State of Louisiana, by and Through Its Attorney General, Liz Murrill v. Abbvie, Inc.

• Court: Louisiana Court of Appeal
• Decided: March 24, 2025
• Docket: CA-0025-0136
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

25-136 C/W 25-124 & 25-132

STATE OF LOUISIANA, BY AND THROUGH ITS ATTORNEY GENERAL, LIZ MURRILL

VERSUS

ABBVIE, INC., ET AL.

**********

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 23-C-00114-C HONORABLE CHARLES CRAVINS, DISTRICT JUDGE

LEDRICKA J. THIERRY JUDGE

Court composed of Sharon Darville Wilson, Charles G. Fitzgerald, and Ledricka J. Thierry, Judges.

AFFIRMED; WRITS DENIED. Nicole A. Eichberger Margaret Frohn Swetman Proskauer Rose LLP 650 Poydras Street, Suite 1800 New Orleans, LA 70130-6146 (504) 310-4088 COUNSEL FOR DEFENDANT/APPELLANT: Lupin Pharmaceuticals, Inc.

David A. Mukittrick Bradley R. Ruskin Proskauer Rose LLP Eleven Times Square New York, NY 10036 (212) 969-3000 COUNSEL FOR DEFENDANT/APPELLANT: Lupin Pharmaceuticals, Inc.

Colin R. Kass Proskauer Rose LLP 1001 Pennsylvania Avenue, N.W. Suite 600 South Washington, DC 20004 (202) 416-6800 COUNSEL FOR DEFENDANT/APPELLANT: Lupin Pharmaceuticals, Inc.

Joseph L. Mcreynolds Deutsch Kerrigan, L.L.P. 755 Magazine Street New Orleans, LA 70130 (504) 377-7865 COUNSEL FOR DEFENDANT/APPELLANT: Lupin Pharmaceuticals, Inc.

Charles M. Jarrell Gina Bradley Tuttle Guglielmo, Lopez, Tuttle, Hunter & Jarrell 306 E. North Street Opelousas, LA 70571 (337) 948-8201 COUNSEL FOR DEFENDANTS/APPELLANTS: Abbvie, Inc., Warner Chilcott, Ltd, Warner Chilcott Sales (US), LLC, Warner Chilcott, PLC, Watson Pharmaceuticals, Inc., Allergan, PLC, Actavis, Inc., and Actavis, PLC Eugene E. Hutchinson White & Case LLP 1221 Avenue of the Americas New York, NY 10020 (212) 819-8520 COUNSEL FOR DEFENDANTS/APPELLANTS: Abbvie, Inc., Warner Chilcott, Ltd, Warner Chilcott Sales (US), LLC, Warner Chilcott, PLC, Watson Pharmaceuticals, Inc., Allergan, PLC, Actavis, Inc., and Actavis, PLC

C. Kelly Newman White & Case LLP 75 State Street Boston, MA 02109 (617) 979-9300 COUNSEL FOR DEFENDANTS/APPELLANTS: Abbvie, Inc., Warner Chilcott, Ltd, Warner Chilcott Sales (US), LLC, Warner Chilcott, PLC, Watson Pharmaceuticals, Inc., Allergan, PLC, Actavis, Inc., and Actavis, PLC

J. Mark Gidley Kathryn J. Mims White & Case LLP 701 13th Street NW Washington, DC 20005 (202) 626-3600 COUNSEL FOR DEFENDANTS/APPELLANTS: Abbvie, Inc., Warner Chilcott, Ltd, Warner Chilcott Sales (US), LLC, Warner Chilcott, PLC, Watson Pharmaceuticals, Inc., Allergan, PLC, Actavis, Inc., and Actavis, PLC

Liz Murrill, Attorney General for the State of Louisiana Mike Dupree, Public Protection Division Mario Guadamud, Complex Litigation Unit Matthew P. Stafford, Jr., Medicaid Fraud Control Unit John J. Kelley, Office of the Attorney General Ryan McNeil, Office of the Attorney General 1885 North 3rd Street Baton Rouge, LA 70802 (225) 326-6468 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana John Alden Meade Meade Young, LLC 400 Poydras Street, Suite 1680 New Orleans, LA 70130 (504) 382-6283 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Robert L. Salim Salim-Beasley LLC 1901 Texas Street, Suite 1680 Natchitoches, LA 71457 (337) 352-5999 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Patrick C. Morrow Richard T. Haik, Jr. Morrow, Morrow, Ryan & Bassett P.O. Drawer 1787 324 W. Landry Street Opelousas, LA 71571 (337) 948-4483 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana THIERRY, Judge.

FACTS AND PROCEDURAL HISTORY

This appeal involves an action brought on January 23, 2023, by the State of

Louisiana, by and through its Attorney General (the State). Defendants to the action

are multiple pharmaceutical companies, whom the State alleges engaged in a

conspiracy to inflate prescription drug prices in Louisiana by agreeing to delay the

introduction of the generic equivalent of the brand name birth control drug, Loestrin

24 Fe (Loestrin), into the Louisiana market.

Specifically, it was alleged by the State that there was an agreement between

brand name drug manufacturers (the AbbVie Defendants1) and a generic drug

manufacturer, Lupin Pharmaceuticals, Inc. (Lupin), to delay the entry of generic

alternatives to Loestrin into the Louisiana market. The State alleges the AbbVie

Defendants paid Lupin to delay the introduction of its generic equivalent to Loestrin

so as to maintain the monopoly price of Loestrin. The State brought a claim under

the Louisiana Monopolies Act (LMA), the Louisiana Unfair Trade Practices Act

(LUTPA), Louisiana’s Medicare Protection and Integrity Law (MAPIL) and, in the

alternative, unjust enrichment, to recover for paying reimbursements to pharmacies

(primarily under Medicaid) for branded Loestrin prescriptions rather than generics.

The State alleged this agreement was tainted by fraud, sham lawsuits and sham

regulatory filings.

Asserting the State’s claims “necessarily turn on multiple substantial

questions of federal law,” the AbbVie Defendants sought removal of the case to

1 The “AbbVie Defendants” are AbbVie, Inc.; Warner Chilcott, LTD; Warner Chilcott (US), LLC; Warner Chilcott Sales (US), LLC; Warner Chilcott Company, LLC; Warner Chilcott, PLC; Watson Pharmaceuticals, Inc.; Watson Laboratories, Inc.; Allergen, PLC; Actavis, Inc.; and Actavis, PLC. They are named this because AbbVie has acquired or merged at some point with all of these entities. federal court. Eventually, after reviewing the AbbVie Defendant’s Petition for

Removal, the United States District Court, Western District of Louisiana remanded

the case back to the Twenty-Seventh Judicial District Court on August 21, 2024.

