Carolina marketplace. See Section III.B.3. of End-
Payor Plaintiffs’ Brief in Opposition to
Defendants’ Motion to Dismiss.

19


of recovery. FED. R. Clv. P. 8(a)(3).

North Carolina

N.C. Gen. Stat. § 75-16 (“If any person shall be
injured or the business of any person, firm or
corporation shall be broken up, destroyed or
injured by reason of any act or thing done by any
other person, firm or corporation in violation of
the provisions of this Chapter, such person, firm
or corporation so injured shall have a right of
action on account of such injury done, and if
damages are assessed in such case judgment shall
be rendered in favor of the plaintiff and against
the defendant for treble the amount fixed by
the verdict.”)

Plaintiffs do not seek equitable relief under the
UDTPA, but rather, Plaintiffs seek equitable relief
under a separate claim for unjust enrichment.
While Defendant is correct in noting that N.C.
Gen. Stat. § 75-16 does not provide equitable relief
for violations of N.C. Gen. Stat. § 75-1.1, § 75-16,
it does not prohibit separate claims for unjust
enrichment or any other cause of action. North
Carolina and Fourth Circuit courts have allowed
claims of unjust enrichment to continue, even
where claims for unfair and deceptive trade
practices were dismissed. See, e.g., TSC Research,
LLC v. Bayer Chems. Corp., 552 F. Supp. 2d 534
(M.D.N.C. 2007) (denying motion to dismiss the
unjust enrichment claim, but granting motion to
dismiss the UDTPA claim due to failure to allege a
specific deceptive act).

Rhode Island

RL § 6-35-11 (“Any person or public body, including
the United States, who shall be injured in his or her
business or property by reason of a violation of the
provisions of this chapter may sue in superior court
and shall recover threefold the damages sustained by
him or her, together with reasonable costs of suit and
any reasonable attorneys’ fees that may be granted
at the discretion of the court. The reasonable costs of
suit may include, but shall not be limited to, the
expenses of discovery and document reproduction.”).

Plaintiffs assert claims under the Rhode Island
Deceptive Trade Practices Act, R.I. Gen. Laws §
6-13.1-1 et seq., not the Antitrust Act. The Act
explicitly allows the court discretion to award
other equitable relief as deemed necessary or
proper. R.I. Gen. Laws § 6-13.1-5.2(a).

Several courts have allowed unjust enrichment
claims to be asserted alongside state antitrust and
consumer protection statutes. In re Static Random
Access Memory Antitrust Litig., No. 07-CV-1819,

40



APPENDIX 6: PLAINTIFFS HAVE MET STATE NOTICE REQUIREMENTS

State Position From Defendants’ Appendix B, p. 9 Law Confirming that Plaintiffs May Bring
Claims Under the Following Statutes
Massachusetts Spring v. Geriatric Auth. of Holyoke, 475 N.E.2d The filing of numerous complaints well over 30

727, 735 (Mass. 1985) (dismissing for failure to
provide notice under Mass. Gen. Laws ch. 93A,

§ 9(3)); see also McMahon vy. 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.”)

days prior to the filing of the SAC on December 2,
2009, effectively acted as sufficient notice of
demand under Chapter 93A, § 9(3). See, e.g.,
Towne v. North End Isuzu, 10 Mass. L. Rep. 340,
1999 Mass. Super. LEXIS 302, at *5 (Mass. Super.
Ct. June 17, 1999) (:[P]laintiffs need not have filed
this pre-suit demand letter prior to the filing of any
action against defendants, but merely before the c.
93A claims are propounded, either by a motion to
amend the original suit, or in a separate suit.”)

Plaintiffs sent a written notice/demand letter to
Massachusetts in 2002 when Wellbutrin I was
filed, and sent another letter in 2007 when the
Consolidated Amended Complaint in Wellbutrin IT
was filed.

36



| SAC {ff 85-86).

Further, Defendants’ reliance upon Lawrence v.
UMLIC-Five Corp. is misplaced. In that case, the
court was faced with foreign plaintiffs alleging
violations of North Carolina’s UDTPA for alleged
foreign injuries. Lawrence v. UMLIC-Five Corp.,
No. 06-CV-20643, 2007 WL 2570256, at *6 (N.C.
Super. June 18, 2007). Unlike the plaintiffs in
Lawrence which alleged purely foreign injuries,
Plaintiffs here allege injuries that occurred within
North Carolina as a result of the illegally delayed
entry of generic Wellbutrin SR into the North
Carolina marketplace. See Section III.B.3. of End-
Payor Plaintiffs’ Brief in Opposition to
Defendants’ Motion to Dismiss.

West Virginia

W. Va. Code § 47-18-4 (“[T]he establishment,
maintenance or use of a monopoly or an attempt to
establish a monopoly of trade or commerce, any part
of which is within this State, by any persons for the
purpose of excluding competition or controlling,
fixing or maintaining prices is unlawful.”); Kessel v.
Monongalia County Gen. Hosp. Co., 648 S.E.2d
366, 375 (W. Va. 2007) (noting that the West
Virginia antitrust statute differs from the Sherman
Act in that it applies to antitrust violations within the
State).

The very language of the West Virginia statute
confirms that Plaintiffs have satisfied its
requirements on this motion to dismiss by alleging
nationwide sales of generic Wellbutrin SR that
necessarily includes sales in the state of West
Virginia. See Section III.B.3. of End-Payor
Plaintiffs’ Brief in Opposition to Defendants’
Motion to Dismiss.

“Federal courts have recognized that the Act
applies to all anticompetitive conduct that
produces in-state effects.” In re Chocolate
Confectionary Antitrust Litig., No. 1:08-MDL-
1935 (M.D. Pa. Mar. 4, 2009)(citations omitted).

See_also In _re New Motor Vehicles Canadian

13



Colorado

Rhino Linings USA, Inc. v. Rocky Mountain Rhino
Lining, Inc., 62 P.3d 142, 144 (Colo. 2003) (stating
that a “necessary element[]” under the Colorado
Consumer Protection Act is an allegation that
defendant “engaged in a deceptive trade practice,
which requires a false statement of fact that either
induces the recipient to act or has the capacity to
deceive the recipient”); in re New Motor Vehicles
Canadian Export Antitrust Litig., 350 F. Supp. 2d
160, 179 (D. Me. 2004) (holding that allegations of
anticompetitive behavior were not actionable under the
Colorado Consumer Protection Act (CCPA) because
neither the statute’s enumerated deceptive practices nor
its catch-all provision included such conduct).

The Rhino court was concerned only with “what a
plaintiff must prove to establish a deceptive trade
practice.” Rhino Linings USA v. Rocky Mt. Rhino
Lining, 62 P.3d 142, 147 (Colo. 2003). The court
noted, however, that “unfair or deceptive trade
practice[s]” are actionable under Colorado’s
Consumer Protection Act. Jd. at 146 (emphasis
added).

All that Plaintiffs must allege at this juncture is
that: (1) Defendants engaged in an unfair or
deceptive trade practice; (2) the challenged
practice occurred in the course of Defendants’
business, vocation, or occupation; (3) it
significantly impacts the public as actual or
potential consumers of the defendant’s goods,
services, or property; (4) Plaintiffs suffered injury
in fact to a legally protected interest; and (5) the
challenged practice caused Plaintiffs’ injury. Jd. at
146-147 (citing Hall v. Walter, 969 P.2d 224, 235
(Colo. 1998)).

In New Motor Vehicles, the plaintiffs’ claims were
dismissed for failure to meet the pleading
requirements. Here, the SAC adequately sets forth
the requisite conduct and Plaintiffs claims survive.
See generally SAC §§ 1-194. See, e.g., SAC 7
(“The laws governing approval and marketing of
pharmaceutical products are meant to balance the
competing policy goals of providing new drug
innovators _an__economic _return__on___ their

23



2009 U.S. Dist. LEXIS 110407, at *29, 77 (N.D.
Cal. Nov. 25, 2009) (certifying class of indirect
purchasers under state antitrust and consumer
protection statutes, as well as for claims of unjust
enrichment); Jn re Chocolate Confectionary
Antitrust Litig., 602 F. Supp. 2d 538, 587 (M.D.
Pa. 2009) (indicating unjust enrichment claims
allowed where violation of state Consumer
Protection Act alleged, but requiring complaint to
identify the states under whose law plaintiffs
brought their claims).

