DMEAST #12118825 v1

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA 

Sheet Metal Workers Local 441 

Health & Welfare Plan, et al., 

 vs. 

GlaxoSmithKline, PLC, et al. 

(End-Payor Actions) 

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Civil Action No. 2:04-cv-5898 

DEFENDANTS’ MOTION TO DISMISS 

THE CONSOLIDATED SECOND 

AMENDED END-PAYOR CLASS 

ACTION COMPLAINT 

Judge Lawrence F. Stengel 

Defendants GlaxoSmithKline, plc and SmithKline Beecham Corporation d/b/a 

GlaxoSmithKline (collectively, “GSK”) hereby move, pursuant to Federal Rule of Civil 

Procedure 12(b)(6), for an Order dismissing the Consolidated Second Amended End-Payor Class 

Action Complaint filed against GSK. In support of its Motion, GSK incorporates herein the 

accompanying Memorandum of Law. 

Respectfully submitted, 

Dated: January 11, 2010 /s/ Arthur Makadon 

Arthur Makadon 

Edward D. Rogers 

Susanna R. Greenberg 

BALLARD SPAHR LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

(215) 665.8500 

David P. Gersch 

James W. Cooper 

Daniel S. Pariser 

ARNOLD & PORTER LLP 

555 12th Street, N.W. 

Washington, D.C. 20004 

(202) 942.5000 

Counsel for Defendants GlaxoSmithKline, 

PLC and SmithKline Beecham Corp., d/b/a 

GlaxoSmithKline 

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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA 

Sheet Metal Workers Local 441 

Health & Welfare Plan, et al., 

 vs. 

GlaxoSmithKline, PLC, et al. 

(End-Payor Actions) 

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Civil Action No. 2:04-cv-5898 

 

Judge Lawrence F. Stengel 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ 

MOTION TO DISMISS THE CONSOLIDATED 

SECOND AMENDED END-PAYOR CLASS ACTION COMPLAINT

David P. Gersch Arthur Makadon 

 James W. Cooper Edward D. Rogers 

 Daniel S. Pariser Susanna R. Greenberg 

ARNOLD & PORTER LLP BALLARD SPAHR LLP

 Washington, D.C. 20004 1735 Market Street, 51st Floor 

 (202) 942-5000 Philadelphia, PA 19103 

 (215) 665-8500 

COUNSEL FOR DEFENDANTS GLAXOSMITHKLINE, PLC and 

SMITHKLINE BEECHAM CORPORATION d/b/a GLAXOSMITHKLINE 

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TABLE OF CONTENTS

Page

I. INTRODUCTION............................................................................................................. 1 

II. BACKGROUND ............................................................................................................... 1 

A. The November 2 Order Dismissing A Majority of Claims in The EndPayor’s Amended Consolidated Complaint ....................................................... 1 

B. The SAC................................................................................................................. 3 

III. STANDARD OF REVIEW.............................................................................................. 4 

IV. ARGUMENT..................................................................................................................... 6 

A. The SAC Should Be Dismissed Because The Plans’ Claims Are 

Governed By Their Home State Laws, Which Do Not Permit 

Recovery................................................................................................................. 6 

1. The Interests of the Reimbursement States................................................. 7 

2. The Interests of The Home States............................................................... 8 

3. “Physical” Contacts with Relevant Jurisdictions........................................ 9 

B. Even If the Plans Can Invoke All State Claims in the SAC, All But 

One State Statutory Claim Fails on Individual State Law Grounds ............. 11 

1. Indirect Purchasers Cannot Bring Claims Under Four of the 

Antitrust and State Consumer Protection Statutes.................................... 12 

2. Welfare Benefit Plans, Such as Plaintiffs, Cannot Bring Claims 

Under Four Consumer Protection Statutes ............................................... 14 

3. Plaintiffs Fail to Plead the Intrastate Conduct or Effects That 

Fourteen State Laws Require.................................................................... 14 

4. Plaintiffs Do Not Allege the Type of Conduct Proscribed by 

Thirteen Consumer Protection Statutes .................................................... 15 

5. Allegations of Unilateral Monopolization Do Not State a Claim 

Under the Laws of Four Other States ....................................................... 17 

6. Plaintiffs Failed to Meet Mandatory Pre-Filing Notice 

Requirements of One State ....................................................................... 17 

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C. Plaintiffs’ Unjust Enrichment Claims Fail to State a Claim in All But 

One State.............................................................................................................. 19 

1. Unjust Enrichment Cannot Be Used To Circumvent A State’s 

Adoption of Illinois Brick ......................................................................... 19 

2. Plaintiffs Cannot Recover for Unjust Enrichment Under the Laws 

of States That Either Do Not Allow Equitable Remedies for 

Antitrust Violations or Do Not Allow These Plaintiffs to Recover.......... 19 

3. An Unjust Enrichment Plaintiff Must Confer A Direct Benefit on 

Defendant.................................................................................................. 21 

4. An Unjust Enrichment Plaintiff Must Not Be Too Remote from 

Defendant.................................................................................................. 21 

5. An Unjust Enrichment Plaintiff Must Exhaust Remedies Against 

The Party With Whom It Has Privity to Recover Benefit ........................ 22 

V. CONCLUSION ............................................................................................................... 23 

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TABLE OF AUTHORITIES

FEDERAL CASES 

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ......................................................................5, 16 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)............................................................4, 5 

Brunson Commc’ns, Inc. v. Arbitron, Inc., 239 F. Supp. 2d 550 (E.D. Pa. 2002).........5, 23

Budget Rent-A-Car Sys., Inc. v. Chappell, 407 F.3d 166 (3d Cir. 2005)...........................10 

California v. ARC America Corp., 490 U.S. 93 (1989).......................................................7 

Chin v. Chrysler Corp., 182 F.R.D. 448 (D.N.J. 1998)...................................................7, 8 

City of Pittsburgh v. West Penn Power Co., 147 F.3d 256 (3d Cir. 1998)..........................5 

Compagnie des Bauxites de Guinee v. Argonaut-Midwest Ins. Co., 880 F.2d 685 

(3d Cir. 1989).................................................................................................................6 

D.R. Ward Constr. Co. v. Rohm & Haas Co., 470 F. Supp. 2d 485 (E.D. Pa. 

2006) ......................................................................................................................19, 20 

In re Flonase Antitrust Litig., 610 F. Supp. 2d 409 (E.D. Pa. 2009).............................2, 15 

In re K-Dur Antitrust Litig., No. 01-1652, 2008 WL 2660783 (D.N.J. 2008) ....................8 

Levy v. Keystone Food Prods., Nos. 07-5502 et al., 2008 WL 4115856 (E.D. Pa. 