On September 10, 2024, several exceptions were filed by Lupin and the

AbbVie Defendants in district court, as follows:

1. Defendant Lupin filed a Dilatory Exception of Lack of Personal Jurisdiction;

2. The AbbVie Defendants filed a Peremptory Exception of No Cause of Action;

3. The AbbVie Defendants filed a Peremptory Exception of No Right of Action;

4. The AbbVie Defendants filed a Peremptory Exception of Prescription;

5. The AbbVie Defendants filed a Dilatory Exception of Vagueness;

6. The AbbVie Defendants filed a Peremptory Exception of Res Judicata;

7. Certain AbbVie Defendants (AbbVie, Inc.; Allergen, PLC; Actavis, Inc. and Actavis, PLC) filed a separate Peremptory Exception of No Cause of Action (on the grounds that the State’s Petition contains no allegations of wrongdoing as to them);

8. Certain AbbVie Defendants (AbbVie, Inc.; Allergen, PLC; Actavis, Inc. and Actavis, PLC) filed a separate Dilatory Exception of Vagueness;

On November 10, 2024, Lupin, by virtue of a filing, adopted all of the

arguments of the AbbVie Defendants as to their filed exceptions.

A hearing on the exceptions was held on December 9, 2024. After five hours

of oral argument and receiving memoranda from all parties, the trial court took the

matter under advisement. On January 9, 2025, the trial court issued written reasons

for judgment either denying or mooting all the exceptions filed by Lupin and the

AbbVie Defendants.

2 As to Lupin’s Dilatory Exception of Lack of Personal Jurisdiction, the trial

court found the State met its burden of showing Lupin had minimal contacts with

Louisiana sufficient to establish personal jurisdiction. These contacts were (1) Lupin

is registered to do business in Louisiana; (2) Lupin, at the time the conduct sued

upon occurred, was engaged in the sale of generic drugs in Louisiana, including

generic Loestrin; (3) the agreement to delay marketing generic Loestrin occurred in

Louisiana; and (4) the agreement resulted in harm within the boundaries of Louisiana

by requiring payment of excessively high prices for name brand Loestrin. Finding

that Lupin purposely directed its activities toward Louisiana, and the litigation

resulted from alleged injuries as a result of those activities, the trial court found

specific jurisdiction in Louisiana as to Lupin. Thus, the exception was denied.

As to the AbbVie Defendants’ Peremptory Exception of No Cause of Action,

they argued the LMA prevented any cause of action against them, because they

interpret the LMA as only applying to intrastate commerce. The trial court read the

LMA as finding “[a]ny contract, combination or conspiracy that restrains Louisiana

commerce is illegal. It is, likewise, illegal for any person to monopolize, attempt to

monopolize, or combine or conspire with anyone else to monopolize Louisiana trade

or Louisiana commerce.” The court held it does not matter whether the conspiracy

occurred inside or outside Louisiana, only that there was a conspiracy to restrain

trade in Louisiana. Thus, it found the LMA applicable to the facts of this case and

denied the Exception of No Cause of Action.

The AbbVie Defendants also filed a Peremptory Exception of No Cause of

Action under the Medical Assistance Programs Integrity Law (MAPIL), La.R.S.

46:438.3, which provides that “[n]o person shall knowingly present or cause to be

presented a false or fraudulent claim.” The trial court found the State “sufficiently

3 allege[d] that claims were submitted that were ‘part of a pattern [by Defendants] of

incorrect submissions in regard to material information or which is otherwise part of

pattern in violation of applicable federal or state law or rule.’” Accordingly, the trial

court denied the Exception of No Cause of Action under MAPIL.

The AbbVie Defendants also filed a Peremptory Exception of No Cause of

Action for claims by the State based upon a theory of unjust enrichment. The trial

court noted that the State did allege facts that show there was no justification or

cause for the enrichment by Defendants. Defendants in this exception argued that

the State may not assert a claim based upon unjust enrichment because the State has

asserted a claim under law. The trial court disagreed with Defendants’ contention

to dismiss the unjust enrichment claim because other laws are directed to the issue.

The trial court reasoned:

If a higher Court decides that the State has no cause of action under LMA, MAPIL, or Louisiana Unfair Trade Practices Act (LUTPA), that will necessarily mean that LMA, MAPIL and LUTPA are not other laws directed to the issue of whether a pharmaceutical company can conspire to create and execute a generic drug delay scheme involving fraud that causes monetary loss to the State of Louisiana. At that point, the State’s causes of action under LMA, MAPIL and LUTPA would be non-existent. In that event, the State’s alternative claim of unjust enrichment would serve to fill a gap in the law. ...

If higher courts ultimately determine that the exception of no cause of action under LMA, MAPIL and LUTPA were properly denied here, the claim for Unjust Enrichment can be disposed of at a later date by amendment of the Petition to exclude that claim, or by summary judgment. On the other hand, if a higher court were to decide that there is no cause of action under LMA, MAPIL or LUTPA, it would be judicially inefficient to dismiss the unjust enrichment claims now, only to have the State file a new suit to pursue the unjust enrichment claim after the higher courts have examined these issues.

For these reasons, the Exception of No Cause of Action on the alternative claim of unjust enrichment is DENIED.

4 Next, the trial court addressed the filing of a separate Peremptory Exception

of No Cause of Action by certain AbbVie Defendants (AbbVie, Inc.; Allergen, PLC;

Actavis, Inc.; and Actavis, PLC) on the grounds that the State’s Petition contained

no allegations of wrongdoing as to them. Specifically, those Defendants alleged the

State employed “group pleading” that did not allege wrongdoing on their part. The

trial court found the Petition alleged facts that applied to all defendants. Moreover,

the trial court found the Petition alleges agreements, acquisitions and mergers among

the defendants that may be sufficient to support a cause of action under a theory of

successor liability or contract law (the facts established there were numerous

acquisitions and mergers that took place involving these defendants). Noting that

Louisiana is a fact pleading state, and because no evidence is allowed in an exception

of no cause of action, considering the well-pled allegations in the Petition, the trial

court found it would not be proper at this stage to dismiss the suit against these

defendants.

The AbbVie Defendants also filed a Peremptory Exception of No Right of

Action on several grounds. First, they maintained the State has no right of action

under the LMA, LUTPA and unjust enrichment because the State was an indirect

purchaser. They cited the United States Supreme Court case of Illinois Brick Co. v.

Illinois, 431 U.S. 720, 97 S.Ct. 2061 (1977), for the proposition that only a direct

purchaser may bring an action under the federal antitrust provision. The trial court

found the decision in Illinois Brick was solely based on federal policy

considerations, and as such was “not applicable to the Louisiana laws that are at

issue in this case.” The trial court also found “neither LMA, LUTPA nor Louisiana’s

unjust enrichment construct prohibit the State from bringing an action as an indirect

5 purchaser.” Thus, the trial court denied the Exception of No Right of Action on the

basis that the State was an indirect purchaser.

Second, the AbbVie Defendants alleged the State has no right of action

because the Louisiana Department of Health (LDH) and other state agencies are the

proper parties to bring suit under the LMA, MAPIL, LUTPA and unjust enrichment.