Texas

Tex. Bus & Com. Code Ann. § 15.21(a)(1) (“Any
person or governmental entity . .. whose business or
property has been injured by reason of any conduct
declared unlawful in Subsection (a), (b), or (c) of
Section 15.05 of this Act may sue any person, other
than a municipal corporation, . . .and shall recover
actual damages sustained, interest on actual damages
for the period beginning on the date of service of
such person’s pleading setting forth a claim under
the antitrust laws and ending on the date of judgment .

and the cost of suit, including a reasonable
attorney's fee; provided, however, that if the trier of
fact finds that the unlawful conduct was willful or
flagrant, it shall increase the recovery to threefold the
damages sustained and the cost of suit, including a
reasonable attorney’s fee; provided that interest
on actual damages as specified above may not be
recovered when recovered damages are increased
threefold.”).

Plaintiffs do not assert claims under the Texas
Antitrust Act, only for common law unjust
enrichment. Plaintiffs’ claims are based on
reimbursements for purchases of Defendant’s
product and Defendant’s unfair and inequitable
overcharge for that product.

“The unjust enrichment doctrine applies principles
of restitution to disputes where there is no actual
contract and is based on the equitable principle that
one who receives benefits which would be unjust
for him to retain ought to make restitution.”
Walker v. Cotter Props., 181 S.W.3d 895, 900
(Tex. App. Dallas 2006).

4l



court in Gibbons also noted that experts generally
consider direct privity to be irrelevant to the
analysis under consumer protection laws. Jd. at
670 n.13. See also Torp v. GMAC, No. 05-CV-
1042, 2007 U.S. Dist. LEXIS 71319, at *7-8
(W.D. Mo. Sept. 24, 2007) (denying summary
judgment on MPA claim by consumer who
received a product or services through a third

party).

Defendants’ reliance on Ireland v. Microsoft, No.
00-CV-201515, 2001 WL 1868946, at *1 (Mo.
Cir. Jan 24, 2001) is misplaced. That court only
held the MMPA was inapplicable to the licensing
arrangement involved in that case. Id.
Accordingly, Plaintiffs’ Missouri claim should be
sustained, given the recent Missouri Supreme
Court decision in Gibbons.

Oklahoma

Major v. Microsoft Corp., 60 P.3d 511, 517 (Okla.
Civ. App. 2002) (“[Plaintiff] should not be permitted
under the law to avoid the United States Supreme
Court's policy choices expressed in IIlinois Brick by
recasting his claims of anticompetitive conduct as a
Consumer Protection Act claim.”).

The Oklahoma Consumer Protection Act prohibits
“Unfair trade practices,” defined as “any practice
which offends established public policy or if the
practice is immoral, unethical, oppressive,
unscrupulous or substantially injurious to
consumers.” OKLA. STAT. tit. 15, §752 (2009);
OKLA. STAT. tit. 15, §753 (2009) (making unfair or
deceptive trade practice unlawful). Unlike the
plaintiffs in Major v. Microsoft Corp., Plaintiffs’
allegations satisfy the statutory requirements at
this juncture. See SAC {7 (“The laws governing
approval and marketing of pharmaceutical
products are meant to balance the competing



trade or commerce in this state.” Nev. Rev. Stat.
Ann. § 598A.060 (1)(b)(e) (emphasis added).

Therefore, by its very language, this statute
includes unilateral monopolies.

New York

N.Y. Gen. Bus. Law § 340(1) (defining as illegal
“Te]very contract, agreement, arrangement, or
combination” in restraint of trade); Creative Trading
Co., Inc. v. Larkin-Pluznick-Larkin, Inc., 523
N.Y.S.2d 102, 103 (App. Div. 1988) (“[T]he
Donnelly Act mandates that there be a conspiracy or
reciprocal relationship between two or more entities
before liability can be found.”).

Plaintiffs maintain that their New York state
claims should remain until the Supreme Court
rules on Shady Grove Orthopedics Associates, P.A.
y. Allstate Insurance Co., 549 F.3d 137 (2d Cir.
2008), cert. granted, 129 S. Ct. 2160 (2009).

Wisconsin

Wis. Stat. § 133.03 (“Every contract, combination in

the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce is illegal....”).

Defendants argue that Plaintiffs may not recover
on a unilateral monopolization claim under
Wisconsin law. However, the Wisconsin statute
states, “Every person who monopolizes, or
attempts to monopolize, or combines or conspires
with any other person or persons to monopolize
may be fined . . .” Wis. Stat. § 133.03(2)
(emphasis added). Therefore, by its very language,
this statute includes unilateral monopolies. The
Wisconsin Supreme Court held that “[a]lthough
subsection (2) implies government enforcement,
Chapter 133 also authorizes private actions for
persons injured by violations of its prohibitions
[and such] private plaintiffs may seek relief that
includes treble damages and reasonable attorney
fees.” Conley Publ'g Group Ltd. v._ Journal

34



APPENDIX 4: PLAINTIFFS’ CLAIMS SURVIVE IN THOSE STATES THAT PURPORTEDLY
REQUIRE ALLEGATIONS OF FRAUDULENT, DECEPTIVE OR UNCONSCIONABLE COMMERCIAL PRACTICE

State

Position From Defendants’ Appendix B, pp. 6-8

Law Confirming that Plaintiffs May Bring
Claims Under the Following Statutes

Arizona

Holeman v. Neils, 803 F. Supp. 237, 242 (D. Ariz.
1992) (holding that one element of a private cause of
action under the Arizona Consumer Fraud Act is “a
false promise or misrepresentation made in connection
with the sale or advertisement of merchandise and the
hearer’s consequent and proximate injury”) (citing
Dunlap v. Jimmy GMC of Tucson, Inc., 666 P.2d
83, 87 (Ariz. Ct. App. 1983).

“{t]he Arizona Consumer Fraud Act is a broad act
intended to eliminate unlawful practices.... The
Act further provides that it be construed consistent
with the Federal Trade Commission Act....”
Holeman v. Neils, 803 F. Supp. 237, 242 (D. Ariz.
1992). | Monopolistic conduct prohibited by
Sherman Act, such as the conduct alleged in the
SAC, necessarily violates the FTC Act. FTC v.
Motion Picture Adver. Servs. Co., Inc., 344 US.
392, 394-95 (1953).

To the extent that the Arizona Consumer Fraud
Act, ARIZ. REV. STAT. ANN. § 44-1522, ef seq.
(2008), requires a misrepresentation, Plaintiffs
satisfy this element by alleging that GSK’s patent
applications contained statements that were
materially misleading (SAC {J 54-58), fraudulent
(SAC ff 125-142), and that GSK’s patent
infringement suits were a sham (SAC {{ 70-77).
With respect to proximate cause, the SAC alleges
that FDA approval of generic bupropion
hydrochloride was delayed as a result of GSK’s
actions. SAC §{ 85-86, 108-09, 114-17.

20



that generic manufacturers’ ANDAs infringed
GSK’s patent); and SAC ] 63-117 (summarizing
the sham patent infringement suits filed by GSK to
prevent consumers from access to less expensive,
generic versions of bupropion hydrochloride.)

Michigan

Rodriguez v. Berrybrook Farms, Inc., No. K86-161,
1990 U.S. Dist LEXIS 7678, at *39 (W.D. Mich. June
20, 1990) (“[E]ven when a class action is allowed
under [Michigan’s Consumer Protection Act], an
intent to deceive on the part of the defendants must be
shown.”).

The Michigan Supreme Court holds that:

members of a class proceeding
under the Consumer Protection Act
need not individually prove reliance
on the alleged misrepresentations. It
is sufficient if the class can
establish that a reasonable person
would have relied on __ the
representations. Further, a
defendant’s intent to deceive
through a pattern of
misrepresentations can be shown on
a representative basis under the
Consumer Protection Act.

Dix v. American Bankers Life Assurance Co., 415
N.W.2d 206, 209 (Mich. 1987). Plaintiffs’
allegations satisfy this requirement, particularly at
the pleadings stage. See, e.g., SAC JJ 54-58
(describing material misrepresentations made by
GSK to the USPTO that generic manufacturers’
ANDAs infringed GSK’s patent); SAC 4 125-142
(detailing fraudulent statements made by GSK to
USPTO that generic manufacturers’ ANDAs
infringed GSK’s patent); and SAC 4§ 63-117
(summarizing the sham patent infringement suits

26



business of another by false or
misleading representation of fact;

kK OK
(10) Engaging in any other
unconscionable, false, or
deceptive act or practice in business,
commerce, or trade.

See, eg., SAC §§ 54-58 (describing material
misrepresentations made by GSK to the USPTO
that generic manufacturers’ ANDAs infringed
GSK’s patent); SAC §§ 125-142 (detailing
fraudulent statements made by GSK to USPTO
that generic manufacturers’ ANDAs infringed
GSK’s patent); and SAC §{ 63-117 (summarizing
the sham patent infringement suits filed by GSK to
prevent consumers from access to less expensive,
generic versions of bupropion hydrochloride.