Aug. 28, 2008) ...............................................................................................................7 

In re Lorazapem & Clorazepate Antitrust Litig., 205 F.R.D. 369 (D.D.C. 2002)...............9 

Lyon v. Caterpillar, Inc., 194 F.R.D. 206 (E.D. Pa. 2000)......................................6, 10, 16 

McMahon v. Digital Equip. Corp., 944 F. Supp. 70 (D. Mass. 1996)...............................18 

Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997) ........................................5 

In re New Motor Vehicles Canadian Export Antitrust Litig., 350 F. Supp. 2d 160 

(D. Me. 2004)...............................................................................................................20 

Provda v. Farkas, No. 94-0084, 1995 WL 42308 (S.D.N.Y. Feb. 1, 1995)......................11 

Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56 (3d Cir. 2007).................................4 

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In re Relafen Antitrust Litig., 225 F.R.D. 14 (D. Mass. 2004) ............................................8 

In re Rezulin Prods. Liab. Litig., 392 F. Supp. 2d 597 (S.D.N.Y. 2005) ............................9 

Shady Grove Orthopedics Assocs., P.A. v. Allstate Ins., Co., 549 F.3d 137 (2d 

Cir. 2008) .....................................................................................................................12 

Sheet Metal Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, plc, 

No. 04-5898, 2009 WL 3617790 (E.D. Pa. Nov. 2, 2009) ..............................2, 3, 8, 19 

Shields v. Consolidated Rail Corp., 810 F.2d 397 (3d Cir. 1987).......................................6 

In re Static Random Access Memory (SRAM) Antitrust Litig., 580 F. Supp. 2d 896 

(N.D. Cal. 2008)...........................................................................................................14 

In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109 (N.D. Cal. 

2008) ............................................................................................................................14 

In re Terazosin Hydrochloride Antitrust Litig., 160 F. Supp. 2d 1365 (S.D. Fla. 

2004) ............................................................................................................................17 

In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143 (E.D. Pa. 2009)...............2, 13, 14, 17 

Winer Family Trust v. Queen, 503 F.3d 319 (3d Cir. 2007)..............................................23 

Zabilansky v. American Bldg. Restoration Prods., Inc., No. 200101985, 2004 WL 

2550458 (Mass. Super. Oct. 13, 2004) ........................................................................18 

STATE CASES 

City of Boston v. Aetna Life Ins. Co., 506 N.E.2d 106 (Mass. 1987) .......................... 17-18 

Comes v. Microsoft Corp., 646 N.W.2d 440 (Iowa 2002)...................................................7 

Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964) .....................................9 

Lorix v. Crompton Corp., 736 N.W.2d 619 (Minn. 2007)...................................................7 

PNR, Inc. v. Beacon Property Mgmt., Inc., 842 So. 2d 773 (Fla. 2003) ...........................17 

Robinson v. Toyota Motor Credit Corp., 775 N.E.2d 951 (Ill. 2002)................................16 

Spring v. Geriatric Auth. of Holyoke, 475 N.E.2d 727 (Mass. 1985)................................18 

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DOCKETED CASES 

In re: Flonase Antitrust Litig., No. 2:08-3301 (E.D. Pa. 2008).............................12, 13, 15 

In re: Wellbutrin XL Antitrust Litig., No. 2:08-2433 (E.D. Pa 2008)................................12 

STATE STATUTES 

Cal. Bus. & Prof. Code §§ 16700-16761...........................................................................17 

Cal. Bus. & Prof. Code §§ 17200-17210...........................................................................17 

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Defendants (collectively, “GSK”) submit this Memorandum of Law in support of 

their Motion to Dismiss the Consolidated Second Amended End-Payor Class Action Complaint 

(the “SAC”). 

I. INTRODUCTION 

Plaintiffs’ first amended complaint asserted a total of 119 state law claims. The 

Court dismissed all but two of these claims in its November 2, 2009 Order and Opinion (the 

“November 2 Order”) on GSK’s Motion for Judgment on the Pleadings and granted plaintiffs 

leave to amend to assert claims under the laws of states in which Wellbutrin SR was sold to 

consumers who were members of the named plaintiff plans (“Plans”). In their SAC, plaintiffs 

assert claims under 54 state laws. 

At this juncture, there are two overriding inquiries: (1) determining, by applying 

well-settled choice of law principles, which state’s law governs each Plan’s claims; and (2) 

determining whether, under the applicable state’s law, each Plan can recover. Here, choice of 

law principles dictate that the laws of the Plans’ home states (the “Home States”) govern their 

claims. But even assuming, arguendo, that the Court were to conclude otherwise and thus 

consider all 54 state laws individually, the Plans’ claims under all but Arizona law still fail. 

Before turning to a detailed discussion of these issues, we provide a brief summary of the action. 

II. BACKGROUND 

A. The November 2 Order Dismissing A Majority of Claims in The End-Payor’s 

Amended Consolidated Complaint 

The first amended complaint asserted claims under the antitrust laws of 24 

jurisdictions and the consumer protection laws of 44 jurisdictions, and for unjust enrichment, 

presumably in all 50 states plus the District of Columbia. GSK moved for judgment on the 

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pleadings based on the grounds that none of the Plans could state viable claims for relief under 

the laws of the states they had standing to invoke.

In the November 2 Order, the Court agreed with two recent decisions in this 

District that “it is [] appropriate to analyze whether a named plaintiff has a cause of action under 

each claim before deciding whether to certify a class . . . [A]t least one named Plaintiff must 

have a cause of action on a claim for that claim to survive a motion to dismiss.” Sheet Metal 

Workers Local 441 Health & Welfare Plan v. GlaxoSmithKline, plc, No. 04-5898, 2009 WL 

3617790, at *3 (quoting In re Flonase Antitrust Litig., 610 F. Supp. 2d 409, 414 (E.D. Pa. 2009) 

(Brody, J.) and citing In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 152 (E.D. Pa. 2009) 

(McLaughlin, J.)). As a result, the Court dismissed all of plaintiffs’ 68 statutory claims because 

the first amended complaint could not support an inference that the Plans had standing outside 

their home states and “[b]ecause it is clear that named End-Payor Plaintiffs have no statutory 

claims under the laws of [their home states].” 2009 WL 3617790, at *9. The only claims 

remaining were unjust enrichment claims under the laws of two of the Plans’ home states, 

Illinois and Alabama. 

Accordingly, the Court granted the Plans leave to amend their complaint to assert 

claims under the laws of specific states in which their members purchased Wellbutrin SR, but not 

to replead any dismissed claims under the laws of their home states or of states in which they do 

not have purchasing members. 