The trial court disagreed, finding the State’s right to bring LMA, MAPIL and

LUTPA actions has repeatedly been recognized in the jurisprudence. The trial court

also found the State was the proper party to bring any action for unjust enrichment

if proven to have occurred. Thus, the Exception of No Right of Action on these

grounds was denied.

The AbbVie defendants also filed an Exception of Prescription based upon

the argument that independent state agencies are the proper parties to bring suit and

the prescriptive period as to these agencies has prescribed. The trial court denied

the exception, finding the State, not the independent agencies, was the proper party

to bring suit, and under La.Const. art. XII, § 13, “Prescription shall not run against

the state in any civil matter, unless otherwise provided in this constitution or

expressly by law.”

The AbbVie Defendants also filed an Exception of Res Judicata asserting any

direct purchaser claims were resolved by Multidistrict Litigation in federal court in

Rhode Island, where direct purchaser claims were resolved, and the State did not opt

out of that litigation. The State maintained the Eleventh Amendment of the United

States Constitution, which grants sovereignty to the states, nullifies the exception of

res judicata in this case. The trial court noted that the parties filed a Stipulation into

the record stating that the State has not identified any direct purchases and is not

6 pursuing any direct purchaser claims. For that reason, the trial court found the

Exception of Res Judicata was moot.

Lastly, the AbbVie Defendants filed an Exception of Vagueness on two

grounds. The first alleged the claims against certain AbbVie Defendants (Allergen,

PLC, Actavis, Inc. and Actavis, PLC) was impermissibly vague. The trial court

denied this exception, noting discovery has not been completed in this matter.

Second, the AbbVie Defendants maintained the State failed to identify the state

agencies on whose behalf the State brings this suit. The trial court found that the

“failure to identify which agencies would be barred from bringing suit based upon

the same transaction or occurrence so as to be barred by res judicata does not pose a

grave risk, as those actions would be barred by prescription.” Thus, the trial court

denied the exception of vagueness on these grounds as well.

The trial court’s written reasons for judgment were issued on January 9, 2025,

denying all exceptions filed by Lupin and the AbbVie Defendants. A certified copy

of the reasons for judgment was issued by the Clerk of Court on January 13, 2025.

Lupin timely filed a Motion for Appeal with respect to the denial of its exceptions

regarding the LMA on January 16, 2025. On January 24, 2025, the trial court signed

its judgment overruling all exceptions. On January 27, 2025, the AbbVie

Defendants timely filed their Motion for Appeal. The trial court’s January 24, 2025

judgment is an immediately appealable interlocutory judgment pursuant to La.R.S.

51:134 and 51:135.2 On January 28, 2025, the trial court signed the Order of Appeal

involving Lupin.

2 Under the provisions of La.R.S. 51:135, interlocutory judgments, such as the one before us, are immediately reviewable because they allege claims that Defendants violated the LMA. Louisiana Revised Statutes 51:135 states:

7 On February 24, 2025, Lupin timely filed a writ application (docket number

CW 25-132) with this court seeking supervisory review of the court’s interlocutory

ruling denying Lupin’s declinatory exceptions with respect to LUTPA, MAPIL and

common law claims. On that same day, the AbbVie Defendants also timely filed a

writ application with his court.

On March 6, 2025, Lupin and the AbbVie Defendants filed a Joint Motion to

Consolidate the appeal (docket no. 25-136) and the writ applications (docket nos.

25-124 and 25-132). The State consented to the consolidation and this court granted

the Joint Motion to Consolidate. As such, the issues raised in the writ application

will also be addressed in this opinion. In its writ application and appeal, Lupin joins

in and adopts all the arguments made by the AbbVie Defendants.

Assignments of Error.

Lupin alone asserts the following assignment of error from the trial court’s

judgment:

1. The trial court erred in finding specific personal jurisdiction over Lupin.

The AbbVie Defendants assert the following assignments of error from the

trial court’s judgment, which Lupin adopts in total:

1. The trial court erred in failing to dismiss the State’s LMA claims for failure to state a cause of action where the State failed to allege that any anticompetitive conduct occurred within Louisiana.

All interlocutory judgments in the cases affected by this Part, and not otherwise provided for, shall be appealable within five days and shall be heard and determined within twenty days after appeal is lodged, and any interlocutory judgments not appealed, except those rendered during the progress of the trial, shall be final, and shall not be reopened on final appeal. Such appeals shall be on the original papers, on the order of the district judge, if a transcript cannot be prepared in time.

8 2. The trial court erred in failing to dismiss the State’s LMA claims for no right of action because Louisiana state law does not permit indirect purchasers to bring suit, as stated in Free.

3. The trial court erred in failing to dismiss the State’s LMA claims for no right of action to pursue a claim under the LMA on behalf of LDH and any other unnamed independent state agency because the State lacks a right of action to bring such claims under the Louisiana Supreme Court’s holding in Molina. Molina establishes that only the independent agency may bring a suit, not the State on its behalf, where the statute at issue does not give the State authority to bring claims on behalf of the agency and no exceptional circumstances are pleaded.

4. The trial court erred in failing to dismiss the State’s LMA claims based on prescription which properly belongs to LDH or other independent agencies because such agencies cannot rely on nullum tempus.

5. The trial court erred in failing to dismiss all claims on behalf of unnamed state agencies as vague because the AbbVie Defendants cannot determine the claims brought against them and for what reasons.

6. The trial court erred in failing to dismiss the LMA claims brought against AbbVie, Inc., Allergan, PLC, Actavis, Inc. and Actavis, PLC for failure to state a cause of action because the Petition contains no allegations relating to these entities or allegations sufficient to state a prima facie case of successor liability.

7. The trial court erred in failing to find that the State’s allegations as to the LMA claims against Allergan, PLC, Actavis, Inc., Actavis, PLC, and AbbVie, Inc. were impermissibly vague.

ANALYSIS

I. Lupin’s Assignment of Error.

In its writ application and appeal, Lupin maintains the trial court erred in

denying its Exception of Lack of Personal Jurisdiction. The AbbVie Defendants did

not contest that there was personal jurisdiction as to them; thus, Lupin alone asserts

this assignment of error.

9 The Louisiana Long Arm Statute provides for the exercise of personal

jurisdiction over a nonresident defendant, who acts directly or by an agent, as to a

cause of action arising from transacting any business in this state, contracting to

supply services or things in this state, or causing injury or damage by an offense or

quasi offense committed through an act or omission in this state. La.R.S. 13:3201.

Further, the Louisiana Long Arm Statute provides for the exercise of personal

jurisdiction over a nonresident on any basis consistent with the United States and

Louisiana Constitutions. La.RS. 13:3201(B); see also Crosstex Energy Servs., LP

v. Texas Brine Co., LLC, 17-1405 (La.App. 1 Cir. 4/25/18), 253 So.3d 806, writ

denied, 18-881 (La. 9/28/18), 252 So.3d 919. “The addition of Subsection B to the

Long Arm Statute ensures that the long-arm process extends to the limits allowed by

due process.” Id. at 811. Thus, “the sole inquiry into jurisdiction over a nonresident

is an analysis of the constitutional due process requirements.” Id.