California

Freeman v. Time, Inc., 68 F.3d 285, 289 (9th
Cir. 1995) (limiting claims under [California
Unfair Business Practices Act] to those based on
conduct by which ‘members of the public are
likely to be deceived,’ ie. deceptive and
consumer-oriented conduct) (citing Bank of the
West v. Superior Court, 833 P.2d 545, 545
(Cal. 1992)).

Plaintiffs plainly satisfy this requirement. See,
e.g., SAC {7 (“The laws governing approval and
marketing of pharmaceutical products are meant to
balance the competing policy goals of providing
new drug innovators an economic return on their
investments while also ensuring consumers access
to additional and more affordable generics versions
of brand-name drugs.”); and § 8 (“[P]urchasers
have been denied the opportunity to choose
between the Wellbutrin SR brand-name
prescription products and generic versions of these
medications which would have been priced well
below Wellbutrin SR.”).

22



Communs., Inc., 665 N.W. 2d 879, 884 (Wis.
2003).

35



indirect effect on the people of this
state. Therefore that definition
does not, as argued by Estes,
evince a legislative intent to restrict
the application of _ section
407.020.1 to consumer victims
domiciled within Missouri or to
business transacted entirely within
the state’s territorial borders.

Id. at 800 (emphasis added). As a result, Plaintiffs
here have pled the requisite conduct under the
Missouri statute by alleging nationwide sales of
generic Wellbutrin SR, which has an effect on
people in that state. See Section III.B.3. of End-
Payor Plaintiffs’ Brief in Opposition to
Defendants’ Motion to Dismiss.

New York

Goshen v. Mut. Life Ins. Co., 774 N.E.2d 1190,
1195-96 (N.Y. 2002) (holding that “to qualify as a
prohibited act under the statute, the deception of a
consumer must occur in New York” and that “[t]o
apply the statute to out- of-state transactions in the
case before us would lead to an unwarranted
expansive reading of the statute, contrary to
legislative intent, and potentially leading to the
nationwide, if not global application of General
Business Law§ 349”); Mayfield v. Gen. Elec.
Capital Corp., No. 97-2786, 1999 WL 182586, at
*10 (S.D.N.Y. Mar. 31, 1999) (“To state a claim
under the Consumer Protection Act, Plaintiff must
allege deceptive acts or practices that occurred
within New York State.”).

Plaintiffs maintain that their New York state
claims should remain until the Supreme Court
tules on Shady Grove Orthopedics Associates, P.A.
v. Allstate Insurance Co., 549 F.3d 137 (2d Cir.
2008), cert. granted, 129 S. Ct. 2160 (2009).

17


APPENDIX 3: PLAINTIFFS’ ADEQUATELY PLEAD INTRASTATE COMMERCE

UNDER STATE ANTITRUST AND CONSUMER PROTECTION LAWS

State

Position From Defendants’ Appendix B, pp. 3-5

Law Confirming that Plaintiffs May Bring
Claims Under the Following Statutes

State Antitrust Laws

California

Amarel v. Connell, 248 Cal. Rptr. 276, 284 (Cal. Ct.
App. 1988) (finding that the Cartwright Act requires
that the “anticompetitive conduct in question has a
direct, substantial and reasonably foreseeable effect
within the state”).

The court in Amarel v. Connell held that “[s]o long
as the anticompetitive conduct in question has a
direct, substantial and reasonably foreseeable
effect within the state, prosecution of the conduct
under state law is not precluded.” As noted in
Younger v. Jensen, 26 Cal. 3d 397,405 (1980),
“[njeither the Sherman Act nor the federal
prohibition of undue burdens on_ interstate
commerce” prevent the Cartwright Act “from
reaching transactions that have interstate aspects
but significantly affect state interests.” Plaintiffs
have sufficiently alleged that GSK’s activities have
a direct, substantial and reasonably foreseeable
effect within California by illegally delaying entry
of generic Wellbutrin SR into the California
marketplace. See Section III.B.3. of End-Payor
Plaintiffs’ Brief in Opposition to Defendants’
Motion to Dismiss.

Massachusetts

Mass. Gen. Laws ch. 93 § 3 (“Nothing in the
Massachusetts Antitrust Act .. . shall apply to any
course of conduct, pattern of activity, or activities

Plaintiffs do not assert claims under the
Massachusetts antitrust statute; they assert claims
only under the consumer protection law. As a



infringed GSK’s patent); and SAC 4§ 63-117
(summarizing the sham patent infringement suits
filed by GSK to prevent consumers from access to
less expensive, generic versions of Wellbutrin SR.

32



Heating & Air Conditioning, Inc., 199 S.W.3d
228, 233 (Mo. Ct. App. 2006) (“A practice is
‘unfair’ if it: ‘(1) offends any public policy as it
has been established by the Constitution, statutes
or common law of this state, or by the Federal
Trade Commission, or its interpretive decisions or
(2) is unethical, oppressive, or unscrupulous; and
(3) presents a risk of, or causes, substantial injury
to consumers.””).

See also Mattingly v. Medtronic, Inc., 466 F. Supp.
2d 1170, 1173 (E.D. Mo. 2006) (“The [MMPA]
was created to supplement the definition of
common law fraud ... It attempts to preserve
fundamental honesty, fair play and right dealings
in public transactions To establish ‘unlawful
practice’ it is not necessary to prove the elements
of common law fraud.”) (citing Clement v. St.
Charles Nissan, Inc., 103 S.W.3d 898, 899-900
(Mo. Ct. App. 2003) (additional citation omitted).
Furthermore, “[a]ctual communication is not
necessary to state a claim for unfair practices under
the M[MJPA.” Mattingly, 466 F. Supp. 2d at
1173.

Plaintiffs here plainly make out a claim under the
MMPA. The SAC details Defendants’ repeated
misleading statements to the USPTO. See, e.g.,
SAC {| 54-58 (describing —smaterial
misrepresentations made by GSK to the USPTO
that generic manufacturers’ ANDAs infringed
GSK’s patent); SAC §§ 125-142 (detailing
fraudulent statements made by GSK to USPTO

29



APPENDIX 2: PLAINTIFFS CAN BRING CLAIMS AS “CONSUMERS” OR AS PURCHASERS OF GOODS

PRIMARILY FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES

State Position From Defendant’s Appendix B, p. 2 Law Confirming that Plaintiffs May Bring
Claims Under the Following Statutes
North Carolina Food Lion, Inc. v. Capital Cities/ABC, Inc. 194F.3d|In North Carolina, “any person, firm, or
505, 520 (4th Cir. 1999) (noting that, under the North | corporation” may sue as a consumer under the
Carolina Unfair and Deceptive Trade Practices Act, | state’s consumer protection statute. N.C. GEN.
“one business is permitted to assert a UTPA claim | STAT. §75-16 (2009).
against another business only when the businesses are
competitors (or potential competitors) or are engaged | In Food Lion, the Fourth Circuit made clear that
in commercial dealing with one another”). “businesses are sometimes allowed to assert UTPA
claims against other businesses because unfair
trade practices can affect the consumer as well.”
Food Lion, Inc. v. Capital Cities/ABC, Inc., 194
F.3d 505, 519-20 (4th Cir. 1999). The Court
found against Plaintiff in Food Lion because the
deception of defendant in that case “did not harm
the consuming public.” | Where Defendants’
conduct delayed entry of generic versions of
Wellbutrin SR consumers are affected.
Oklahoma Murray v. D & J Motor Co., 958 P.2d 823, 832|In Oklahoma, the term “consumer” is not

(Okla. Civ. App. 1998) (holding that a plaintiff
cannot sue under the Oklahoma Consumer Protection
Act unless the plaintiff can show that she “is a
consumer and a consumer transaction is involved”).

specifically defined, but a “consumer transaction”
is defined as one involving “the advertising,
offering for sale or purchase, sale, purchase, or
distribution of any services or any property,
tangible or intangible, real, personal, or mixed, or



policy goals of providing new drug innovators an
economic return on their investments while also
ensuring consumers access to additional and more
affordable generics versions of brand-name
drugs.”); and { 8 (“[PJurchasers have been denied
the opportunity to choose between the Wellbutrin
SR brand-name prescription products and generic
versions of these medications which would have
been priced well below Wellbutrin SR.”).



North Carolina

Lawrence v. UMLIC-Five Corp., No. 06-20643,
2007 WL 2570256, at *7 (N.C. Super. June 18,
2007) (dismissing claim by foreign plaintiff against
resident defendant because court was not persuaded that
“that the Defendants’ alleged acts have had a substantial
in-state effect on North Carolina trade or commerce”).