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B. The SAC 

On December 2, 2009, the Plans (consisting of the same six welfare benefit plans 

that filed the first amended complaint) filed the SAC,1

 alleging that, collectively, they 

“purchased and/or provided reimbursement for Wellbutrin SR purchases” in the following states: 

Alabama, Arkansas, Arizona, California, Colorado, Florida, Georgia, Idaho, Iowa, Illinois, 

Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New 

York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, West Virginia, 

and Wisconsin. (SAC ¶¶ 9-14). In total, the SAC asserts claims under the antitrust statutes of 11 

 

1

 The named plaintiffs are: IBEW-NECA Local 505 Health & Welfare Plan, which claims 

to be a welfare benefit plan located in Mobile, Alabama; Sheet Metal Workers Local 441 

Health & Welfare Plan, which claims to be a welfare benefit plan located in Mobile, 

Alabama; MC-UA Local 119 Health and Welfare Plan, which claims to be a welfare 

benefit plan located in Mobile, Alabama; A.F. of L. – A.G.C. Building Trades Welfare 

Plan, which claims to be a welfare benefit plan located in Mobile, Alabama; United Food 

and Commercial Workers Union and Employers Midwest Health Benefits Fund, which 

claims to be an employee welfare benefit plan and employee benefit plan located in Cook 

County, Illinois; and Sidney Hillman Health Center of Rochester, Inc., which claims to 

be a multi-employer employee welfare benefit plan but does not allege its location. The 

one individual plaintiff named in the first amended complaint, Joanne Gaddy, was 

eliminated when Plaintiffs conceded that she failed to state a claim under the laws of her 

home states of Illinois. (See Plaintiff’s Reply Memorandum of Law in Support of EndPayor Plaintiffs’ Motion for Class Certification at 76 n.22 (Docket No. 66) (E.D. Pa. Feb. 

23, 2007).) 

Although the Court clearly did not grant plaintiff Sidney Hillman leave to amend its 

claims, it has done so in the SAC and now purports to have members in other states, 

which contradicts prior pleadings that informed this Court’s decision. See Sheet Metal 

Workers, 2009 WL 3617790, at *9 n. 27 (“Sidney Hillman is the only End-Payor Plaintiff 

that did not reimburse members for purchases outside of its home state. Therefore, even 

assuming the Court allows the other named plaintiffs to raise claims in other states, 

Sidney Hillman must be dismissed because it was not injured in any state aside from New 

York.”) (citation omitted). This plaintiff was not granted leave to amend and should not 

be permitted to advance its claims further, though the reasons for their original dismissal 

are re-asserted in this motion for the Court’s reference. 

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states, the consumer protection statutes of 16 states, and unjust enrichment claims under the 

common law of 27 states.2

 

The SAC contains no other allegations pertaining to the Plans, nor does it contain 

new factual allegations regarding GSK. Although it alleges that GSK’s conduct affected 

“interstate and foreign commerce” (SAC ¶ 164) and that GSK “manufactured and sold 

substantial amounts of Wellbutrin SR in a continuous and uninterrupted flow of commerce 

across state and national lines and throughout the United States” (SAC ¶ 163), like the first 

amended complaint, the SAC does not allege that GSK’s conduct occurred in or substantially 

affected the intrastate commerce of any of the 27 states whose laws are invoked. In addition, the 

Plans do not contend that GSK engaged in any unfair or deceptive conduct, or made any 

misrepresentation, directed to consumers or to the plaintiffs. 

III. STANDARD OF REVIEW

The Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 

12(b)(6). In order to withstand a motion to dismiss for failure to state a claim under Rule 

12(b)(6), plaintiffs must plead “enough facts to state a claim to relief that is plausible on its 

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). While “well-pleaded allegations” 

should be taken as true, Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 61 (3d Cir. 2007), 

“conclusory allegations or legal conclusions masquerading as factual allegations will not suffice 

 

2

 The SAC’s monopolization claims are Count One and Four. The unfair and deceptive 

trade practices claims are Count Two and Five. The unjust enrichment claims are Count 

Three and Six. Counts One, Two and Three raise claims under the laws of states in 

which the named plaintiffs have standing under this Court’s November 2 Order while 

Counts Four, Five and Six raise claims under the laws of states in which no named 

plaintiff purchased or provided reimbursement for Wellbutrin SR, solely to “preserve the 

appellate rights of the Plaintiffs” in light of the November 2 Order dismissing those 

claims without leave to amend. GSK preserves its right to oppose the claims preserved in 

Counts Four, Five and Six on an individual basis at a later date if necessary. 

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to prevent a motion to dismiss.” Bailey v. Reed, 29 F. App’x 874, 875 (3d Cir. 2002) (quoting 

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). 

In particular, an antitrust complaint must present “more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 

Twombly, 550 U.S. at 555. As the Supreme Court has explained, because “proceeding to 

antitrust discovery can be expensive . . . ‘a district court must retain the power to insist upon 

some specificity in pleading before allowing a potentially massive factual controversy to 

proceed.’” Id. at 558 (quoting Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 

519, 528 n.17 (1983)). 

Recently, the Supreme Court, in Ashcroft v. Iqbal, amplified its holding in 

Twombly, admonishing that “Rule 8 . . . demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” 129 S. Ct. 1937, 1949 (2009). That is, conclusory or vague 

allegations do not suffice. Id. Instead, Rule 8 requires that “the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. at 1949 (emphasis added). See also Twombly, 550 U.S. at 555 n.3 

(“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to 

relief.”). Thus, the Court should not accept “unsupported conclusions and unwarranted 

inferences.” City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998). 

In short, the Court must dismiss an antitrust complaint when the plaintiff fails to plead facts to 

support an essential element of its claim. See Brunson Commc’ns, Inc. v. Arbitron, Inc., 239 F. 

Supp. 2d 550, 570-71 (E.D. Pa. 2002) (dismissing antitrust claims under the Sherman Act where 

the complaint “provided no factual allegations” that would support a core element of the claim). 

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IV. ARGUMENT 

A. The SAC Should Be Dismissed Because The Plans’ Claims Are Governed By 

Their Home State Laws, Which Do Not Permit Recovery

In its November 2 Order, the Court determined that the Plans had standing under 

the laws of states in which their members purchased Wellbutrin SR (the “Reimbursement 

States”), and granted the Plans leave to amend to add allegations regarding the specifics. But in 

deciding the standing issue, we do not believe that the Court engaged in the full choice of law 

analysis that is essential in considering the Plans’ claims.3 We note that footnote 12 of the 

Court’s November 2 Order refers briefly to choice of law, and to the extent that the Court 

intended to decide all choice of law issues in that footnote, we would respectfully ask the Court 

to reconsider its decision. An analysis of the considerations governing choice of law leads to the 

conclusion that the law of the Plaintiffs’ Home States governs their claims.4

 

The interests at play in the choice of law analysis include: 

• The interests of the Reimbursement States in allowing recovery to their citizens – 

interests that will be fully preserved even though the Plans cannot invoke the laws 

of those states; 

 

3

 Federal courts apply the choice of law rules of the forum state (i.e., Pennsylvania law) to 

determine which states’ substantive law governs the plaintiffs’ claims. Shields v. 

