MSP Recovery Claims, Series LLC v. Actelion Pharmaceuticals US, Inc.

1

2 UNITED STATES DISTRICT COURT

3 NORTHERN DISTRICT OF CALIFORNIA

4

5 MSP RECOVERY CLAIMS, SERIES LLC, Case No. 22-cv-07604-JSC

et al.,

6

Plaintiffs, ORDER RE: MOTION TO DISMISS

7

v. Re: Dkt. No. 43

8

ACTELION PHARMACEUTICALS US,

9 INC., et al.,

Defendants.

10

11

12 This lawsuit concerns an alleged scheme to raise prices for defendant Actelion

13 Pharmaceuticals’ pulmonary hypertension drugs. Plaintiffs are a series of entities (collectively,

14 “MSP entities”). Plaintiffs buy “claims” from insurers that participate in the Medicare system and

15 attempt to collect on those claims through various legal means. Here, Plaintiffs allege Defendants

16 violated the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.

17 §§ 1962, 1964, along with various state laws. Defendant Actelion moves to dismiss. After

18 carefully reviewing the voluminous briefing in this matter and conducting oral argument on

19 August 3, 2023, the Court GRANTS Actelion’s motion to dismiss with leave to amend in part.

20 Plaintiffs have not plausibly alleged their receipt of valid assignments of causes of action.

21 AMENDED COMPLAINT ALLEGATIONS

22 Defendant Actelion is a pharmaceutical company. (Dkt. No. 38 ¶ 46.) Actelion

23 manufacturers and markets drugs used to treat hypertension, such as Tracleer, Opsumit, Veletri,

24 and Ventavis. (Id. ¶¶ 1, 46.) Plaintiffs describe themselves as “companies that assist Government

25 Healthcare Plans in detecting claims payments that are subject to reimbursement[.]” (Id. ¶ 29.)

26 Medicare is a government health-insurance program that primarily covers people aged 65

27 and over and others with certain disabilities or illnesses. Medicare consists of five parts: A

1 provided by private insurance companies—referred to as “Medicare Advantage”), D (prescription

2 drug coverage), and E (miscellaneous provisions). (Id. ¶ 75). Like Part C, Medicare Part D is

3 based on a private-market model, in which Medicare contracts with private entities, known as Part

4 D “sponsors.” (Id. ¶ 77.)

5 Sponsors administer prescription drug plans. Plan sponsors must provide qualified

6 prescription drug coverage. (Id.) A Part D sponsor submits a “bid” to the Centers for Medicare

7 and Medicaid Services (“CMS”) the year before it is to deliver Part D benefits. (Id.¶ 78.) The bid

8 contains a per member, per month cost estimate for providing Part D benefits to an average

9 Medicare beneficiary in the geographic area. (Id.) CMS then provides each Part D plan sponsor

10 with advance monthly payments equal to the Part D plan sponsor’s standardized bid. (Id. ¶ 79.)

11 After the close of each plan year, CMS determines “whether sponsors have been overpaid or

12 whether Medicare owes them money” through a process called “reconciliation.” (Dkt. No. 45-16

13 at 51; see also United States ex rel. Baer v. Ludden, No. 13-CV-223-JDP, 2016 WL 1259432, at

14 *1 (W.D. Wis. Mar. 30, 2016) (taking judicial notice of the congressional research reports

15 concerning how Medicare operates when, as here, both parties cited the same reports)).

16 Medicare limits plan sponsors’ potential losses, or gains, by financing some higher-than-

17 expected costs or recouping some excessive profits, relative to the amount the plan originally bid

18 to offer Part D. (Dkt. No. 45-16 at 51-52.) For example, a plan that had higher-than-expected

19 costs in 2021 was required to cover all benefit spending up to 105% of its standardized bid. (Id.)

20 A plan with costs above 105% and up to 110% of its bid covered 50% of the costs within that

21 range, and CMS paid the other 50%. (Id.) The same applies for the savings. A plan with costs

22 amounting to 95% of its bid could keep all of the savings. (Id.) And so on.