“Due process allows personal jurisdiction over a nonresident defendant when

it has certain ‘minimum contacts’ with the forum state such that maintenance of the

suit does not offend traditional notions of ‘fair play and substantial justice.’” Id. at

811 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158

(1945) and Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 06-1736 (La.

4/11/07), 954 So.2d 120, 124–25). “The defendant’s contact with the forum state

must be such that he should reasonably anticipate being haled into court in the forum

state.” Id.

Louisiana Code of Civil Procedure article 930 provides that at a trial on a

declinatory exception, evidence may be introduced to support or controvert any of

the objections pleaded. Lupin entered no evidence in support of its exception of lack

of personal jurisdiction. “When no evidence is presented at the hearing on a

10 jurisdictional objection, the objection must be decided on the facts alleged in the

petition. Park West Children’s Fund, Inc. v. Trinity Broadcasting Network, Inc.,

2013-444 (La. App. 3d Cir. 10/16/13), 156 So.3d 682, 686; See also Northshore

Regional Medical Center, L.L.C., 94 So.3d at 160-161.” Witter v. Sanibel Yacht &

Slip, LLC, 19-1031, p. 8 (La.App. 1 Cir. 6/24/20), 307 So.3d 1053, 1059. Thus, the

trial court properly examined the allegations set forth in the State’s Petition. The

trial court concluded as follows:

[T]he facts alleged in the Petition are sufficient to show that Lupin has contacts in the State of Louisiana that are so related to the controversy that is the subject of this suit so not to offend due process. The controversy in this case is whether Lupin and others engaged in a conspiracy to artificially inflate drug prices in Louisiana, by delaying the entry of generic Loestrin products into the Louisiana market. The activity of which the State complains was directed toward Louisiana, significant injury occurred in and to Louisiana, and, if the alleged activities are true, then the activities’ relationship to the forum state far surpass what is needed to establish specific jurisdiction.

We find unpersuasive Lupin’s assertion that it has a “complete absence of any

Louisiana contacts.” The trial court noted Lupin was registered to do business in

Louisiana. Although, as Lupin points out, simply being registered to do business in

Louisiana is not enough by itself to confer specific jurisdiction on Lupin, the State’s

Petition alleges other significant contacts between Lupin and Louisiana. The State

notes Lupin has an ongoing contractual relationship with Louisiana through its

Medicaid program, which is the exact program for which the State is seeking relief

from Lupin. The State also points out that Lupin’s entry into Louisiana with the

generic Loestrin was delayed and not a permanent absence; and at all times they

were always present in Louisiana, but simply agreed with the AbbVie Defendants to

delay the introduction of the generic Loestrin. This period of delay allowed the

AbbVie Defendants to be able to charge significantly higher prices for branded

11 Loestrin, rather than offer the lower cost generic equivalent, and defeat Louisiana’s

generic subscription laws. The State also alleged in its Petition that when Lupin

finally did enter Louisiana, it did so at a price level in excess of what its price would

have otherwise been, stating “Plaintiff would have paid less for Loestrin 24 drugs

by: . . . (c) purchasing generic loestrin 24 at lower prices sooner.”

Lupin also argues its non-entry into Louisiana was precipitated by a 2010

settlement of federal patent litigation with AbbVie, where a settlement was reached

to provide that Lupin would not sell generic Loestrin until the patent expired. Lupin

argues, because this settlement occurred in Delaware, the conduct the State

challenges (the agreement to delay entry of generic Loestrin into the market)

occurred not in Louisiana, but Delaware. However, the State notes its Petition does

not allege the agreement to extend AbbVie’s monopoly was confected in Delaware.

What the Petition alleges is that the agreement was designed to unlawfully extend

AbbVie’s monopoly in all fifty states, including Louisiana. The Petition points to

the LMA, which specifically states that “every contract, combination, in the form of

a trust or otherwise or conspiracy, in restraint of trade or commerce in this state is

illegal.” La.R.S. 51:122. We agree with the State that the key point in conferring

jurisdiction in not where the contract, combination, or conspiracy was confected, but

whether the trade or commerce so restrained must be “in this state.” Significantly,

the State’s Petition alleges that Lupin received funds from the AbbVie Defendants,

derived specifically from the unlawful profits gained from the agreement to delay

the introduction of the generic equivalent of Loestrin.

We cannot say the trial court erred in finding Lupin intentionally directed its

conduct towards Louisiana, specifically to affect a competitive market in Louisiana,

and was allegedly directly compensated for this conduct out of the funds derived by

12 the AbbVie Defendants through this conduct. Therefore, the trial court’s denial of

Lupin’s Exception of Lack of Personal Jurisdiction is affirmed.

II. The AbbVie Defendants’ Assignments of Error (Adopted by Lupin)

1. The trial court erred in failing to dismiss the State’s LMA claims for failure to state a cause of action. “An exception of no cause of action questions whether the law extends a

remedy against the defendant to anyone under the factual allegations of the petition

and is triable on the face of the petition.” Badeaux v. Southwest Computer Bureau,

Inc., 05-612, 05-719, p. 7 (La. 3/17/06), 929 So.2d 1211, 1217. To determine the

issues raised by the exception of no cause of action, “each well-pleaded fact in the

petition must be accepted as true.” Id. “An exception of no cause of action should

be granted only when it appears beyond doubt that the plaintiff can prove no set of

facts in support of any claim that would entitle him to relief.” Id. “Every reasonable

interpretation must be accorded the language used in the petition in favor of

maintaining its sufficiency and affording the plaintiff the opportunity of presenting

evidence at trial.” Id. “If the petition states a cause of action on any ground or

portion of the demand, the exception should generally be overruled.” Id.

The AbbVie Defendants assert that there is no cause of action against them

under the LMA, La.R.S. 51:121 et seq. “Commerce means trade or commerce

within the geographic boundaries of this state.” La.R.S. 51:121. “Every contract,

combination in the form of trust or otherwise, or conspiracy, in restraint of trade or

commerce in this state is illegal.” La.R.S. 51:122(A). “No person shall monopolize,

or attempt to monopolize, or combine, or conspire with any other person to

monopolize any part of the trade or commerce within this state.” La.R.S. 51:123

13 A plain reading of the above statutes provides commerce is “trade or

commerce within the geographical boundaries of this state.” La.R.S. 51:121. The

illegal act which the State alleges is the “contract, combination . . . or conspiracy”

and the alleged injury is the “restraint of trade or commerce.” Thus, we agree with

the State and the trial court that the sale of drugs in this state at monopoly prices is

under the umbrella of “commerce” as defined in the LMA. Further, nowhere in

La.R.S. 51:122(A), or anywhere else in the LMA, is there a stated requirement that

the “contract, combination . . . or conspiracy” must have occurred within Louisiana.