The North Carolina consumer protection statute
does not require that the illegal conduct take place
within the state but only that the conduct have a
substantial effect in North Carolina. See Merck &
Co. v. Lyon, 941 F. Supp. 1443, 1463 (M.D.N.C.
1996) (citing The In Porters, S.A. v. Hanes
Printables, Inc. 663 F. Supp. 494, 501-502
(M.D.N.C. 1987)).

A UDTPA claim requires three elements: “(1)
defendants committed an unfair or deceptive act or
practice, (2) in or affecting commerce and (3)
plaintiff was injured as a result.” Phelps-Dickson
Builders, L.L.C. v. Amerimann Partners, 172 N.C.
App. 427, 439 (N.C. Ct. App. 2005). Here,
Plaintiffs have adequately alleged an unfair or
deceptive act or practice (see, e.g., SAC 4] 54-58)
which affected commerce (see, e.g., SAC §f 163-
165) and Plaintiffs were injured as a result see, e.g.
SAC {fj 85-86).

Further, Defendants’ reliance upon Lawrence v.
UMLIC-Five Corp. is misplaced. In that case, the
court was faced with foreign plaintiffs alleging
violations of North Carolina’s UDTPA for alleged
foreign injuries. Lawrence v. UMLIC-Five Corp.,
No. 06-CV-20643, 2007 WL 2570256, at *6 (N.C.
Super. June 18, 2007). Unlike the plaintiffs in
Lawrence which alleged purely foreign injuries,
Plaintiffs here allege injuries that occurred within
North Carolina as a result of the illegally delayed
entry of generic Wellbutrin SR into the North

18



support a claim under [] the Unfair Trade Practice
and Consumer Protection Act [], a plaintiff must
establish that he or she is a consumer, and that
defendant is committing or has committed an unfair
or deceptive act while engaged in a business of trade
or commerce.”).

vendor/consumer relationship before a cause of
action may be maintained ... [r]ather, the section is
broadly drafted to include “any person who
purchases or leases goods primarily for personal,
family or household purposes.” The Court further
noted that “Nowhere does the section state that
only the first purchaser of a good has a cause of
action.” Id.



investments while also ensuring consumers access
to additional and more affordable generics versions
of brand-name drugs.”)-8, 157-162.

Idaho

State ex rel. Wasden v. Daicel Chem. Indus., Ltd.,
106 P.3d 428, 435 (Idaho 2005) (holding that the
ICPA cannot be construed to cover price fixing
because statute only proscribes unconscionable
“sales conduct’ that is directed at the consumer’); see
also In re Dynamic Random Access Memory
(DRAM) Antitrust Litig, 516 F.Supp.2d 1072,
1110-11 (N.D. Cal. 2007) (following Wasden to hold
that plaintiffs could not state a claim for price- fixing
under Idaho's Unfair Trade Practices Act).

In DRAM, 516 F. Supp. 2d at 1110, relied on by
Defendants, the court found Wasden to be
dispositive, but only for the proposition that
indirect purchasers cannot bring price fixing claims
under the ICPA:

The Idaho Supreme Court’s finding in this regard
was explicit: ‘[p]rice-fixing is not listed in § 48-
603 as conduct that constitutes either an unfair
method of competition or an unfair or deceptive
act or practice.” In setting forth its reasoning, the
Wasden court specifically noted that the legislative
intent behind the [I]CPA required the court to give
due consideration and weight to federal
interpretation of the FTCA, but held that the
[IJCPA was distinct from the FTCA in that it
specifically “defines what constitutes an unfair
method of competition,” and excludes price-fixing
from that definition.

Plaintiffs’ SAC does not allege price-fixing, but
instead describes, in great detail, Defendants’
unlawful and deceptive scheme to monopolize the
market for Wellbutrin SR and delay generic
competition. Defendants’ conduct easily meets a
number of the specifically enumerated “unfair
methods and practices” set out in IDAHO CODE
ANN. § 48-603 (2008):

24



IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHEET METAL WORKERS LOCAL 441
HEALTH & WELFARE PLAN, et al.,

Plaintiffs, : Judge Lawrence F. Stengel

Civil Action No. 04-cv-5898

Vv.
GLAXOSMITHKLINE, PLC, et al.,

Defendants

APPENDICES TO END-PAYOR PLAINTIFFS’ BRIEF IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS THE CONSOLIDATED SECOND AMENDED
END-PAYOR CLASS ACTION COMPLAINT


intrastate commerce in that their conduct affects
the commerce of Michigan by illegally delaying
entry of generic Wellbutrin SR into the Michigan
marketplace. See Section III.B.3. of End-Payor
Plaintiffs’ Brief in Opposition to Defendants’
Motion to Dismiss.

Minnesota

Minn. Stat. Ann. § 325D.54 (antitrust statute applies
only to (a) any contract, combination, or conspiracy
when any part thereof was created, formed, or entered
into in this state; and (b) any contract, combination, or
conspiracy, wherever created, formed, or entered
into; any establishment, maintenance, or use of
monopoly power; and any attempt to establish,
maintain, or use monopoly power; whenever any of
the foregoing affects the trade or commerce of this
state); City of St. Paul v. FMC Corp., No. 3-89-0466,
1990 WL 265171, at *8 (D. Minn. Feb. 27, 1990)
(interpreting Minnesota antitrust statute to permit
recovery only by ‘purchasers within Minnesota”).

Plaintiffs have sufficiently alleged that GSK’s
conduct affects the trade or commerce of
Minnesota by illegally delaying entry of generic
Wellbutrin SR into the Minnesota marketplace.
See Section III.B.3. of End-Payor Plaintiffs’ Brief
in Opposition to Defendants’ Motion to Dismiss.

Further, Defendants’ reliance upon City of St. Paul
v. FMC Corp. for the proposition that recovery is
limited to “purchasers within Minnesota” is
without merit. Here, Plaintiffs do not seek to
apply Minnesota law to proposed class members
who suffered no injury in Minnesota.

Nevada

Nev. Rev. Stat. 598A.060(1) (“Every activity
enumerated in this subsection constitutes a contract,
combination or conspiracy in restraint of trade, and it
is unlawful to conduct any part of any such activity
in this State... .”).

Plaintiffs have sufficiently alleged _that
Defendants’ attempt to monopolize and/or
monopolization of the market for generic
Wellbutrin SR occurred within the state of Nevada.
See Section III.B.3. of End-Payor Plaintiffs’ Brief
in Opposition to Defendants’ Motion to Dismiss.

New York

N.Y. Gen. Bus. Law § 340 (“A monopoly in the
conduct of any business, trade or commerce or in the

Plaintiffs maintain that their New York state
claims should remain until the Supreme Court



unless they occur and have their competitive impact
primarily and predominantly within the
commonwealth and at most, only incidentally
outside New England. . . .”); see also Ciardi v.
Hoffman-LaRoche, Ltd., No. 99-3244, 2000 WL
33162197, at *3 (Mass. Super. Ct. Sept. 29, 2000)
(noting that plaintiffs could not bring a claim under
the Massachusetts antitrust statute because the
conduct complained of did not occur in
Massachusetts), aff'd, 762 N.E.2d 303 (Mass. 2002).

result, Defendants’ argument that Plaintiffs’
Massachusetts state antitrust claim should be
dismissed is moot.

Michigan

Aurora Cable Commc'ns, Inc. v. Jones Intercable,
Inc., 720 F. Supp. 600, 603 (W.D. Mich. 1989)
(“[Michigan Antirust Reform Act] parallels the
Sherman Antitrust Act as it applies to intrastate
conduct”); Peoples Say. Bank v. Stoddard, 102
N.W.2d 777, 796 (Mich. 1960) (permitting
application of state antitrust law in cases where
alleged monopoly is “predominantly local”).

Defendants’ reliance upon Peoples Savings Bank is
misplaced, as the Supreme Court of Michigan
merely noted that state antitrust laws may be
applied where the alleged monopoly is
“predominately local.” Peoples Savings Bank v.
Stoddard, 102 N.W.2d 777, 796 (Mich. 1960).
The Supreme Court of Michigan’s comments were
permissive, not restrictive. “[N]either federal
antitrust legislation nor the Commerce Clause
precludes application of [Michigan] antitrust laws
to all interstate commerce.” Sherwood v.
Microsoft Corp., 2003 Tenn. App. LEXIS 539, at
*22-23 (Tenn. Ct. App. July 31, 2003) (citing
Peoples Savings Bank, 102 N.W.2d at 796).

Additionally, GSK’s citation to Aurora Cable is
misplaced. That case merely states that the
Michigan Antitrust Reform Act parallels the
Sherman Antitrust Act as it applies to intrastate
commerce. Plaintiffs here have sufficiently
alleged that Defendants’ activities concern

10


statute, the Complaint must allege some additional
deception or misrepresentation.”).