23 Patient Assistance Programs

24 To buy prescription drugs, Part D plans generally require patients pay an out-of-pocket

25 price, commonly known as “co-pay.” (Dkt. No. 38 ¶ 18.) Once the co-payment is made,

26 pharmacies bill the sponsor (the “third party payor”) for the full drug cost. (Id. ¶ 5.) However,

27 because many patients cannot afford co-pays, “patient assistance programs” help financially needy

1 These arrangements are susceptible to abuse. In short, a pharmaceutical company could

2 manipulate the market for its own drugs by paying the co-payments for patients (through an

3 intermediary patient assistance program), only to then reap the larger financial reward (the full

4 sale price). By one estimate, for every $100 million given to a patient assistance program,

5 pharmaceutical manufacturers yield $1 billion in increased sales. (Id. ¶ 74.) The Anti-Kickback

6 Statute, 42 U.S.C. § 1320a-7b, prohibits pharmaceutical companies from paying remuneration to

7 induce Medicare beneficiaries to purchase, or their physicians to prescribe, drugs that are

8 reimbursed by Medicare.

9 Defendant Caring Voice Coalition, (“Caring Voice”), was a patient assistance program.

10 The Department of Health and Human Services’ Office of the Inspector General issued an

11 advisory letter to patient assistance programs like Caring Voice, setting forth certain requirements

12 to avoid Anti-Kickback Statute liability. (Id. ¶ 106.) In 2006 and 2014, Caring Voice certified it

13 would comply with those regulations. (Dkt. No. 38-28; Dkt. No. 38-29.) Based on those

14 representations, the HHS Inspector General issued an advisory opinion to Caring Voice

15 “certifying” its patient assistance program. (Id.)

16 The DOJ Settlement

17 Between 2006 and 2017, Actelion gave Caring Voice $270 million. (Dkt. No. 38 ¶ 165.)

18 Caring Voice, in turn, helped patients afford co-pays for drugs—including Actelion’s drugs. (Id.

19 ¶ 149.) After an investigation, the United States Department of Justice alleged Actelion engaged

20 an illegal kickback scheme through its relationship with Caring Voice and certain pharmacies.

21 (See Dkt. No. 38-2.) The Department of Justice contended:

22

Actelion made donations to [Caring Voice’s Pulmonary Arterial

23 Hypertension] fund and used it as a conduit to pay the copay

obligations of thousands of Medicare patients taking the Subject

24 Drugs and to induce those patients’ purchases of the Subject Drugs,

because it knew that the prices Actelion set for the Subject Drugs

25 otherwise could pose a barrier to those purchases. From January 1,

2014, through August 2015, Actelion routinely obtained data from

26 [Caring Voice] detailing how many patients on each Subject Drug

[Caring Voice] had assisted, how much [Caring Voice] had spent on

27 those patients, and how much [Caring Voice] expected to spend on

Actelion used this information to budget for future payments to

1 [Caring Voice] on a drug-specific basis and to confirm that its

contribution amounts to [Caring Voice] were sufficient to cover the

2 copays of patients taking the Subject Drugs, but not of patients taking

other manufacturers’ [Pulmonary Arterial Hypertension] drugs.

3 Actelion engaged in this practice even though [Caring Voice] warned

the company against receiving data concerning [Caring Voice’s]

4 expenditures on copays for the Subject Drugs.

5 (Id. at 2 ¶ E.) During that same period, according to the government, Actelion did not permit

6 Medicare patients to participate in its free drug program—which was open to other financially

7 needy patients. (Id.) Rather, Actelion directly referred Medicare patients to Caring Voices. (Id.)

8 The government’s allegations covered conduct that ended “prior to the acquisition of Actelion by

9 Johnson & Johnson on June 16, 2017.” (Id.)

10 Actelion and the United States settled in December 2018. Actelion paid the United States

11 over $360 million. (Id. ¶ 1.)

12 Plaintiffs’ Assignments

13 Plaintiffs “obtain[] assignments from their Assignors to recover reimbursement or payment

14 from Defendants for the claims paid as a result of Defendants’ fraud, waste, and abuse.” (Dkt. No.

15 38 ¶ 29.) The “Assignors” here are health insurers, pursuant to Medicare Part C and Part D, which

16 made payments “on behalf of, or otherwise became financially responsible for the cost of illegally

17 inflated,[Anti-Kickback Statute]-tainted, and excessively dispensed Actelion Drugs as a result of

18 the Scheme.” (Id.)

19 Plaintiffs’ amended complaint attaches five “representative” assignment agreements. (Dkt.

20 No. 38-47.) The named assigning organizations are: Centro de Pediatria y Medicina de Familia de

21 Villalba, C.S.P., Health First Administrative Plans, IMC, Sal Health Group, LLC, d/b/a Salubris,

22 and SummaCare. (Id.) The agreements include broad, general language assigning “all” claims to

23 various MSP entities. (See Dkt. No. 38-47.)