However, there most certainly is a geographical requirement that the restrained trade

or commerce must have occurred in Louisiana. Nowhere in the State’s Petition does

it assert that the conspiracy in question occurred in Louisiana, but the Petition does

clearly allege that the injury occurred within the geographical boundaries of

Louisiana.

Defendants rely on State By & Through Caldwell v. Fournier Industrie et

Sante, 17-1552 (La. App. 1 Cir. 8/3/18), 256 So.3d 295, writ denied, 18-2065 (La.

4/8/19), 267 So.3d 607, for its interpretation that the LMA is confined to strictly

intrastate conduct. Similar to the instant case, in Fournier the State’s Petition

alleged that Defendants had employed an unlawful scheme to prevent or delay a less

expensive generic version of a drug from entering the market. The State claimed

that, through this scheme, Defendants illegally maintained monopoly power in the

United States for at least a decade, maintained the price at supra-competitive levels,

and overcharged the State of Louisiana millions of dollars by depriving it of the

benefits of unrestricted competition and access to less expensive generic versions of

the drug in question. Similar to here, the defendant drug manufacturer filed an

exception of no cause of action as to the LMA claim, contending the alleged acts did

14 not occur in Louisiana or have the purpose of affecting trade in Louisiana. In

reversing the trial court’s denial of the exception of no cause of action, the appellate

court in Fournier, 256 So.3d at 303, stated:

The State cannot state a cause of action for violations of the Louisiana Monopolies Act based on the operative facts (i.e. AbbVie’s activities) that occurred outside of the geographic boundaries of Louisiana. The Louisiana Monopolies Act defines commerce as “trade or commerce within the geographic boundaries of this state.” La.R.S. 51:121 (emphasis added). Further, the Louisiana Monopolies Act states that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.” La.R.S. 51:122(A) (emphasis added). The alleged illegal acts in the State’s petition include patent infringement actions filed in Illinois and Delaware. Although the State alleges that AbbVie’s acts affected commerce within Louisiana and that AbbVie sold TriCor within Louisiana, the alleged wrongful acts occurred outside of the geographic boundaries of Louisiana. Accordingly, the State failed to state a cause of action under the Louisiana Monopolies Act.

Initially, we note the first circuit’s decision in Fournier is not controlling

authority here. Moreover, as the trial court found, we choose not to follow the

decision in Fournier, finding it disregards the plain language of the LMA. As noted

above, any geographic restriction in the LMA refers to the injury in this case. i.e.,

the “restraint of trade or commerce.” There is no geographic restriction as to where

the cause, in this case the conspiracy between Lupin and AbbVie, occurs.

The State notes the fourth circuit in Southern Tool & Supply, Inc. v. Beerman

Precision Inc., 04-1749, pp. 2-3 (La.App. 4 Cir. 2/14/05), 899 So.2d 53, 55, writs

denied, 05-720 and 05-721 (La. 6/3/05), 903 So.2d 457, provided a different

interpretation of whether the LMA applies strictly to intrastate conduct, stating:

This Court noted that although neither the Louisiana Supreme Court nor this Court have explicitly held that Louisiana’s antitrust statutes may apply to matters involving both intrastate and interstate commerce, both courts have upheld application of Louisiana’s antitrust laws in cases where the anticompetitive effects occurred in Louisiana. Southern Tool & Supply, Inc. v. Beerman Precision Inc., 2001-1749 (La.App. 4 Cir. 5/1/02), 818 So.2d 256. In finding that the trial court

15 erred in granting defendants’ exceptions of lack of subject matter jurisdiction, this Court held that the Louisiana antitrust statute’s application to matters of intrastate commerce does not necessarily mean that all acts in violation of the statute must occur within this state. Id.

We find the fourth circuit’s interpretation in Southern Tool & Supply, which

prioritizes the effect of the restraint of commerce occurring in Louisiana rather than

the location of the conspiracy which led to the anticompetitive conduct is correct.

This focuses on the restraint of commerce within Louisiana rather than the domicile

of the alleged wrongdoers.

Thus, we find the trial court was correct in denying Defendants’ argument

that, in order for the LMA to apply, the conspiracy must have occurred in Louisiana.

A plain reading of the statutes in question convinces us that under the LMA it is

illegal to conspire to restrain trade in Louisiana, regardless of where the conspiracy

was confected. Thus, the LMA is applicable to the facts alleged in the State’s

Petition. The Exception of No Cause of Action was properly denied.

2. The trial court erred in failing to dismiss the State’s LMA claims for no right of action because Louisiana state law does not permit indirect purchasers to bring suit, as stated in Free. The function of an exception of no right of action is a determination of

whether plaintiff belongs to the class of persons to whom the law grants the cause of

action asserted in the petition. La.Code Civ.P. art. 927(A)(6); Badeaux, 929 So.2d

1211. “In examining an exception of no right of action, a court should focus on

whether the particular plaintiff has a right to bring the suit but assume that the

petition states a valid cause of action for some person.” Turner v. Busby, 03-3444,

p. 4 (La. 9/9/04), 883 So.2d 412, 415.

The AbbVie Defendants argue the trial court erred in holding that Louisiana

law permits indirect purchasers to recover for injuries under the LMA. Indirect

16 purchasers are those who do not purchase products directly from manufacturers but

instead purchase the products indirectly from retailers or wholesalers. The State

stipulated that it is only an indirect purchaser. The AbbVie Defendants base this

argument on Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061 (1977), where

the United States Supreme Court held that only a direct purchaser may bring an

action under the federal antitrust provision. The State does not dispute that Illinois

Brick bars indirect purchasers from seeking monetary damages under federal

antitrust laws. However, the State maintains Illinois Brick “neither pre-empts nor

applies to state antitrust laws.” In support of this argument, the State cites the Unites

States Supreme Court’s opinion in California v. ARC America Corp., 490 U.S. 93,

102-03, 109 S.Ct. 1661, 1666 (1989), which discussed the effect of its ruling in

Illinois Brick and rejected the argument that California’s antitrust law, which allows

indirect purchaser actions, was preempted by federal law:

Neither of those cases (Illinois Brick and Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481 (1968)) addressed the preemptive force of the federal antitrust laws. Neither case contains any discussion of state law or of the relevant standards for preemption of state law. As we made clear in Illinois Brick, the issue before the Court in both that case and in Hanover Shoe was strictly a question of statutory interpretation—what was the proper construction of § 4 of the Clayton Act. See, e.g., 431 U.S. at 736, 97 S.Ct. at 2069.