Laborers' Local 214 Pension Fund vy. Marine
Midland Bank, N.A., 85 N.Y.2d 20, 647 N.E.2d
741, 744, 623 N.Y.S.2d 529 (N.Y. 1995)). GSK’s
actions are clearly “consumer-oriented” in that
they were designed to prevent the consuming
public’s access to a less expensive form of
Wellbutrin SR.

Oklahoma Major v. Microsoft Corp. 60 P.3d 511, 517 (Okla. | See Plaintiffs’ Appendix 1 at pp 4-5.
Civ. App. 2002) (“[T]he [Oklahoma] CPA should not
extend to anticompetitive conduct... “).
Pennsylvania 73 Pa. Stat. Ann. § 201-2(4); In re New Motor | Pursuant to 73 Pa. Stat. Ann. § 201-2(4) the

Vehicles Canadian Export Antitrust Litig., 350 F.
Supp. 2d 160, 200-01 (D. Me. 2004) (holding that
Pennsylvania consumer protection statute bars only
activities enumerated at § 201-2(4) and those
requiring “fraud or deception”); see also Yeager’s
Fuel, Inc. v. Pa. Power & Light Co., 953 F. Supp.
617, 668 (E.D. Pa. 1997) (finding antitrust claims are
not based on the type of “fraudulent, disparaging
conduct that the [Pennsylvania consumer
protection statute] aims to protect”).

following are considered an unfair or deceptive act
or practice:

(viii) Disparaging the goods, services
or business of another by false or
misleading representation of fact

(xxi) Engaging in any other fraudulent
conduct which creates a likelihood of
confusion or of misunderstanding

Plaintiffs have alleged such conduct by detailing
Defendants’ repeated misleading statements to the
USPTO. See, e.g., SAC {fj 54-58 (describing
material misrepresentations made by GSK to the
USPTO that generic manufacturers’ ANDAs
infringed GSK’s patent); SAC ff 125-142
(detailing fraudulent statements made by GSK to
USPTO that generic manufacturers’ ANDAs

31



that generic manufacturers’ ANDAs _ infringed
GSK’s patent); and SAC § 63-117 (summarizing
the sham patent infringement suits filed by GSK to
prevent consumers from access to less expensive,
generic versions of bupropion hydrochloride.

Nevada

Nev. Rev. Stat. § 41.600 (2) (enumerating exhaustive
list of unlawful acts for purposes of recovery that are
all “deceptive trade practices” directed at consumers
or “consumer fraud”).

Pursuant to Nev. Rev. Stat. Ann. § 598.0915 (8)
one who “[d]isparages the goods, services or
business of another person by false or misleading
representation of fact” has engaged in a deceptive
trade practice. Plaintiffs have alleged this conduct
by detailing Defendants’ repeated misleading
statements to the USPTO. See, e.g., SAC §J 54-58
(describing material misrepresentations made by
GSK to the USPTO that generic manufacturers’
ANDAs infringed GSK’s patent); SAC {J 125-142
(detailing fraudulent statements made by GSK to
USPTO that generic manufacturers’ ANDAs
infringed GSK’s patent); and SAC §§ 63-117
(summarizing the sham patent infringement suits
filed by GSK to prevent consumers from access to
less expensive, generic versions of Wellbutrin SR.

New York

Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.
2000) (requiring proof of a deceptive act directed at
consumers as an essential element of a claim under
New York’s consumer protection act); see also In re
Automotive Refinishing Paint Antitrust Litig., 515 F.
Supp. 2d 544, 554 (E.D. Pa. 2007) (“[A]nticompetitive
conduct alone does not constitute deceptive conduct
under § 349 and [] to come within the scope of the

“Because ‘section 349 is directed at wrongs

against the consuming public ... plaintiffs
claiming the benefit of section 349 -- whether
individuals or [other entities] -- must charge

conduct of the defendant that is consumer-
oriented.’” Crippen v. Town of Hempstead, No.
07-CV-3478, 2009 U.S. Dist. LEXIS 24820, at
*46 (E.D.N.Y. Mar. 25, 2009) (quoting Oswego

30



any other article, commodity, or thing of value
wherever located, for purposes that are personal,
household, or business oriented.” OKLA. STAT.
Tit. 15, §752(2) (2009). The language of the
statute thus gives no reason to assume that entities
like Plaintiffs may not constitute consumers.

Pennsylvania

73 Pa. Const. Stat. § 201-9.2 (providing a private
cause of action only to persons that “purchase[] or
lease[] goods or services primarily for personal,
family or household purposes”).

The Pennsylvania Unfair Trade Practices and
Consumer Protection Law (“PA UTPCPL”)
grants standing to persons “who purchase[] or
lease[] goods or services primarily for personal,
family or household purposes.” 73 Pa.C.S § 201-
9.2. The PA UTPCPL expressly defines “person”
to include “corporations, trusts, partnerships,
incorporated or unincorporated associations, and
any other legal entities.” 73 Pa.C.S. § 201-2(2).
In Com. v. TAP Pharm. Products, Inc., 885 A.2d
1127, 1142-43 (Pa. Commw. 2005), the court
expressly held that the Pennsylvania Employees
Benefit Trust Fund (“PEBTF”) was a “person”
under the PA UTPCPL, and that the drugs it
purchased for its beneficiaries were “ultimately
used for a personal, family, or household
purpose” as required by the statute. Id.

Rhode Island

RI. Gen. Laws § 6-13.1-5.2 (limiting a private cause
of action under Rhode Island’s Consumer Protection
Act to “[a]ny person who purchases or leases goods or
services primarily for personal, family, or household
purposes”); see also Kelley v. Cowesett Hills
Assocs., 768 A.2d 425, 431 (RI. 2001) (“To

The plain language of R.I. GEN. LAWS §6-13.1-5.2
(2009) grants standing to “any person.” In Chen v.
Subaru of Am., No. WC 2006-0132, 2008 R.
Super. LEXIS 103, at *10 (R.L. Super. Ct. Aug. 25,
2008), the Court held “[NJothing in the plain
language of that section requires a_ direct



Arkansas

In re TFT-LCD (Flat Panel) Antitrust Litig., 586 F.
Supp. 2d 1109, 1125 (ND. Cal. 2008) (dismissing
claims under Arkansas consumer protection act based
on antitrust allegations because Court was “unwilling
to expansively interpret statute” to include such
conduct) (citing In re Graphics Processing Units
Antitrust Litig., 527 F. Supp. 2d 1011, 1029-30
(N.D. Cal. 2007) (“GPU”) (dismissing claims
under Arkansas consumer protection statute
proscribing deceptive or unconscionable conduct
because the statute requires “something more than
merely alleging that the price of a product was
unfairly high” and plaintiffs had not “pleaded the kind
of grossly unequal bargaining power prohibited by
these statutes”).

The ADPTA prohibits any unconscionable trade
conduct and “unconscionable” is to be given a
liberal construction. Jn re Afiermarket Filters
Antitrust Litig., No. 08-CV-4883, 2009 U.S. Dist.
LEXIS 104114, at *35 (N.D. Ill. Nov. 5, 2009)
(citing State Ex. Rel. Bryant v. R & A Inv. Co., 336
Ark. 289, 985 S.W.2d 299 (1999)). The court held
that price-fixing was cognizable under the
Arkansas Code, despite the decision in GPU. Id.
(citing In re Chocolate Confectionary Antitrust
Litig., 602 F. Supp. 2d 538, 583 (M.D. Pa. 2009).

Nevertheless, Plaintiffs’ SAC does not allege
price-fixing, but instead describes, in great detail,
Defendants’ unlawful and deceptive scheme to
monopolize the market for Wellbutrin SR and
delay generic competition. Defendants’ conduct
easily meets a number of the specifically
enumerated “deceptive and unconscionable trade
practices” set out in ARK. CODE ANN. § 4-88-107
(2008):

(1) Knowingly making a false
representation as to the characteristics,
ingredients, uses, benefits, alterations,
source, sponsorship, approval, or
certification of goods or services or as
to whether goods are original or new or
of a particular standard, quality, grade,
style, or model;

(2) Disparaging the goods, services, or

21



person who shall be injured in his business or
property by reason of anything forbidden in this article
may bring an action therefore in the appropriate
superior court of this state and shall recover the actual
damages sustained and the costs of such action,
including a reasonable attorney’s fee.”)

77278, at *5 (N.D. Ga. Aug. 28, 2009), the court
denied defendants’ motion to dismiss an unjust
enrichment claim and recognized it as a stand-
alone legal claim.

Louisiana

La. Rev. Stat. Ann. § 51:137 (“Any person who is
injured in his business or property by any person by
reason of any act or thing forbidden by this Part may
sue in any court of competent jurisdiction and shall
recover threefold the damages sustained by him, the
cost of suit, and a reasonable attorney’s fee.”)