Consolidated Rail Corp., 810 F.2d 397, 399 (3d Cir. 1987). As noted, those rules come 

into play when there is a conflict among the laws that may apply, i.e., when the law of 

one state affords recovery while the law of the other state does not. Lyon v. Caterpillar, 

Inc., 194 F.R.D. 206, 211 (E.D. Pa. 2000). 

4

 Pennsylvania’s choice of law rules employ a “flexible approach which combines a 

relationship and interest analysis,” Compagnie des Bauxites de Guinee v. ArgonautMidwest Ins. Co., 880 F.2d 685, 688 (3d Cir. 1989), in order to identify the jurisdiction 

“most intimately concerned with the outcome of [the] particular litigation.” Lyon, 194 

F.R.D. at 212 (citing Griffith v. United Air Lines, Inc., 416 Pa. 1, 22, 203 A.2d 796, 806 

(1964)). This approach entails an analysis of the “interest” of the relevant states, and the 

“contacts” of the parties with those states, Lyon, 194 F.R.D. at 212. 

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• The interests of the Home States, which will not be furthered, and may even be 

undermined, if the Plans are permitted to invoke the Reimbursement States’ laws; 

and 

• The “physical” contacts, which compel application of the Home States’ laws to 

the Plans’ claims. 

1. The Interests of the Reimbursement States 

The legislatures of Reimbursement States that provide causes of action, for 

example, by allowing indirect purchasers to bring damages claims under state antitrust or 

consumer protection laws, have made a conscious choice to protect their own consumers. See

Levy v. Keystone Food Prods., Nos. 07-5502 et al., 2008 WL 4115856, at *6 (E.D. Pa. Aug. 28, 

2008) (Stengel, J.) (“[S]tate consumer protection laws are designed to protect the residents of the 

state in which the statutes are promulgated.”) (internal quotation omitted); Chin v. Chrysler 

Corp., 182 F.R.D. 448, 457 (D.N.J. 1998) (“Each Plaintiff’s home state has an interest in 

protecting its consumers from in-state injuries caused by foreign corporations and in 

delineating the scope of recovery for its citizens under its own laws.”) (emphasis added); Comes 

v. Microsoft Corp., 646 N.W.2d 440, 447 (Iowa 2002) (noting that state antitrust laws are 

enacted to protect in-state consumers); cf. Lorix v. Crompton Corp., 736 N.W.2d 619, 627 

(Minn. 2007) (citing expansive protection from “sharp commercial practices” afforded to 

Minnesota citizens by state antitrust law). 

Thus, in providing these causes of action, the legislatures in Reimbursement 

States were not attempting to provide causes of action to benefit plans located in other states. 

Rather, as the United States Supreme Court expressly noted in California v. ARC America Corp., 

490 U.S. 93, 101 (1989), they were protecting the interests of consumers who reside or buy 

within their borders by providing them with causes of action, as states have historically done. 

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And by dismissing the Plans’ claims, the Court will in no way subvert the 

interests of those Reimbursement States in permitting consumers who purchased Wellbutrin SR 

in those states’ pharmacies, i.e., Plan members, from vindicating their own rights.. The claims of 

Plan members are not before this Court, and thus would be totally unaffected by a ruling that the 

Plans’ claims are governed by their Home States’ laws.

5

 Plan members who have a cause of 

action against GSK for paying supra-competitive prices for Wellbutrin SR are free to bring such 

claims, whether as individuals or putative class representatives. 

2. The Interests of The Home States 

As this Court has previously ruled, the Plans do not have any statutory causes of 

action in their Home States, see Sheet Metal Workers, 2009 WL 3617790, at *9, reflecting a 

legislative choice on the part of these states not to permit recovery under state law in the 

circumstances of this case. See Chin, 182 F.R.D. at 457 (“Each Plaintiff’s home state has an 

interest in . . . delineating the scope of recovery for its citizens under its own laws.”) (emphasis 

added); In re Relafen Antitrust Litig., 225 F.R.D. 14, 25 (D. Mass. 2004) (“[L]egislative choiceseven choices not to act-must be respected: ‘Differences across states may be costly for courts and 

litigants alike, but they are a fundamental aspect of our federal republic . . . .’”.). 

To give meaning to this legislative choice, the Court should apply the Home 

States’ laws to the Plans’ claims. See In re K-Dur Antitrust Litigation, No. 01-1652, 2008 WL 

2660783, at *5 (D.N.J. 2008) (declining to permit union benefit plans to have their indirect 

purchaser antitrust claims governed by the laws of the state in which the underlying purchases 

 

5

 As the plaintiffs themselves note, they “do not seek recovery based on their members’ 

out-of-pocket payments [but rather] seek to recover reimbursements made to pharmacies 

for portions of what was paid on behalf of their members.” End Payor Plaintiffs’ Brief in 

Opposition to Defendants’ Motion for Judgment on the Pleadings, at 9 (Docket No. 222). 

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were made by their members because “the state with the greatest interest in a [plan’s] claims 

brought on its own behalf is the state where the [plan] has its principal place of business and 

from which it presumably paid the allegedly supracompetitive prices.”); In re Rezulin Prods. 

Liab. Litig., 392 F. Supp. 2d 597, 611 & n.85 (S.D.N.Y. 2005) (applying law of health plan’s 

home state to putative class claim based on overpayment for members’ prescription drugs). 

Because the Home States’ laws demonstrate a strong interest in circumscribing 

recovery for their own citizens, including the Plans, it would make absolutely no sense to permit 

the Plans to thwart the Home States’ legislative scheme by recovering under the Reimbursement 

States’ laws. Cf. In re Lorazapem & Clorazepate Antitrust Litig., 205 F.R.D. 369, 396 (D.D.C. 

2002) (“basing class eligibility on pharmacy location would result in anomalous situations in 

which a Maryland resident, for example, could benefit from the District [of Columbia’s] Illinois 

Brick repealer even though the Maryland legislature has chosen not to afford its residents such 

protections.”). 

3. “Physical” Contacts with Relevant Jurisdictions 

An analysis of the relevant “contacts” for choice of law purposes also supports 

application of the Plans’ Home States’ laws to their claims. The Pennsylvania Supreme Court 

has stated that the “[c]ontacts considered vital in determining the state of most significant 

relationship include place of injury, place of conduct, domicile of the parties, and the place 

where the relationship between the parties is centered.” Griffith v. United Air Lines, Inc., 416 Pa. 