24 The assignment agreements include various chains that start with the assigning

25 organizations and end with various MSP entities. (Id.) The assignment chains go as follows:

26 • Centro de Pediatria assigned claims to “Series 21-04-1561, a designated series of MSP

27 Recovery Claims PROV Series LLC,” (Id. at 1-9.)

1 assigned those claims to “Series 16-05-456,” which in turn assigned the claims to “Series

2 44-20-456, a designated series of MSP Recovery Claims Series 44,” (Id. at 10-29.)

3 • IMC assigned claims to “MSP Recovery, LLC” which further assigned “IMC, LLC”

4 claims to “MSPA Claims 1, LLC,” (Id. at 33-45, 47-50.)

5 • Salubris assigned claims to “Series 19-10-1128, a designated series of MSP Recovery

6 Claims, CAID Series, LLC,” (Id. at 52-62.)

7 • SummaCare assigned claims to “MSP Recovery LLC” to “Series 16-11-509 LLC, a series

8 of MSP Recovery Claims Series LLC” (Id. at 63-81.)

9 Of the eventual recipients at the end of these assignment chains, only MSPA Claims 1 (which

10 received claims from IMC) is a named plaintiff in this action. The “Series” entities are not

11 plaintiffs here. But they assert they are, in turn, “series” of other LLCs that are plaintiffs here—

12 like MSP Recovery Claims Series 44, MSP Recovery Claims PROV, MSP Recovery Claims

13 Series LLC, and of MSP Recovery Claims, CAID Series. Plaintiffs provide an operating

14 document for MSP Recovery Claims Series 44 and Series 44-20-456. (Dkt. No. 38-47 at 23-25.)

15 That document indicates the “Company,” Plaintiff MSP Recovery Claims Series 44, can sue on

16 behalf of the “Series,” Series 44-20-456. (Id. at 24 ¶ 2.) Except for MSPA Claims 1, Plaintiffs

17 allege each plaintiff has an operating agreement that allows the establishment of designated series

18 and allows the company to sue on behalf of that series. (Dkt. No. 38 ¶¶ 32, 37, 40, 43.) MSPA

19 Claims 1 purportedly owns the assigned claims and is not suing on behalf of a series entity.

20 Plaintiffs’ Allegations

21 Plaintiffs allege Defendants executed a co-payment circumvention scheme to reduce price

22 sensitivity, fix supra competitive prices, and induce more dispensing of Actelion’s drugs. (Dkt.

23 No. 38 ¶¶ 2-3.) According to Plaintiffs, Actelion gave money to Caring Voice which, in turn,

24 funneled money to “specialty pharmacies.” (Id. ¶ 5, 212.) Actelion received information from

25 Caring Voice regarding how many patients Caring Voice assisted in buying Actelion’s drugs.

26 (Id.) And, based on that data, Actelion decided how much to give in “donations” to Caring Voice.

27 (Id.) The assignors—who manage Medicare Advantage and Medicaid Plans—bore the cost of the

1 Plaintiffs claim their “‘assignors” paid $42 million in claims between 2006 and the present

2 || for Actelion drugs. (Ud. 465.) They allege their assignors would not have paid for the drugs had

3 they known of the kickback scheme, because the kickback scheme violated Medicare regulations.

4 Ud. § 243.) These transactions, they state, occurred in 21 states and territories. Ud. 4 66.)

5 Plaintiffs do not claim that amount is limited to just the five assignors named in attachments to the

6 FAC. But Plaintiffs allege some portion of that $42 million represents prescription

7 reimbursements for which Caring Voice paid the corresponding co-pay. (See Dkt. No. 38-40.)

8 Based on Caring Voice’s documents, Plaintiffs also attach a spreadsheet identifying

9 “dozens of Enrollees that 1) received prescriptions and dispensed drugs because of the Co-

10 || Payment Circumvention Scheme; and 2) involved claims tied to direct payments from Plaintiffs’

11 Assignors (and Class Members) to Defendants and the conspiring Specialty Pharmacies.” (Dkt.

a 12 || No. 38 § 68; Dkt. No. 38-40.) The spreadsheet contains data similar to the rows in the following

13 table:

© fs LL | fey sms □□ ue) Us ee erodes alah ed ee

1S 19953314

18249701

16 27934701

21784249

21282295

18 || (Dkt. No. 38-40.) Plaintiffs explain:

19 Many of the claims identified in Exhibit 39 relate to instances where

the conspiring Specialty Pharmacies referred certain Enrollees

20 to[Caring Voice], resulting in payments from Defendants to the

Specialty Pharmacies, culminating in the use of mail and wire by the

21 Specialty Pharmacies to submit claims and false certifications to

Plaintiffs’ Assignors and Class Members.