The Louisiana Civil Code codifies unjust
enrichment as an independent cause of action, with
the following elements: (1) there must be an
enrichment, (2) there must be an impoverishment,
(3) there must be a connection between the
enrichment and resulting impoverishment, (4)
there must be an absence of “justification” or
“cause” for the enrichment and impoverishment,
and (5) there must be no other remedy at law
available to the plaintiff. La. Civ. Code 2298
(2009); Finova Capital Corp. v. IT Corp., 774 So.
2d 1129, 1132 (La. App. 2 Cir. Dec. 15, 2000)
(citing same).

Massachusetts

Mass. Gen. Laws Ch. 93, § 12 (“Any person
who shall be injured in his business or property
by reason of a violation of the provisions of this
chapter may sue therefore and recover the actual
damages sustained, together with the costs of suit,
including reasonable attorney fees. If the court
finds that the violation was engaged in with
malicious intent to injure said person, the court
may award up to three times the amount of actual
damages sustained, together with the costs of

Plaintiffs assert claims under the Massachusetts
Consumer Protection Act, chapter 93A, not the
Antitrust Act, chapter 93. Indirect purchasers can
maintain unjust enrichment claims alongside
claims under Massachusetts’ consumer protection
statute. In re Flonase Antitrust Litig., No. 08-CV-
3301, 2010 U.S. Dist. LEXIS 4707 (E.D. Pa. Jan.
21, 2010) (plaintiffs validly asserted unjust
enrichment claim and granted leave to file demand
letter to satisfy ch. 93A); Health Care Serv. Corp.



suit, including reasonable attorneys’ fees. Any
person may sue for injunctive relief to prevent
threatened damage to his business or property
under the same conditions and principles as
injunctive relief is granted by courts of equity.”)

v. Mylan Labs, Inc. (In re Lorazepam &
Clorasepate Antitrust Litig.), 295 F. Supp. 2d 30,
47, 50-51 (D.D.C. 2003) (third party payor
plaintiffs could maintain claim under ch. 93A as
well as unjust enrichment claim against drug
manufacturer).

Minnesota

Minn. Stat. § 325D.57 (“Any person, any
governmental body, or the state of Minnesota or
any of its subdivisions or agencies, injured
directly or indirectly by a violation of sections
325D.49 to 325D.66, shall recover three times the
actual damages sustained, together with costs and
disbursements, including reasonable attorneys’
fees. In any subsequent action arising from the
same conduct, the court may take any steps
necessary to avoid duplicative recovery against a
defendant.”)

Third party payors have a general right to sue in
antitrust under Section 325D.57 of the Minnesota
Antitrust Law and can also state a claim for unjust
enrichment; though the court should avoid
duplicative recovery. Jn re Lorazepam, 295 F.
Supp. 2d at 34-36, 50-51; Gordon v. Microsoft
Corp., No. 00-CV-5994, 2001 U.S. Dist. LEXIS
26360, at *4-5, *39-40 (D. Minn. Mar. 30, 2001)
(certifying class of indirect purchasers under
Minnesota Antitrust Law).

Nevada

Nev. Rev. Stat. § 598A.210(2) (“Any person
injured or damaged directly or indirectly in his
business or property by reason of a violation of
the provisions of this chapter may institute a civil
action and shall recover treble damages, together
with reasonable attorney fees and costs.”).

GSK does not cite any statutory language
abrogating Plaintiffs’ | equity-based unjust
enrichment claims. Courts have rejected
GSK’s argument that Plaintiffs cannot maintain a
claim for unjust enrichment in states that allow
indirect purchasers to maintain claims for damages
under either their antitrust or consumer protection
statutes. See K-Dur Antitrust Litig., 338 F. Supp.
2d at 544. Plaintiffs may assert unjust enrichment
claims as alternative theories of recovery. Jd. To
argue otherwise attacks the core principle that
plaintiffs are permitted to plead alternative theories

39



filed by GSK to prevent consumers from access to
less expensive, generic versions of bupropion
hydrochloride.

Minnesota

Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 474
(Minn. 1999) (“To sustain a claim for consumer
fraud, a plaintiff must demonstrate that the defendant
made a false promise or misrepresentation with the
intent that others rely thereon. . . .”); Arrowhead
Bluffs, Inc. v. Blackburn, Nos. C8-03-301, et al.,
2003 WL 22778336, at *2 (Minn. Ct. App. Nov. 25,
2003) (“[T]hese claims require that the defendant
make a false statement with the intent that the
plaintiff rely on it”); In re New Motor Vehicles
Canadian Export Antitrust Litig., 350 F. Supp. 2d
160, 189-90 (D. Me. 2004) (dismissing claims under
Minnesota’s Uniform Deceptive Trade Practices
Act for failure to allege false statement).

When not conveniently truncated, the very
language quoted by GSK makes clear that
Plaintiffs’ allegations satisfy the pleading
requirements under Minnesota law. Alsides v.
Brown Inst., Ltd., 592 N.W.2d 468, 474 (Minn. Ct.
App. 1999) (“To sustain a claim for consumer
fraud, a plaintiff must demonstrate that the
defendant made a _ false promise or
misrepresentation with the intent that others rely
thereon regardless of whether any person has, in
fact, been misled, deceived, or damaged.”)
(emphasis added).

The SAC details Defendants’ repeated misleading
statements to the USPTO made with the
presumption and intent that other would rely. See,
eg. SAC ff 54-58 (describing material
misrepresentations made by GSK to the USPTO
that generic manufacturers’ ANDAs infringed
GSK’s patent); SAC § 125-142 (detailing
fraudulent statements made by GSK to USPTO
that generic manufacturers’ ANDAs infringed
GSK’s patent); and SAC 4§ 63-117 (summarizing
the sham patent infringement suits filed by GSK to
prevent consumers from access to less expensive,
generic versions of bupropion hydrochloride.

27



(holding that “J/linois Brick is controlling and
applicable to plaintiff's claims under the Missouri
Antitrust Laws or the Missouri Merchandising
Practices Act,” thus “[iJt is clear that plaintiff, as an
indirect purchaser, lacks standing to sue”); see also
Johnson v. Microsoft Corp., 802 N.E.2d 712, 716
(Ohio Ct. App. 2003) (citing /reland for Missouri
bar on indirect purchaser standing under MMPA).

does not preclude claims by indirect purchasers.
In Gibbons v. Nuckolls, Inc., 216 S.W. 3d 667
(Mo. 2007), the Missouri Supreme Court held the
“any person” language of the MMPA does not
require a direct contractual relationship and,
therefore, includes indirect purchasers:

The foregoing statutory framework permits
an aggrieved party to seek relief from any
“person,” including a corporation such as
Nuckolls. The statute’s plain language does
not contemplate a direct contractual
relationship between plaintiff and defendant,
and Missouri courts have not imposed such a
requirement through statutory construction.

RK

Nuckolls undertakes an exercise in strained
statutory construction and urges a limited
application ..., arguing that the MPA accords
broader authority to the attorney general,
while private plaintiffs can only sue a direct
seller. This Court declines to impose such a
significant limitation on Missouri consumers.

Relevant precedent consistently reinforces
the plain language and spirit of the statute to
further the ultimate objective of consumer
protection, regardless of whether the suit is
filed by the state or by an individual.

Id. at 670. In rejecting a limited interpretation
similar to the one suggested by the Defendants, the



Export Antitrust Litig., 350 F. Supp. 2d 160, 170-
75 (D. Me. 2004) (discussing West Virginia
antitrust claims with respect to intrastate impact
issue and finding that application was appropriate
in case involving international automobile antitrust
scheme, and citing an unpublished West Virginia
opinion ruling that “the Antitrust Act prohibits a
conspiracy that restrains West Virginia trade or
commerce, regardless of the locus of the
conspiracy.”) (quoting Buscher v. Abbott Labs.,
No. 94-C-755, at 2 (W. Va. Cir. Ct. Jan. 27,
1994)(unreported)).

Wisconsin

Olstad v. Microsoft Corp. 700 N.W.2d 139, 141
(Wis. 2005) (holding that a plaintiff under
Wisconsin’s antitrust act must allege that “(1)
actionable conduct, such as the formation of a
combination or conspiracy, occurred within
[Wisconsin], even if its effects are felt primarily
outside Wisconsin; or (2) the conduct complained of
‘substantially affects’ the people of Wisconsin and
has impacts in [Wisconsin]”).