1, 15, 203 A.2d 796, 802-03 (1964). 

A Plan’s principal place of business is a crucial factor; courts have held that “[t]he 

plaintiff’s domicil or residence, if he is a natural person, or the principal place of business, if 

plaintiff is a corporation, are contacts of substantial significance when the loss is pecuniary in 

its nature. This is so because a financial loss will usually be of greatest concern to the state with 

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which the person suffering the loss has the closest relationship.” Lyon, 194 F.R.D. at 215 (citing 

Restatement (Second) of Conflicts of Laws § 148 cmt. i). 

No other contacts weigh strongly against this conclusion. Purchases by Plan 

members in other states – whether while on vacation, visiting family, or just passing through – 

could not conceivably create a relationship between the Plans and those states. Notably, because 

the Plans do not allege how many reimbursements they made to members residing in 

Reimbursement States, there is no factual basis in the SAC from which to infer systematic 

contacts between the Plans and any Reimbursement State. Nor does the SAC contain allegations 

connecting GSK’s alleged conduct to any of the relevant states. Finally, courts have rejected the 

defendants’ domicile as a substantial factor. See, e.g., id. at 215 (“[P]utative class members’ 

residence is a contact of greater significance than defendant’s principal place of business.”). As 

a result, the states with the most significant relationship to the claims are the Plans’ home states. 

Applying the laws of the Plans’ Home States will also help ensure uniformity of 

result and ease of administration. See Budget Rent-A-Car System, Inc. v. Chappell, 407 F.3d 

166, 170 (3d Cir. 2005) (uniformity and ease of administration are relevant factors in the choiceof-law analysis) (citing Restatement (Second) of Conflict of Laws § 6). It is far simpler and 

fairer to apply a single state’s law to each individual Plan than to apply a hodge-podge of 

different state laws to that Plan depending on where a particular reimbursement was made. 

Applying the law of the Plans’ Home States would also simplify the Court’s task considerably by 

eliminating the need to decide the viability of each Plan’s claims under a multitude of different 

state laws. 

* * * 

In sum, taking both state interests and contacts into account, Pennsylvania choice 

of law rules lead to the conclusion that the Plans’ claims will be governed by the laws of their 

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Home States, in which they allegedly became poorer due to GSK’s conduct. See Provda v. 

Farkas, No. 94-0084, 1995 WL 42308, at *2 (S.D.N.Y. Feb. 1, 1995). Accordingly, because the 

Court has already decided that the Plans’ statutory claims in their Homes States fail, no statutory 

claims remain.6

B. Even If the Plans Can Invoke All State Claims in the SAC, All But One State 

Statutory Claim Fails on Individual State Law Grounds 

Assuming arguendo that the foregoing choice of law discussion does not result in 

the disposition of all statutory claims, the Court should still dismiss every state statutory claim 

raised in the SAC, with the exception of a claim under Arizona antitrust law, for failure to state a 

cause of action. GSK’s arguments as to the remaining statutory claims may be summarized as 

follows: 

• Indirect purchasers cannot bring claims under five of the statutes. 

• Four of the consumer protection statutes do not recognize standing of 

welfare benefit plans, or similar entities, to bring claims. 

• Plaintiffs have not pled the intrastate conduct or effects required by 

fourteen of the statutes. 

• Plaintiffs do not allege unfair, fraudulent, deceptive, and/or 

unconscionable conduct as required by thirteen of the consumer protection 

statutes. 

• Plaintiffs’ allegations of unilateral monopolization do not state a claim 

under four of the antitrust statutes. 

• Plaintiffs have failed to meet the pre-filing notice requirement of one 

consumer protection statute. 

 

6

 In Section C, we will discuss the Plans’ two remaining Home State common law unjust 

enrichment claims, as well as the other 25 unjust enrichment claims brought under 

Reimbursement States’ laws. 

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For ease of reference, GSK attaches Appendix 1 (a chart summarizing the grounds for dismissal 

of each relevant statute) and Appendix 2 (a chart that provides authority for each of GSK’s 

individual state law arguments, which are generally discussed in the following sections.)7

As a preliminary matter, GSK notes that the Plans have re-pled three New York 

state law claims that this Court dismissed without leave to amend in its November 2 Order. See

2009 WL 3617790, at *1. The Plans misleadingly ask this Court to defer ruling on “the New 

York claims” until the United States Supreme Court rules in Shady Grove Orthopedics 

Associates, P.A. v. Allstate Insurance Co., 549 F.3d 137 (2d Cir. 2008), cert. granted, 129 S. Ct. 

2160 (2009). However, as in its prior motion, GSK offers several alternative bases for dismissal 

of the New York antitrust claim, rendering the requested deferral pointless. Moreover, contrary 

to plaintiffs’ insinuation, a decision in Shady Grove would be irrelevant to this Court’s holding 

on New York consumer protection law and unjust enrichment law. The Plans have therefore repled these dismissed claims without leave to do so and with no new basis for asserting them. 

They should accordingly be dismissed. See 2009 WL 3617790, at *5-7. However, these claims 

are included in the discussion below to refresh the Court’s memory as to the multiple grounds for 

dismissal. 

1. Indirect Purchasers Cannot Bring Claims Under Four of the 

Antitrust and State Consumer Protection Statutes 

In Illinois Brick v. State of Illinois, the Supreme Court held that indirect 

purchasers lack standing to seek damages under the federal antitrust laws. 431 U.S. 720, 746 

 

7

 Three plaintiffs in this action are also plaintiffs in one or both of two pending antitrust 

actions against GSK in this District, In re Wellbutrin XL Antitrust Litigation, No. 2:08-

cv-2433 (E.D. Pa) (McLaughlin, J.) and In re Flonase Antitrust Litigation, No. 2:08-cv3301 (E.D. Pa) (Brody, J.). To the extent that plaintiffs have raised claims here that were 

conceded or lost in those litigations, such inconsistencies are noted here. 

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(1977). This bright-line rule prevents duplicative recoveries by indirect and direct purchasers for 

the same alleged conduct and relieves federal district courts of the burden of making complex 

apportionments of damages among multiple levels of distribution. Id. at 745-46. As determined 

in Flonase and Wellbutrin XL, the state antitrust statutes of Florida and Massachusetts also 

prohibit indirect purchaser claims, and thus plaintiffs cannot sue under these two states’ antitrust 

laws.8 (See In re: Flonase Antitrust Litig., No. 2:08-3301, Docket No. 37, at 20 (conceding that 

Florida and Massachusetts antitrust laws bar indirect purchaser claims)); In re Wellbutrin XL 

Antitrust Litig., 260 F.R.D. 143, 160-61 (E.D. Pa. 2009) (dismissing Florida antitrust claim due 

to indirect purchaser bar). 