23 (Dkt. No. 38 § 69.) Actelion, they allege, had “control” over the specialty pharmacies and Caring

24 || Voice, by providing funding, training, referrals, and advertising material. (/d. 471.)

25 Plaintiffs filed this putative class-action on December 2, 2022. (Dkt. No. 1.) Against

26 || Actelion, Plaintiffs asserted federal RICO and RICO conspiracy claims; a Florida state RICO

27 claim; claims under the consumer protection statutes of 11 states; California common law fraud,

28 || and unjust enrichment in 10 states. Actelion moves to dismiss. (Dkt. No. 43.)

1 DISCUSSION

2 I. Assignment Standing

3 Actelion challenges Plaintiffs’ assignment-based standing on two grounds. First, Actelion

4 argues some of Plaintiffs’ claims are not assignable as a matter of law. Alternatively, Actelion

5 argues that Plaintiffs fail to plausibly plead valid assignment-based standing here.

6 A. Are Plaintiffs’ Claims Assignable?

7 1. RICO

8 The Racketeer Influenced and Corrupt Organizations Act (“RICO”) includes a civil

9 remedy provision that allows private parties to sue for injuries to their “business or property”

10 caused “by reason of” a defendant’s violation of RICO. That civil remedy provision states:

11 Any person injured in his business or property by reason of a violation

of section 1962 of this chapter may sue therefor in any appropriate

12 United States district court and shall recover threefold the damages

he sustains and the cost of the suit, including a reasonable attorney’s

13 fee…

14 18 U.S.C. § 1964(c). Actelion argues civil RICO claims are not assignable; in other words, only

15 the person (or corporation) “injured in his business or property” can sue. Applied here, that would

16 mean the ultimate assignors (the insurers) have RICO standing to sue. But downstream purchasers

17 of those RICO claims cannot sue because Congress delineated a personal right, not an assignable

18 one.

19 Every court considering the matter has held RICO claims assignable.1 Generally, courts

20 reason by analogy to federal antitrust law. See Lerman v. Joyce Int’l, Inc., 10 F.3d 106, 112 (3d

21 Cir. 1993) (assuming the assignment of RICO claims must be express since the assignment of

22 federal antitrust claims must be express). The Sherman Act, 15 U.S.C. § 15, and the Civil RICO

23

1 See, e.g., Fed. Ins. Co. v. Parello, 767 F. Supp. 157, 163 (N.D. Ill. 1990) (“There is very little

24

room to argue that Congress would intend to allow the assignment of antitrust claims and would

prohibit the assignment of RICO claims.”); In re Nat’l Mortg. Equity Corp. Mortg. Pool

25

Certificates Sec. Litig., 636 F. Supp. 1138 (C.D. Cal. 1986) (because antitrust damages claims are

assignable and the goals of the RICO and antitrust statutes are similar—deterring interference with

26

free competition—RICO claims are similarly assignable); Nicolls Pointing Coulson Ltd. v.

Transp. Underwriters of La., Inc., 777 F. Supp. 493 (E.D. La. 1991) (RICO claims assignable);

27

Resolution Trust Corp. v. S & K Chevrolet, 868 F. Supp. 1047, 1054 (C.D. Ill. 1994) (“RICO

1 provisions in 18 U.S.C. § 1964(c) contain the same language. Because courts universally allow

2 assignment of antitrust claims, RICO claims are viewed as assignable as well. See also In re

3 National Mortgage Equity Corp. Mortgage Pool Certificates Securities Litigation, 636 F. Supp.

4 1138, 1155–56 (C.D.Cal.1986) (finding, in a commonly cited opinion, RICO claims assignable

5 based on RICO’s “remedial,” as opposed to punitive, aims).

6 The Ninth Circuit has not spoken directly on the issue. Actelion argues Silvers v. Sony

7 Pictures Entertainment., Inc., 402 F.3d 881, 883 (9th Cir. 2005) (en banc), compels the conclusion

8 RICO claims are not assignable. In Silvers, the owner of a television movie script assigned to the

9 scriptwriter (who had no ownership in the script because it was a work-for-hire) “all right, title and

10 interest in and to any claims and causes of action” against certain entities that had allegedly

11 infringed the television script copyright; that is, it assigned the bear right to sue. The scriptwriter

12 then sued Sony for copyright infringement of the script. Sony moved to dismiss on the grounds

13 the scriptwriter did not have standing to sue since she did not own the copyright. After the district

14 court denied the motion, the Ninth Circuit heard the issue on interlocutory appeal.