The Olstad court also noted that “[t]he public
interest and welfare of the people of Wisconsin are
substantially affected if prices of a product are
fixed or supplies thereof are restricted as the result
of an illegal combination or conspiracy. The
people of Wisconsin are entitled to the advantages
that flow from free competition . . . .” Olstad, 700
N.W.2d at 146. Here, Plaintiffs have alleged that
GSK’s conduct prevented the entry of generic
Wellbutrin SR into the Wisconsin marketplace to
the detriment of consumers. See, eg. J 8
(“[P]urchasers have been denied the opportunity to
choose between the Wellbutrin SR brand-name
prescription products and generic versions of these
medications which would have been priced well
below Wellbutrin SR.”). Plaintiffs have also
claimed the requisite intrastate conduct. See
Section III.B.3. of End-Payor Plaintiffs’ Brief in
Opposition to Defendants’ Motion to Dismiss.

14



Act] are for the protection of in-state consumers” and
that the statutes “prohibit unfair, deceptive, and/or
unconscionable practices which have transpired within
the territorial boundaries of this state”) (citations
omitted).

New Piper Aircraft is misplaced because the
plaintiff there argued that FDUTPA could “apply
not only to his claim but also [to] the nationwide
claims of all putative class members, irrespective
of where they lived and suffered alleged
diminution in value injury.” Jd at *25-26.
“Unlike the named plaintiff in New Piper, named
[P]laintiffs here do not seek to apply Florida law to
plaintiffs who suffered no injury in Florida.” /d. at
*26 (citing In re Wellbutrin XL Antitrust Litig.,
260 F.R.D. 143, 162 (E.D. Pa. 2009)). As such,
Plaintiffs allege some injury in Florida which is
sufficient to statea FDUTPA claim. See id. at 27.

Missouri

Mo. Rev. Stat. § 407.020 (limiting Missouri
Merchandising Practices Act claims to those based
on conduct “in or from the state of Missouri”); State
ex rel Nixon v. Estes, 108 S.W.3d 795, 800 (Mo. Ct.
App. 2003) (noting that Missouri consumer
protection statute regulates only “trade or commerce
[that] originate or occur ‘in or from the state of
Missouri”).

Defendants’ argument is inaccurate. First, the
Missouri Merchandising Practices Act, Mo. REV.
STAT. §407.010 (2009), defines “trade” and
“commerce” as “any trade or commerce directly or
indirectly affecting the people of this state.”

Second, Defendant’s description of the holding in
State ex rel Nixon v. Estes, 108 S.W.3d 795 (Mo.
Ct. App. 2003), is misstated. The court stated that:

In our view, the definition of trade
or commerce in the second sentence
of section 407.010(7) simply makes
clear the intent of the General
Assembly that the terms should be
understood to include, but not
necessarily be limited to, economic
activity which has a direct or

16



State Consumer Protection Laws

Idaho

Inre Static Random Access Memory (SRAM) Antitrust
Litig,, 580 F.Supp.2d 896, 907 (N.D. Cal. 2008)
(dismissing indirect purchaser class action in light of
holding of Idaho Supreme Court that “indirect
purchasers may not bring suit under the Idaho
Consumer Protection Act”).

The Idaho Supreme Court’s holding in Wasden v.
Daicel Chem. Indus., Ltd., provides that antitrust
price-fixing claims are not covered by the Idaho
Consumer Protection Act. 106 P.3d 428, 430
(Idaho 2005); SRAM, 580 F. Supp. 2d at 907
(citing Wasden). However, unlike Wasden and In
re SRAM, Plaintiffs’ Idaho CPA claim survive
because they have alleged claims vastly different
from price fixing allegations. Plaintiffs’ claims
thus fall within the enumerated acts in the Idaho
Consumer Protection Act, IDAHO CODE ANN. § 48-
603 (2008). See § 48-603(17) (it is unlawful to
engage “in any act or practice which is otherwise
misleading, false, or deceptive to the consumer.”);
§ 48-603 (18) (prohibiting “[e]ngaging in any
unconscionable method, act or practice in the
conduct of trade or commerce,” which includes
“sales conduct or pattern of sales conduct would
outrage or offend the public conscience,” as
provided in 48-603(C)(2)(d)). The concerns
expressed by the Wasden court, which found that
the activities enumerated in ICPA, did not include
price fixing do not apply and do not bar Plaintiffs’
claims.

Missouri

Ireland v. Microsoft Corp., No. 00-201515, 2001
WL 1868946, at *1 (Mo. Cir. Ct. Jan. 24, 2001)

The Missouri Merchandising Practices Act, Mo.
REV. STAT. § 407.010 et seq. (2009) (“MMPA”)



APPENDIX 7: PLAINTIFFS CAN MAINTAIN UNJUST ENRICHMENT CLAIMS

AS AN EQUITABLE REMEDY

State

Position From Defendants’
Appendix B, pp. 12-14

Law Confirming that Plaintiffs May Bring
Claims Under the Following Statutes

Arkansas

Ark. Code Ann. § 4-75-315 (enumerating only
actions by Attorney General as remedy for violations
of statute, such that neither legal nor equitable
remedy is available through private right of action).

Unjust enrichment is its own cause of action under
Arkansas law. Plaintiffs are allowed to pursue it
separate and apart from any tort or statutory
claims. See United States v. St. Joseph's Reg'l
Health Ctr., 240 F. Supp. 2d 882, 889 (W.D. Ark.
2002) (citations omitted) (confirming that unjust
enrichment is not a remedy, but a separate cause of
action).

Colorado

Colo. Rev. Stat. § 6-4-114 (“Any person injured in
its business or property by reason of any violation of
this article may sue therefore and, if successful, shall
recover any actual damages sustained by such person.
If the violation alleged and proved is determined by
the court to be a per se violation of this article, such
person may recover three times the actual damages
sustained by such person.”)

Colorado recognizes unjust enrichment to be a
stand-alone cause of action that can be brought on
its own or alongside other statutory and tort
claims. Robinson v. Colo. State Lottery Div., 179
P.3d 998, 1007 (Colo. 2008) (internal citations
omitted) (“The scope of the remedy is broad,
cutting across both contract and tort law, with its
application guided by the underlying principle of
avoiding the unjust enrichment of one party at the
expense of another.”)

Georgia

Ga. Code Ann. § 13-8-40(a) (“In addition to
temporary or permanent injunctive relief... any

In Infor Global Solutions, Inc. v. Hanover Foods
Corp.,No. 08-CV-3757, 2009 U.S. Dist. LEXIS

37



(2) Causing likelihood of confusion or
of misunderstanding as to the source,
sponsorship, approval, or certification
of goods or services;

eK
(5) Representing that goods or services
have sponsorship, approval,
characteristics, ingredients, uses,
benefits, or quantities that they do not
have or that a person has a sponsorship,
approval, status, affiliation, connection,
qualifications or license that he does not
have;

eK
(7) Representing that goods or services
are of a particular standard, quality, or
grade, or that goods are of a particular
style or model, if they are of another;

(8) Disparaging the goods, services, or
business of another by false or
misleading representations of fact;

eK
(17) Engaging in any act or practice
which is otherwise misleading, false,
or deceptive to the consumer.

See, eg., SAC J§ 54-58 (describing material
misrepresentations made by GSK to the USPTO
that generic manufacturers’ ANDAs _ infringed
GSK’s patent); SAC 4§ 125-142 (detailing
fraudulent statements made by GSK to USPTO

25



APPENDIX 1: PLAINTIFFS HAVE STANDING UNDER
FIVE OF THE ANTITRUST AND STATE CONSUMER

PROTECTION STATUTES
State Position from Defendants’ Appendix B, p 1. Law Confirming that Plaintiffs May Bring
Claims Under the Following Statutes
State Antitrust Laws

Florida Mack v. Bristol-Myers Squibb Co., 673 So. 2d 100, | Plaintiffs do not assert claims under the Florida
103 (Ha. Dist. Ct. App. 1996) (affirming lower | antitrust statute; they assert claims only under the
court’s holding that indirect purchasers are prohibited | consumer protection law. As a result, Defendants’
from bringing claims under Florida's antitrust | argument that Plaintiffs’ Florida state antitrust
statute). claim should be dismissed is moot.

Massachusetts Ciardi v. F. Hoffman-La Roche, Ltd. 762 N.E.2d | Plaintiffs do not assert claims under the

303, 308 (Mass. 2002) (“The plaintiff does not
dispute that she is an indirect purchaser . . . within the
meaning of Illinois Brick v. Illinois, and that she is
therefore foreclosed from pursuing her cause of
action under the Antitrust Act.”) (citation omitted).

Massachusetts antitrust statute; they assert claims
only under the consumer protection law. As a
result, Defendants’ argument that Plaintiffs’
Massachusetts state antitrust claim should be
dismissed is moot.



