

lawsuit against Sunrise was objectively baseless. Finding Vision’s lawsuit was not baseless,

it held Noerr-Pennington barred Sunrise’s claims. Sunrise moved for reconsideration and

the Court denied the motion. Sunrise timely appealed.

II 2

We review de novo the District Court’s order dismissing Sunrise’s claims under

Rule 12(b)(6) of the Federal Rules of Civil Procedure. Phillips v. Cty. of Allegheny,

(3d Cir. 2008). “We may affirm the district court on any ground supported

by the record.” Tourscher v. McCullough,

(3d Cir. 1999) (citations

omitted).

We need not address the District Court’s Noerr-Pennington analysis because the

record demonstrates that Sunrise failed to plead a plausible cause of action. Sunrise says

2 The District Court had jurisdiction under

(a)(1). We have jurisdiction under

.

4 its claims “sound[] in defamation,” Sunrise Br. 10, yet it failed to plausibly plead that

Vision made a false statement. See, e.g., DeAngelis v. Hill,

(2004).

We first identify Sunrise’s averments that are merely legal conclusions not entitled

to the presumption of truth. See Ashcroft v. Iqbal,

(2009). These

include Sunrise’s allegations, in paragraphs 44–46 of its complaint, that certain

statements in the press release were “false and defamatory.” App. 27–28. Next, we ask

whether there are any well-pleaded factual allegations that plausibly give rise to an

entitlement to relief. See Iqbal,

. Sunrise’s complaint contains no such

facts. Notably, Sunrise did not plead facts suggesting its drugs were properly

manufactured or that the FDA erred in deeming its drugs adulterated and unsalable. Nor

did it plead facts suggesting that, if its drugs were adulterated, it did not sell them

willfully or Vision did not suffer severe damage.

In sum, Sunrise’s allegation that Vision made false statements is a “naked

assertion[] devoid of further factual enhancement,” Iqbal,

, insufficient to

survive a motion to dismiss. So we will affirm the District Court’s order dismissing

Sunrise’s complaint.

5