For the same reason, the Plans also cannot state claims under the consumer 

protection statutes of three states. Two of these states – Idaho and Missouri – expressly bar 

indirect purchasers from bringing claims under their consumer protection or unfair trade statutes, 

because indirect purchasers are either not contemplated by the state’s statute or are too remote. 

The third state, Oklahoma, more specifically bars indirectly injured plaintiffs from evading 

Illinois Brick by bringing antitrust claims as violations of its state consumer protection statute. 

The Plans’ consumer protection claims under the laws of these three states should therefore be 

dismissed for this additional reason.9

 

8

 The case citations supporting the statutory arguments in Section IV.B are set forth in 

Appendix B, according to the subsection of the brief. For citations to cases supporting 

this particular argument, see Appendix B at 1. 

9

See Appendix B at 1. 

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2. Welfare Benefit Plans, Such as Plaintiffs, Cannot Bring Claims 

Under Four Consumer Protection Statutes 

The consumer protection statutes of two states – North Carolina and Oklahoma – 

only provide a cause of action for consumers or business competitors of the defendant. Two 

other states – Pennsylvania and Rhode Island – limit the reach of their consumer protection 

statutes to persons that purchase goods primarily for personal, family, or household purposes.10

 

Here, plaintiffs do not – and cannot – allege that they are consumers of Wellbutrin 

SR, or that they purchased the drug for primarily personal, family, or household purposes. 

Instead, plaintiffs are welfare benefit plans and similar entities that “purchase and/or provide 

reimbursement” for their members’ purchases. (SAC ¶¶ 9-14.) Accordingly, the Plans cannot 

assert claims under the consumer protection statutes of the above-mentioned states, i.e., North 

Carolina, Oklahoma, Pennsylvania, and Rhode Island. See In re Static Random Access Memory 

(SRAM) Antitrust Litig., 580 F. Supp. 2d 896, 908-09 (N.D. Cal. 2008) (dismissing Rhode Island 

and Pennsylvania consumer protection claims where plaintiffs were business entities); In re TFTLCD (Flat Panel) Antitrust Litig., 586 F. Supp. 2d 1109, 1128-30 (N.D. Cal. 2008) (same). 

3. Plaintiffs Fail to Plead the Intrastate Conduct or Effects That 

Fourteen State Laws Require 

Fourteen of the state antitrust and consumer protection laws cited in the SAC 

require that a defendant’s actions either occur, at least in part, within the state, or affect intrastate 

commerce in a substantial way. New York’s antitrust statute applies only to wholly intrastate 

conduct, whereas four other state antitrust laws – Massachusetts, Michigan, Nevada, and West 

Virginia – require that the alleged anticompetitive conduct must have occurred, at least in part, in 

the state. The antitrust laws of California, Minnesota, North Carolina, and Wisconsin extend to 

 

10 See Appendix B at 2. 

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claims only where there are allegations of substantial intrastate effects.11 At least five state 

consumer protection laws — Arizona, Florida, Missouri, New York and North Carolina — also 

require some nexus of this nature.12 

Plaintiffs do not allege conduct within any particular state, nor do they allege that 

GSK’s actions had substantial effects on any one state’s intrastate commerce. On the contrary, 

plaintiffs have alleged that GSK’s actions substantially “affected interstate and foreign 

commerce” (SAC ¶ 164); that “GSK manufactured and sold substantial amounts of Wellbutrin 

SR in a continuous and uninterrupted flow of commerce across state and national lines and 

throughout the United States” (SAC ¶ 163); and that GSK’s activities were within the flow of 

and have substantially affected interstate commerce. (SAC ¶¶ 163-64.) Since plaintiffs allege 

no facts to support intrastate conduct or substantial intrastate effects in any state, their claims 

under these nine antitrust laws and five consumer protection laws fail. 

4. Plaintiffs Do Not Allege the Type of Conduct Proscribed by 

Thirteen Consumer Protection Statutes 

Thirteen of the statutes identified in the SAC require that a claim be based on a 

fraudulent, deceptive, or, in some cases, unconscionable commercial practice. The states are 

Arizona, Arkansas, California, Colorado, Idaho13, Michigan, Minnesota, Missouri, Nevada, New 

 

11 See Appendix B at 3-4. Judge McLaughlin’s decision in Wellbutrin XL Antitrust 

Litigation not to dismiss the Wisconsin antitrust claim on this basis, despite recognizing 

that the complaint was “short on specifics as to the exact impact of the defendants’ 

actions within any particular state,” 260 F.R.D. at 166-67, was directly contrary to Judge 

Brody’s prior decision to dismiss the Tennessee antitrust claim on the same basis and 

should not be followed here. See Flonase Antitrust Litig., 610 F. Supp. 2d at 416. 

12 See Appendix B at 4-5. 

13 This claim was conceded by three of the same plaintiffs and their counsel in the Flonase 

Antitrust Litigation on the same basis that GSK moves to dismiss it here. (See In re: 

Flonase Antitrust Litig., No. 2:08-cv-3301, Docket No. 37, at 22 n.21). 

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York, Oklahoma, Pennsylvania, and Rhode Island.14 In some of these states, the conduct in 

question must also be directed to consumers. Plaintiffs, however, do not allege as part of their 

“sham litigation” claim that GSK committed any fraudulent or deceptive conduct, or that it 

engaged in unconscionable commercial practice, nor do they allege that any such conduct was 

directed at consumers. Instead, plaintiffs merely claim that they overpaid for Wellbutrin SR as a 

result of the filing of “objectively baseless” patent infringement suits that allegedly delayed 

market entry of generic competition. See, e.g., SAC ¶ 5, ¶ 71, ¶ 85, ¶ 116.15 

As another court in this District has recognized, the purpose of state consumer 

protection statutes is to protect consumers from fraudulent, deceptive or unfair practices in trade 

or commerce. See Lyon, 194 F.R.D. at 215-16. Each of the consumer protection acts invoked by 

plaintiffs requires a showing of fraud, deception, or unfairness. Yet, plaintiffs include no factual 

allegations that they were defrauded or deceived by GSK’s alleged conduct here, i.e. pursuing 

allegedly baseless patent litigation. Plaintiffs’ attachment of conclusory labels to this conduct, 

which they describe without elaboration as “unfair, unconscionable, deceptive or fraudulent acts 

or practices,” is insufficient. (SAC ¶ 202). As the Supreme Court held in Ashcroft, “the 

conclusory nature of respondent’s allegations . . . disentitles them to the presumption of truth.” 

Ashcroft, 129 S. Ct. at 1951. 