APPENDIX 5: PLAINTIFFS CAN MAINTAIN MONOPOLIZATION CLAIMS

State

Position From Defendants’ Appendix B, p. 9

Law Confirming that Plaintiffs May Bring
Claims Under the Following Statutes

California

Cal. Bus. & Prof. Code § 16720(e)(4) (prohibiting
any “agree[ment] to pool, combine or directly or
indirectly unite any interests that they may have
connected with the sale or transportation of any
such article or commodity, that its price might in
any manner be affected.”); In re Terazosin
Hydrochloride Antitrust Litig.,, 160 F. Supp. 2d
1365, 1378-80 (S.D. Ha. 2001) (finding that
California's antitrust law, Cal. Bus. & Prof. Code

§ 16700-61, “does not proscribe unilateral conduct”).

Plaintiffs make claims under Ca. Bus. & Prof.
Code §§ 16700, et seg., and Ca. Bus. & Prof. Code
§§ 17200, et seg. Defendants’ misrepresent the
holding in Terazosin. The Court held that
“California’s Unfair Competition Law proscribes
‘unfair competition’ in all of its forms, including
‘any unlawful, unfair or fraudulent business act or
practice.” Terazosin, 160 F. Supp. 2d. at 1379.
Further, the court could “find no authority for the
proposition that unilateral monopolization of the
market for a prescription drug would not offend its
provisions.”

In fact, the court could not have been any more
explicit in its holding: “The defendants insist that
the Court must dismiss this claim because the
Unfair Competition Law also does not apply to
unilateral monopolization and its remedies are
“generally limited to injunctive relief and
restitution.” This Court does not concur. Jd.

Nevada

Nev. Rev. Stat. § 598A.060 (“Every activity
enumerated in this subsection constitutes a contract,
combination or conspiracy in restraint of trade, and it
is unlawful to conduct any part of any such activity
in this State”).

Defendants argue that Plaintiffs may not recover
on a unilateral monopolization claim under Nevada
law. However, the Nevada statute lists as a
prohibited act “attempting to monopolize or
otherwise combining or conspiring to monopolize

33



West Virginia

W.V. § 47-18-9 (“Any person who shall be injured
in his business or property by reason of a violation
of the provisions of this article may bring an action
therefore and shall recover threefold the damages
sustained by him, together with reasonable attorneys’
fees, filing fees and reasonable costs of the action.
Reasonable costs of the action may include, but
shall not be limited to the expenses of discovery and
document reproduction.”).

Several courts have allowed unjust enrichment
claims to be asserted alongside state antitrust and
consumer protection statutes. In re Static Random
Access Memory Antitrust Litig., No. 07-CV-1819,
2009 U.S. Dist. LEXIS 110407, at *29, *80 (N.D.
Cal. Nov. 25, 2009) (certifying class of indirect
purchasers in West Virginia for violations of state
antitrust and consumer protection laws, as well as
for claims of unjust enrichment); Jn re Chocolate
Confectionary Antitrust Litig., 602 F. Supp. 2d
538, 587 (M.D. Pa. 2009) (indicating could allow
unjust enrichment claims in addition to violation of
state Antitrust Act).

42



Missouri

Willard v. Bic Corp., 788 F. Supp. 1059, 1071
(W.D. Mo. 1991) (dismissing an MMPA claim for
failure to show unfair practices within meaning of Act
because plaintiff did not fit “common fact pattern”
of “misleading and deceptive representations or
omissions directed toward the complaining
customer”); see also Courchene v. Citibank, N.A.,
No. 06-4026-CV, 2006 WL 2192110, at *2 (W.D.
Mo. Aug. 1, 2006) (dismissing MMPA claim
because plaintiff failed to plead any “fraudulent sale or
advertisement with particularity”).

GSK improperly indicates that the language in
Willard represents a requirement of the Missouri
Merchandising Practices Act (“MMPA”), Mo.
REV. StTaT. § 407.010, et seg. (2009). Willard v.
Bic Corp., 788 F. Supp. 1059, 1071 (W.D. Mo.
1991).

In fact, in the quoted language, the court was
merely summarizing the cases cited by defendant
Bic; it was not laying out a general rule:

After a survey of Missouri cases
brought under the Act, Bic
summarizes the common fact
pattem; a defendant makes
misleading and deceptive
representations or omissions
directed toward the complaining
consumer with knowledge that the
information is untrue or misleading
and with knowledge that the
consumer would rely on_ this
information or consider it when
making a purchase.

Id. Although this is certainly a “common fact
pattern” for cases brought under the MMPA, it is
not the only one possible.

GSK’s continued reliance on vague language in
Willard ignores the very clear language of the
MMPA prohibiting “unfair practice[s]” in addition
to those that are deceptive. Mo. REV. STAT.
§407.020(1); see also Schuchmann v. Air Services

28



furnishing of any service in this state, is or may be
established or maintained, or whereby Competition or
the free exercise of any activity in the conduct of any
business, trade or commerce or in the furnishing of
any service in this state is or may be restrained . . . is
hereby declared to be against public policy, illegal
and void.”); Bowlus v. Alexander & Alexander
Servs., Inc., 659 F. Supp. 914, 917 (S.D.N.Y. 1987)
(“The language of the statute itself limits its
application to conduct within the state.”) (citing
Baker v. Walter Reade Theatres, Inc., 237 N.Y.S.2d
795, 797 (Sup. Ct. 1962)).

tules on Shady Grove Orthopedics Associates, P.A.
y. Allstate Insurance Co., 549 F.3d 137 (2d Cir.
2008), cert. granted, 129 S. Ct. 2160 (2009).

North Carolina

Lawrence v. UMLIC-Five Corp., No. 06-20643,
2007 WL 2570256, at *7 (N.C. Super. June 18,
2007) (dismissing claim by foreign plaintiff against
resident defendant because court was not persuaded that
“that the Defendants’ alleged acts have had a substantial
in-state effect on North Carolina trade or commerce”).

The North Carolina consumer protection statute
does not require that the illegal conduct take place
within the state but only that the conduct have a
substantial effect in North Carolina. See Merck &
Co. v. Lyon, 941 F. Supp. 1443, 1463 (M.D.N.C.
1996) (citing The In Porters, S.A. v. Hanes
Printables, Inc. 663 F. Supp. 494, 501-502
(M.D.N.C. 1987).

A UDTPA claim requires three elements: “(1)
defendants committed an unfair or deceptive act or
practice, (2) in or affecting commerce and (3)
plaintiff was injured as a result.” Phelps-Dickson
Builders, L.L.C. v. Amerimann Partners, 172 N.C.
App. 427, 439 (N.C. Ct. App. 2005). Here,
Plaintiffs have adequately alleged an unfair or
deceptive act or practice (see, e.g. SAC §{f 54-58)
which affected commerce (see, e.g. SAC {J 163-
165) and Plaintiffs were injured as a result see, e.g.

12



Consumer Protection Laws

Arizona

State ex rel. Corbin v. Goodrich, 726 P.2d 215, 221
(Ariz. Ct. App. 1986) (Arizona’s Consumer Fraud Act
applies to “acts committed within Arizona in violation
of its provisions” to insure that “local business is
conducted honestly”).

The Corbin Court did not say the Consumer Fraud
Act only applies to intrastate conduct. Corbin, 726
P.2d 215 at 221 (Ariz. Ct. App. 1986). In fact,
courts have applied the Arizona Consumer Fraud
Act to allegations of antitrust violations with
nationwide effects. See In re Relafen Antitrust
Litig., 221 F.R.D. 260, 288 (D. Mass. 2004)
(certifying class of Arizona purchasers of
prescription drugs on allegations that drug
company unlawfully delayed market entry of
generic equivalent drug by filing frivolous patent
infringement lawsuits). Plaintiffs here allege
injuries that occurred within Arizona as a result of
the illegally delayed entry of generic Wellbutrin
SR into the Arizona marketplace. See Section
IL.B.3. of End-Payor Plaintiffs’ Brief in
Opposition to Defendants’ Motion to Dismiss.

Florida

Montgomery v. New Piper Aircraft Inc., 209
F.R.D. 221, 227 (S.D. Ha. 2002) (holding that
FDUTPA does not apply when the “alleged injuries
did not take place ‘entirely within [Florida].’”); see
also NationsRent Rental Fee Litig., No. 06-60924,
2009 WL 636188, at *4 (S.D. Fla. Feb. 24, 2009)
(noting that “[FDUPTA and the Consumer Protection

Defendants incorrectly argue that the FDUTPA
applies only when the alleged injuries did not take
place entirely within Florida. See In re Flonase
Antitrust Litig., No. 08-CV-3301, 2010 U.S. Dist.
LEXIS 4707, *25 (E.D. Pa. Jan. 21, 2010) (noting
that the plain language of FDUTPA contains no
such limitation). Moreover, GSK’s reliance upon