It is one thing to consider the congressional policies identified in Illinois Brick and Hanover Shoe in defining what sort of recovery federal antitrust law authorizes; it is something altogether different, and in our view inappropriate, to consider them as defining what federal law allows States to do under their own antitrust law. As construed in Illinois Brick, § 4 of the Clayton Act authorizes only direct purchasers to recover monopoly overcharges under federal law. We construed § 4 as not authorizing indirect purchasers to recover under federal law because that would be contrary to the purposes of Congress. But nothing in Illinois Brick suggests that it would be contrary to congressional purposes for States to allow indirect purchasers to recover under their own antitrust laws.

17 The Supreme Court further found that “[g]iven the long history of state common-

law and statutory remedies against monopolies and unfair business practices, it is

plain that this is an area traditionally regulated by the States.” Id. at 101, 120 S.Ct.

1665 (footnote omitted). The Supreme Court ultimately concluded that Congress

had not preempted the field of antitrust law but instead “intended the federal antitrust

laws to supplement, not displace, state antitrust remedies.” Id. at 102, 109 S.Ct.

1665.

The AbbVie Defendants rely on the federal court opinion in Free v. Abbott

Laboratories, Inc., 176 F.3d 298 (5th Cir. 1999). In Free, consumers of infant

formula sued the manufacturers of infant formula under Louisiana’s antitrust laws

alleging a price-fixing conspiracy. The federal court noted that the “Louisiana

Supreme Court denied certification, leaving us to fathom Louisiana’s unsettled

antitrust law as Louisiana courts would do it.” Id., at 299. The Free court then went

on to opine:

In our best judgment, the Louisiana courts would follow the federal indirect purchaser rule and deny standing to the appellants. See Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061 (1977). In reaching this conclusion, we assume arguendo that Louisiana antitrust laws apply to a conspiracy carried on interstate that has effects within the state.

Id.3

The first circuit in State, By and Through Caldwell v. Astra Zeneca AB, 16-

1073 (La. App. 1 Cir. 4/11/18), 249 So.3d 38, 42, writ denied, 18-758 (La. 9/21/18),

252 So.3d 904, and writ denied, 18-766 (La. 9/21/18), 252 So.3d 899, in noting that

3 We note, as further support for our above conclusion that under the LMA it is illegal to conspire to restrain trade in Louisiana, regardless of where the conspiracy is confected, is the above quote from the Free court where it assumed for argument purposes that “Louisiana antitrust laws apply to a conspiracy carried on interstate that has effects within the state.”

18 the federal court in Free “believes that Louisiana courts would follow the Illinois

Brick rationale such that indirect purchasers do not have standing under Louisiana

state law,” then examined in footnote 6 the nationwide trends on whether to allow

indirect purchasers to have standing to sue under state antitrust laws:

Twenty-six states and the District of Columbia have judicially or legislatively “repealed” Illinois Brick and provided standing (or a right of action) to indirect purchasers under antitrust or consumer protection statutes. To guard against the concern first raised in Illinois Brick, many of these states require courts to ensure the defendants are not subject to multiple liability. Six other states have passed partial Illinois Brick repealer statutes. While these states do not permit indirect purchaser suits, they authorize the state attorney general to recover if the state itself is injured as an indirect purchaser or to recover on behalf of an indirect purchaser as parens patriae. In contrast, thirteen states follow Illinois Brick by either completely barring indirect purchaser suits or by providing standing under limited circumstances. Many do so because their antitrust laws are interpreted to be harmonious with federal antitrust law. Five states have not addressed the issue.

We further note Free did not provide any factual analysis of the asserted claims and

is in opposition to the Supreme Court’s opinion in ARC America that “nothing

in Illinois Brick suggests that it would be contrary to congressional purposes for

States to allow indirect purchasers to recover under their own antitrust laws.” ARC

America Corp., 490 U.S. at 103, 109 S.Ct. at 1666. Thus, we find Free provides

little support for the AbbVie Defendant’s proposition that indirect purchasers do not

have a right of action under the LMA.

The AbbVie Defendants also rely on the fact that Louisiana has not passed a

statute that expressly addresses indirect purchaser standing. As can be seen in the

above analysis in Astra Zeneca, while many states have passed “Illinois Brick

repealer statutes” to confer standing to indirect purchasers under their particular

state’s antitrust laws, other states have granted standing to indirect purchasers

through jurisprudential statutory interpretation of their existing statutes. Thus, as

19 the State argues, and the trial court agreed with, the fact Louisiana, to date, has no

“Illinois Brick repealer statute” is not determinative of indirect purchaser standing

under Louisiana’s antitrust law.

The State, in its brief, points to an Arizona case, Bunker’s Glass Co. v.

Pilkington PLC, 47 P.3d 1119 (Ariz. Ct. App.2002). In that case, the Arizona

appellate court considered whether an indirect purchaser of goods may bring an

action to recover damages resulting from the alleged price-fixing by the

manufacturers of those goods. The court in Bunker’s Glass noted that the Arizona

legislature had not passed an Illinois Brick repealer statute, and commented:

We, however, do not interpret the Arizona legislature’s failure to explicitly authorize indirect purchaser claims as indicating its agreement with Illinois Brick. Silence on an issue is not an expression of legislative intent. Furthermore, the theory of legislative acquiescence “is limited to instances in which the legislature has considered and declined to reject the relevant judicial interpretation.” Here, not only do we have no record that the Arizona legislature ever considered making Illinois Brick the law in Arizona, but its action in 1974 was presumably based on the holding in the Western Liquid Asphalt Cases. Therefore, we do not consider the legislature's post- 1977 silence on the issue of indirect purchaser standing as an indication that it acquiesces in the holding of Illinois Brick.

Id. at 1128-29 (citations omitted).

The court further found there was nothing in the plain language of the Arizona

antitrust statute to prohibit indirect purchasers from bringing suit, and concluded that

“allow[ing] indirect purchaser actions best serves the goals and policies of Arizona’s

antitrust constitutional provision and statutes.” Id. at 1129. The Arizona Supreme

Court, with similar reasoning, affirmed the decision of the Arizona appellate court.

Bunker’s Glass Co. v. Pilkington PLC, 75 P.3d 99 (Ariz. 2003)

20 The State also cites to an Iowa case, Comes v. Microsoft Corp., 646 N.W.2d

440, 445 (Iowa 2002), wherein the Iowa court, citing as authority Bunker’s Glass,

stated:

The state antitrust statute is clear on its face. The statute provides, “[a] person who is injured . . . by conduct prohibited under this chapter may bring suit.” Iowa Code § 553.12. This statute does not restrict the class of persons who may bring suit under the Iowa Competition Law. Nothing in the statute says in order to seek redress for antitrust violations a purchaser must be directly injured. The legislature did not specifically limit standing to direct purchasers, but instead it simply authorized “[a] person who is injured” to sue. Legislative intent is determined by what the legislature said, not by what it did not say or might have said. State v. Beach, 630 N.W.2d 598, 600 (Iowa 2001); see Bunker's Glass Co. v. Pilkington, plc, 47 P.3d 1119, 1128 (Ariz. Ct. App.2002). Therefore, we do not regard our legislature’s failure to explicitly authorize indirect purchasers to maintain a suit for antitrust violations as an expression of its agreement with Illinois Brick. See Bunker’s Glass Co., 47 P.3d at 1128-29. Given the clear, broad language of the state antitrust law, we conclude the Iowa Competition Law creates a cause of action for all consumers, regardless of one’s technical status as a direct or indirect purchaser.