Nor could GSK’s conduct meet the widely accepted definition of “unfair” 

practices in this context because “charging an unconscionably high price generally is 

 

14 See Appendix B at 6-8. 

15 Plaintiffs’ Walker Process claim does allege that GSK made misrepresentations to the 

Patent and Trademark Office (“PTO”). See, e.g., SAC ¶ 118. But such alleged 

misrepresentations are not directed at consumers and do not constitute sales conduct or a 

commercial practice. 

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insufficient to establish a claim for unfairness.” Robinson v. Toyota Motor Credit Corp., 775 

N.E.2d 951, 961 (Ill. 2002) (dismissing unfair trade practices claim against hospitals based on 

allegedly unfair billing practices) (emphasis added); see also PNR, Inc. v. Beacon Property 

Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (adopting same standard for unfairness as 

Robinson). Plaintiffs’ allegations thus are insufficient to state consumer protection claims and 

should be dismissed. 

5. Allegations of Unilateral Monopolization Do Not State a Claim 

Under the Laws of Four Other States 

By their plain language, the state antitrust statutes of California,16 New York, 

Nevada and Wisconsin do not apply to unilateral anticompetitive conduct,17 i.e., monopolization, 

which is all that plaintiffs allege here. These four state antitrust claims should therefore be 

dismissed because they do not involve the concerted, inter-enterprise action required by the state 

statutes. See Wellbutrin XL Antitrust Litig., 260 F.R.D. at 159 (recognizing antitrust statutes of 

California, New York, Nevada and Wisconsin to be limited to claims based on concerted action 

or conspiracy to monopolize). 

6. Plaintiffs Failed to Meet Mandatory Pre-Filing Notice Requirements 

of One State 

Under the Massachusetts consumer protection law, a plaintiff cannot bring a claim 

unless she alleges and can prove that she made written demand for relief at least 30 days prior to 

 

16 Plaintiff’s duplicative inclusion of its consumer protection claim under Cal. Bus. & Prof. 

Code §§ 17200-17210 in both Counts One and Two in order to avoid this limitation in the 

California antitrust law, Cal. Bus. & Prof. Code §§ 16700-16761, should not be 

permitted. See In re Terazosin Hydrochloride Antitrust Litig., 160 F. Supp. 2d 1365, 

1378-79 (S.D. Fla. 2004) (finding unilateral monopolization proscribed under the Unfair 

Competition Law, but not the Cartwright Act). 

17 See Appendix B at 9. 

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the filing of the action.18 See City of Boston v. Aetna Life Ins. Co., 506 N.E.2d 106, 109 (Mass. 

1987) (“The failure of the City to allege the sending of a demand letter is fatal to its [chapter 

93A] claim.”); Spring v. Geriatric Auth. of Holyoke, 475 N.E.2d 727, 735-36 (Mass. 1985) 

(dismissing for failure to provide notice under Mass. Gen. Laws ch. 93A, § 9(3)); Zabilansky v. 

American Bldg. Restoration Prods., Inc., No. 200101985, 2004 WL 2550458, at *13 (Mass. 

Super. Oct. 13, 2004) (citing Spring) (“A demand letter listing the specific unfair and 

deceptive practices alleged is a prerequisite to suit and is a special element of a 93A claim that 

must be alleged and proved”) (emphasis added); see also McMahon v. Digital Equip. Corp., 944 

F. Supp. 70, 77 (D. Mass. 1996) (“The plaintiff has not alleged that she sent a 30-day demand 

letter to [defendant], a prerequisite to bringing a suit . . . Such a failure is fatal on a motion to 

dismiss.”). GSK received no such demand and, moreover, no such demand has been alleged.19

 

This claim therefore must be dismissed – as the Supreme Judicial Court of Massachusetts did in 

City of Boston and Spring. 

Accordingly, assuming arguendo that each statutory claim in the Reimbursement 

States must be analyzed, they all must be dismissed for the reasons discussed above, except the 

claim under Arizona antitrust law. 

 

18 See Appendix B at 9. 

19 The exceptions to the statute’s demand requirement do not apply. The requirement is 

waived only if the defendant “does not maintain a place of business or does not keep 

assets within the commonwealth.” Mass. Gen. Laws. 93A, § 9(3) (emphasis added). 

Neither exception applies here because, as its public website makes clear, GSK maintains 

a global research facility in Massachusetts, constituting both a place of business and instate assets. See http://us.gsk.com/html/career/career-working-locations.html. 

Case 2:04-cv-05898-LS Document 249 Filed 01/11/10 Page 25 of 31
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C. Plaintiffs’ Unjust Enrichment Claims Fail to State a Claim in All But One 

State 

Plaintiffs’ claims under the unjust enrichment laws of twenty-seven states can be 

dismissed for various reasons, as discussed below.20

1. Unjust Enrichment Cannot Be Used To Circumvent A State’s 

Adoption of Illinois Brick

In its November 2 Order, the Court declined to adopt a universal rule that parties 

cannot assert unjust enrichment claims based on alleged anticompetitive conduct as a means to 

avoid an indirect purchaser bar on state antitrust claims, see Sheet Metal Workers, 2009 WL 

3617790, at *7, but it expressed openness to state-specific arguments, id. at *7 n.21 (dismissing 

unjust enrichment where state courts “have addressed the question specifically,” as in New 

York). Here, eight states in addition to New York – California, Florida, Indiana, Louisiana, 

Massachusetts, Minnesota, Pennsylvania and West Virginia – specifically bar unjust enrichment 

claims that circumvent state law provisions, such as indirect purchaser bars, and those claims 

should be dismissed.21

2. Plaintiffs Cannot Recover for Unjust Enrichment Under the Laws of 

States That Either Do Not Allow Equitable Remedies for Antitrust 

Violations or Do Not Allow These Plaintiffs to Recover 

In its prior opinion, the Court referred to, but did not expressly rule on, GSK’s 

“generalized” argument that plaintiffs may not utilize unjust enrichment as a means to 

circumvent limitations imposed by state antitrust laws. See Sheet Metal Workers, 2009 WL 

3617790, at *6-7 (citing D.R. Ward Constr. Co. v. Rohm & Haas Co., 470 F. Supp. 2d 485, 506 

 

20 The weakness of the unjust enrichment claims can best be demonstrated by the Plans’ 

choice not to seek class certification for such claims. 

21 See Appendix B at 10-11. 

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DMEAST #12122232 v1 20

(E.D. Pa. 2006)). Even assuming the Court intended to reject that argument based on D.R. Ward, 

that decision is distinguishable in two important respects from this case. As an initial matter, as 

the Court noted in footnote 20 of its earlier opinion, D.R. Ward held that no circumvention was 

present because the state statutes at issue allowed indirect purchasers to recover. In contrast, 

many of the statutes at issue here do not allow recovery for these plaintiffs because of indirect 

purchaser bars and other statutory limitations. (See Appendix A at 1.) 

In addition, D.R. Ward indicated that its analysis would have been altered had the 

defendant demonstrated that the statutory language of the relevant states’ antitrust laws did not 

provide for equitable relief such as unjust enrichment. D.R. Ward, 470 F. Supp. 2d at 506 

(“[D]efendants failed to argue that state statutes permitting indirect purchaser claims fail to 

authorize restitutionary relief.”) (quoting In re New Motor Vehicles Canadian Export Antitrust 

Litig., 350 F. Supp. 2d 160 (D. Me. 2004)). 

Here, in contrast to the defendant in D.R. Ward, GSK has analyzed the 

statutory language in the relevant states and identified those that do not provide for equitable 

relief as a remedy for antitrust violations — Alabama, Arkansas, Colorado, Georgia, Illinois, 

Louisiana, Massachusetts, Minnesota, Nevada, New York, North Carolina, Rhode Island, 

Texas and West Virginia.22 Accordingly, this Court should dismiss those unjust enrichment 

claims. See New Motor Vehicles, 350 F. Supp. 2d at 212 (“[T]he statute creating liability can 

override otherwise relevant common law restitution principles by permitting such relief, by 

prohibiting such relief or by limiting or enlarging the scope of such restitutionary relief. . . . I 

 

22 See Appendix B at 12-14. The quoted provisions of each statute in this section of 

Appendix B enumerate the relief available under the statute; for all of these states, neither 

the quoted provision nor any other provision of that statute provides for equitable relief 

(aside from injunctive relief in some states). 

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DMEAST #12122232 v1 21

do not have unlimited compass as a common law judge to determine what the remedy should 

be.”). 

3. An Unjust Enrichment Plaintiff Must Confer A Direct Benefit on 

Defendant 

In the following ten states, unjust enrichment requires that the “unjust” benefit in 

question be directly conferred by the plaintiff on the defendant – Florida, Georgia, Idaho, 

Michigan, Missouri, North Carolina, Oklahoma, Pennsylvania, and Wisconsin. Because here, no 

benefit was directly conferred by the Plans on GSK, the unjust enrichment claims under the laws 

of the foregoing states must be dismissed.23

4. An Unjust Enrichment Plaintiff Must Not Be Too Remote from 

Defendant 

As this Court recognized in its November 2 Order with respect to New York 

unjust enrichment law, certain states bar claims for unjust enrichment when the relationship 

between plaintiff and defendant is “too attenuated,” even if strict privity is not required. 2009 

WL 3617790, at *7. Because “end-payors” such as the Plans “ha[ve] no relationship with GSK 

because [they] ‘purchase[]’ the drug not from GSK but from a ‘direct purchaser,’ such as a 

national drug wholesaler,” their relationship is too attenuated to state claims under such laws. Id. 

In addition to New York, the unjust enrichment claims under Iowa and Texas law fail for the 

same reason.

24

 

 

23 See Appendix B at 15-16. 

24 See Appendix B at 17. 

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5. An Unjust Enrichment Plaintiff Must Exhaust Remedies Against 

The Party With Whom It Has Privity to Recover Benefit 

In two states, a plaintiff cannot bring an unjust enrichment claim against a 

defendant with whom it is not in privity unless it has exhausted its remedies against those parties 

with whom it is in privity. That is, a Plan cannot bring a claim against GSK unless it either has 

pursued a claim against the party with whom it dealt directly or has made sufficient allegations to 

explain the futility of such effort. No such allegations were made here with respect to any state. 

Therefore, the unjust enrichment claims under Kentucky and Tennessee law should be 

dismissed.25

* * * 

As in the preceding section, the foregoing analysis supports dismissal of unjust 

enrichment claims in all states except Arizona. 

 

25 See Appendix B at 18. 

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V. CONCLUSION 

For all of the foregoing reasons, GSK respectfully requests that this Court enter an 

Order dismissing, with prejudice, all claims in the Consolidated Second Amended Class Action 

Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs should not be 

permitted to amend the complaint a third time as it is clear “that amendment would be futile.” 

Winer Family Trust v. Queen, 503 F.3d 319, 330-31 (3d Cir. 2007) (internal quote and citations 

omitted); see also Brunson Commc’ns, Inc. v. Arbitron, Inc., 239 F. Supp. 2d 550, 580 (E.D. Pa. 

2002) (dismissing the plaintiff’s promissory estoppel claim with prejudice because, “[i]f facts 

existed to support such a claim, Plaintiff would know them.”). 

Dated: January 11, 2010 Respectfully submitted, 

/s/ Arthur Makadon 

Arthur Makadon 

makadon@ballardspahr.com 

Edward D. Rogers 

rogers@ballardspahr.com 

Susanna R. Greenberg 

greenbergsr@ballardspahr.com 

BALLARD SPAHR LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

(215) 665.8500 

David P. Gersch 

James W. Cooper 

Daniel S. Pariser 

ARNOLD & PORTER LLP 

555 12th Street, N.W. 

Washington, D.C. 20004 

(202) 942.5000 

Counsel for Defendants GlaxoSmithKline, 

PLC and SmithKline Beecham Corp. d/b/a 

GlaxoSmithKline

Case 2:04-cv-05898-LS Document 249 Filed 01/11/10 Page 30 of 31
CERTIFICATE OF SERVICE

I, Susanna R. Greenberg, hereby certify that, on January 11, 2010, I caused the 

foregoing Defendants’ Motion to Dismiss, the supporting Memorandum of Law, and a proposed 

order to be served upon all counsel of record, identified below, via the ECF system and 

electronic mail: 

Joseph H. Meltzer Michael M. Buchman 

SCHIFFREN BARROWAY TOPAZ POMERANTZ HAUDEK BLOCK 

& KESSLER, LLP GROSSMAN & GROSS LLP 

280 King of Prussia Road 100 Park Avenue, 26th Floor 

Radnor, PA 19087 New York, New York 10017 

Tel: (610) 667-7706 Tel: (212) 661-1100 

Fax: (610) 667-7056 Fax: (212) 661-8665 

Thomas M. Sobol 

HAGENS BERMAN SOBOL 

SHAPIRO L.L.P. 

One Main Street, 4th Floor 

Cambridge, MA 02142 

Tel: (617) 482-3700 

Fax: (617) 482-3003 

Dated: January 11, 2010 /s/ Susanna R. Greenberg 

 Susanna R. Greenberg 

Case 2:04-cv-05898-LS Document 249 Filed 01/11/10 Page 31 of 31