Considering the above reasoning, we find the trial court did not err in finding

the Illinois Brick decision was based solely upon federal law considerations and does

not create any presumption that indirect purchasers should be barred from state

antitrust laws such as the LMA.

The trial court also concluded that the LMA provides that any person can

bring an action under its umbrella. We find the plain wording of the LMA supports

that finding. It provides “Any person who is injured . . . may sue in any court of

competent jurisdiction . . .” La.R.S. 51:137. This clearly allows “any person” that

is “injured” to sue, not just direct purchasers. As the State points out, allowing

indirect purchasers to bring suit under antitrust laws (which is a common practice in

numerous states) would not lead to any absurd consequences.

21 The State also maintains the LMA should be read in pari materia with

LUTPA, as both deal with unfair methods of competition. Just as La.R.S. 51:137

does in the LMA, La.R.S. 51:1409 of LUTPA provides a right of action to any

person, natural or juridical, who suffers an ascertainable loss as a result of another

person’s use of unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce. Further, the Louisiana Supreme

Court, in Cheramie Servs. Inc. v. Shell Deepwater Prod., Inc., 09-1633, p. 7

(La.4/23/10), 35 So.3d 1053, 1057-58, rejected jurisprudential limitations on the

meaning of the word “person,” stating:

An evaluation of the words of this statute leads to the conclusion that, consistent with the definition and usage of the word “person,” there is no such limitation on those who may assert a LUTPA cause of action. Any such limitation that has found its way into the jurisprudence resulted without proper analysis of the statute. . . .

Based on the language of the statute, which does not contain a clear, unequivocal and affirmative expression that the private right of action provided in LSA-R.S. 51:1409(A) extends only to business competitors and consumers, LUTPA does not exclude other persons who assert a “loss of money or ... property ... as a result of the use or employment by another person of an unfair or deceptive method, act, or practice.” Contrary holdings are hereby repudiated, because any limitation must be contained in the language of the statute.

Lastly, the State says this interpretation squares with the legislative history of

the LMA. It points to an analysis in the William Mitchell Law Review, in an article

entitled “Your Honor, Tear Down That Illinois Brick Wall! The National Movement

Toward Indirect Purchasers Antitrust Standing and Consumer Justice,” where it was

explained that the Louisiana legislature back in 1890 (when Louisiana first adopted

antitrust legislation) could not have possibly intended to preclude indirect purchasers

from a right of action to bring claims:

Given Illinois Brick’s nonexistence at the time the Louisiana Act was enacted and that indirect purchasers could freely pursue federal

22 antitrust claims at that time, the Louisiana Legislature’s intent could not have been to preclude indirect purchasers from pursuing price fixing claims. Authority suggesting such preclusion would not exist for almost another hundred years. Because the Louisiana Legislature’s 1890 antitrust legislation did not specifically limit standing to direct purchasers (nor has it since, for that matter), the term “person” cannot be taken to preclude indirect purchasers, but must instead be read to include them. Thus, if the term “any person” was even subject to judicial interpretation, the Act could only be taken to confer natural persons antitrust standing, as they had standing at the time the Louisiana Act was enacted.

Accordingly, we find no error in the trial court’s finding that neither the LMA

nor LUTPA prevents the State from having a right of action to bring a claim as an

indirect purchaser. Louisiana courts are bound to “give effect to all parts of a statute

and should not give a statute an interpretation that makes any part superfluous or

meaningless, if that result can be avoided.” McLane S., Inc. v. Bridges, 11-1141, pp.

6-7 (La. 1/24/12), 84 So.3d 479, 483. Further, “[w]hen a law is clear and

unambiguous and its application does not lead to absurd consequences, the law shall

be applied as written and no further interpretation may be made in search of the

intent of the legislature.” La.Civ.Code art. 9. The LMA’s plain wording does not

exclude any class of “person injured,” nor require a person must have been directly

injured.

3. The trial court erred in failing to dismiss the State’s LMA claims for no right of action to pursue a claim under the LMA on behalf of LDH and any other unnamed independent state agency because the State lacks a right of action to bring such claims.

In this assignment of error, the AbbVie Defendants contend the State is not

authorized to pursue these claims under the LMA. They base this argument on the

belief that the State lacks a right of action to bring such claims under the Louisiana

Supreme Court’s holding in State ex rel. Caldwell v. Molina Healthcare, Inc., 18-

1768 (La. 5/8/19), 283 So.3d 472. The AbbVie Defendants assert that under Molina,

23 the Louisiana Department of Health (LDH), as an independent agency with the

capacity to sue and be sued, is the appropriate party to bring any claims for alleged

damages under the LMA. We disagree.

The AbbVie Defendants seem to take the position that because certain

provisions of the LMA specifically grant certain powers to the Attorney General

(La.R.S. 51:128 authorizes the Attorney General to “institute proceedings to prevent

and restrain violations” of the LMA; La.R.S. 51:138 provides that “[a]ll suits for the

enforcement of this Part shall be instituted in the district courts by the Attorney

General, on his own motion”), the fact that La.R.S. 51:137 provides for “any person”

to seek damages without reference to the State or Attorney General specifically is

telling. We disagree with Defendants’ belief that because the LMA gives specific

additional powers to the State and Attorney General, that this somehow deprives the

State of the rights the LMA provides to “any person” to seek damages. The LMA

clearly provides the right to seek damages to “any person” and the State is under the

law a person. Louisiana Civil Code Article 450 (emphasis added) provides that

“Public things are owned by the state or its political subdivisions in their capacity

as public persons.” Louisiana Civil Code Article 453 (emphasis added) provides

that “Private things are owned by individuals, other private persons, and by the state

or its political subdivisions in their capacity as private persons.” In this case, the

State has been “injured” and is seeking damages as a result of that injury. Therefore,

the State is not prevented from bringing an action for damages under the LMA.

The State also takes issue with the AbbVie Defendants’ contention that the

State seeks to recover funds on behalf of LDH. The State maintains it has never

taken this position because none of the funds it seeks to recover were ever the distinct

property of LDH, never part of LDH’s budget, and were at all times part of the

24 State’s general fund. Thus, the State is the proper party to bring the claims alleged

in the Petition. The trial court did not err in concluding the “State is the real party

in interest to bring these actions.” The State, through the filing of this Petition, seeks

to recover the overpayment of state funds, money that came from its general fund.

The Medicaid program is funded by both state and federal funds. The State has an

absolute and real interest in recovering the funds lost by the overpayment alleged in

the Petition.

4. The trial court erred in failing to dismiss the State’s LMA claims based on prescription which properly belongs to LDH or other independent agencies.

The AbbVie Defendants filed an Exception of Prescription on the basis that

LDH and other independent agencies were the proper parties to bring this suit, and

that prescription has long run on a civil action against any potential state agencies.

However, with the trial court’s finding, and this court’s affirmation, that the State is

the proper party to bring this suit, this argument is without merit. Pursuant to

La.Const. art. 12, § 13, “Prescription shall not run against the State in any civil

matter, unless otherwise provided in this Constitution or expressly by law.”

Therefore, the exception of prescription was properly denied.

5. The trial court erred in failing to dismiss all claims on behalf of unnamed state agencies as vague because the AbbVie Defendants cannot determine the claims brought against them and for what reasons.

The AbbVie Defendants contend the trial court manifestly erred in overruling

their Exception of Vagueness as to the unnamed “other state agencies” on whose

behalf it asserts the State is bringing these claims. As discussed above, the State is

not asserting it is bringing any claim on behalf of any state agency. Rather, the State

asserts its claim in its own right, pursuant to La.R.S. 51:137 of the LMA. Thus, this

argument is without merit.

25 The AbbVie Defendants also argue the Petition is impermissibly vague

because they “cannot raise an exception under Molina that the claims properly

belong to independent state agencies (against whom the prescriptive period has run).

They assert they cannot “target discovery to defend themselves without knowing

which state agencies are at issue.” As the State notes in brief, this is an issue that

can be addressed in the discovery process and is not something that requires the

amendment of the pleadings through a vagueness exception. This assignment of

error is without merit.

6. The trial court erred in failing to dismiss the LMA claims brought against AbbVie, Inc., Allergan, PLC, Actavis, Inc., and Actavis, PLC for failure to state a cause of action because the Petition contains no allegations relating to these entities or allegations sufficient to state a prima facie case of successor liability.

7. The trial court erred in failing to find that the State’s allegations as to the LMA claims against Allergan, PLC, Actavis, Inc., Actavis, PLC, and AbbVie, Inc. were impermissibly vague.

The AbbVie Defendants’ last two assignments of error pertain to the

sufficiency of the pleadings against various corporate affiliates, in particular

AbbVie, Inc., Allergan, PLC, Actavis, Inc., and Actavis, PLC. The primary

contention in their argument is that the trial court’s “reliance upon conclusory

allegations as to ‘all defendants’—without any factual allegations as to what these

entities did—was error.”

A review of the State’s Petition reveals it alleges in detail Defendants’ alleged

conduct in their involvement in a conspiracy to inflate prescription drug prices in

Louisiana by agreeing to delay the introduction of the generic equivalent to Loestrin

into the Louisiana market. It is then set out in detail how these activities constituted

illegal anticompetitive practices that led to an overpayment for the drug by the State

of Louisiana, particularly through its Medicaid program. As the State notes,

26 La.Code Civ.P. art. 891, which deals with the form of a petition, requires that “[t]he

petition . . . shall contain a short, clear, and concise statement of all causes of action

arising out of, and of the material facts of, the transaction or occurrence that is the

subject matter of the litigation.” Ou review of the State’s petition shows it clearly

complies with the standards of La.Code Civ.P. art. 891.

Defendants’ argues the State engaged in “group pleading” and did not

separately set out facts that applied to each individual defendant. The trial court

addressed this argument in its written reasons for judgment, finding the State’s

petition “alleges agreements, acquisitions and mergers by and among the defendants

that may be sufficient to support a cause of action under a theory of successor

liability or contract law.” The State maintains its method of pleading in its petition

is not legally deficient, particularly contending there are circumstances present

which prevent it from knowing the exact role of each defendant in the conspiracy

alleged. They cite to Peters v. Amoco Oil Co., 57 F.Supp.2d 1268, 1277 (M.D. Ala.

1999) wherein the federal court reasoned:

there are circumstances under which “a plaintiff may not be able to plead the precise role of each defendant when a group of defendants has acted in concert to cause the complained of injury.” Jackson v. First Fed. Sav., 70 F.Supp 863, 878 (E.D.Ark. 1988). Under such circumstances, “it is appropriate to plead the actions of the group and leave development of individual liability questions until some discovery has been undertaken, rather than to dismiss the plaintiff because he does not have what may be concealed information.” Id.; see also In re AnnTaylor Stores Securities Litig., 807 F.Supp. 990 (S.D.N.Y. 1992).

We agree with this analysis, and it cannot be expected for the State, prior to full

discovery being completed, to know which of the several entities involved in this

litigation is specifically responsible for the conduct alleged in the Petition. The facts

alleged in the State’s Petition are sufficient to put each named defendant on notice

27 of their potential liability and potential defenses. Therefore, we affirm the trial

court’s denial of the exceptions of no cause of action and vagueness as to these

particular defendants.

Assignment of Error as to the State’s MAPIL Claim.

In their writ application, which was not specifically addressed in their

appellate brief, Defendants asserted the trial court erred in denying the Exception of

No Cause of Action under MAPIL. Louisiana Revised Statutes 46:438.3 provides

in pertinent part:

A. No person shall knowingly present or cause to be presented a false or fraudulent claim.

B. No person shall knowingly engage in misrepresentation or make, use, or cause to be made or used, a false record or statement material to a false or fraudulent claim.

C. No person shall knowingly make, use, or cause to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the medical assistance programs, or to knowingly conceal, avoid, or decrease an obligation to pay or transmit money or property to the medical assistance programs.

D. No person shall conspire to defraud, or attempt to defraud, the medical assistance programs through misrepresentation or by obtaining, or attempting to obtain, payment for a false or fraudulent claim.

The trial court acknowledged in its reasons for judgment, that the State does

not allege that a healthcare provider or a billing agent knowingly submitted a false

claim. On this basis alone, Defendants maintain “the trial court’s decision must be

reversed and the MAPIL claim dismissed. We disagree.

A claim under MAPIL may also exist if a defendant conspired or attempted

to defraud Medicaid through misrepresentation or by obtaining or attempting to

obtain payment for a false or fraudulent claim. See La.R.S.46:438.3(D). This is the

basis for the trial court’s denial of the Exception of No Cause of Action, as it found

28 “the State does sufficiently allege that claims were submitted that were ‘part of a

pattern [by Defendants] of incorrect submissions in regard to material information

or which is otherwise part of a pattern in violation of applicable federal or state law

or rule.’” As the State’s Petition set forth a MAPIL claim under the plain wording

of the statute, the trial court properly denied the Exception of No Cause of Action.

DECREE

For the foregoing reasons, the trial court’s January 24, 2025 judgment

overruling all exceptions filed by Defendants is affirmed. Costs of this appeal are

assessed equally between Lupin Pharmaceuticals, Inc. and the AbbVie Defendants.

AFFIRMED; WRITS DENIED.