15 The en banc court began its analysis with an analysis of the copyright statute: “Copyright .

16 . . is a creature of statute, and the only rights that exist under copyright law are those granted by

17 statute.” Id. at 883-84. It explained the statute “establishes who is legally authorized to sue for

18 infringement of a copyright: The legal or beneficial owner of an exclusive right under a

19 copyright.” Id. at 884. Thus, reasoned the court, the statute’s meaning is clear: “To be entitled to

20 sue for copyright infringement, the plaintiff must be the ‘legal or beneficial owner of an exclusive

21 right under a copyright.’” Id. Because the plaintiff was not the owner of an exclusive right under

22 the script’s copyright—and merely purchased a bare right to sue—the statute did not give the

23 plaintiff standing to sue. Id. at 885.

24 The court recognized the statute does not say “that only a legal or beneficial owner of an

25 exclusive right is entitled to sue.” Id. It nonetheless reasoned:

26 under traditional principles of statutory interpretation, Congress'

explicit listing of who may sue for copyright infringement should be

27 understood as an exclusion of others from suing for infringement. The

designates certain persons, things, or manners of operation, all

1 omissions should be understood as exclusions.”

2 Id. The court concluded “[t]here are two particularly important reasons to apply such a

3 presumption” to the Copyright Act. First: “Copyright is a creature of statute, so we will not lightly

4 insert common law principles that Congress has left out.” Second, the provision providing the

5 right to sue also limited the cause of action to the person who owned the copyright when the

6 infringement occurred. Id.

7 Actelion argues the same principle applies to the RICO statute. It is a creature of statute,

8 and so the standing question should begin with the statute’s language. The statute gives a private-

9 right-of-action to specific persons: those “injured in [their] business or property by reason of a

10 statutory violation.” 18 U.S.C. § 1964(c). Because Plaintiffs do not own the business or property

11 injured by Actelion’s conduct, Actelion reasons Plaintiffs do not have standing to bring RICO

12 claims notwithstanding the alleged assignment of the bare right to bring suit.

13 The argument has some force, but, as the Court observed at oral argument, the parties’

14 briefs on the issue do not meet. Actelion does not address the cases holding RICO assignable and

15 Plaintiffs do not address Silvers. To adequately analyze this question further briefing is required.

16 Because, as discussed below, there are other issues with Plaintiffs’ standing, the Court need not

17 resolve the question at this time. But if a new motion to dismiss is filed, the parties should more

18 thoroughly address the assignability of RICO claims.

19 2. The Consumer Protection Claims

20 Defendants move to dismiss the consumer protection claims on similar grounds. For

21 example, Plaintiffs bring a claim under California’s Unfair Competition Law (“UCL”). Cal. Bus.

22 Code §§ 17000, et seq. But California UCL claims are not assignable. Amalg. Transit Union,

23 Local 1756, AFL-CIO v. Superior Ct., 46 Cal. 4th 993, 1000-02 (2009). Defendants do not cite

24 specific cases for every state law Plaintiffs invoke. Instead, they argue a presumption against

25 assignability should apply to the remaining state consumer protection claims.

26 As an initial matter, Plaintiffs make no effort to defend the assignability of their consumer

27 protection claims based on California’s UCL. Nor do Plaintiffs defend the claims under Puerto

1 standing, those claims are dismissed. That leaves consumer protection claims under Connecticut,

2 Florida, Illinois, Massachusetts, Michigan, New York, Ohio, and Wisconsin law.

3 Plaintiffs’ attempts to show assignability for these laws are suspect. For example,

4 Plaintiffs cite the Connecticut Supreme Court, in Stearns & Wheeler, LLC v. Kowalsky Bros., Inc.,

5 955 A.2d 538 (Conn. 2008) for the proposition that Connecticut Unfair Trade Practices Act claims

6 are assignable. (See Dkt. No. 51 at 28 n.20.) But Stearns & Wheeler did not reach the issue of

7 assignability. Stearns & Wheeler, 955 A.2d 543 at n.12. Indeed, the Connecticut Supreme Court

8 noted its concern regarding “the temptation for unscrupulous interlopers and litigious persons” and

9 “policies against trafficking in personal claims and excessive litigation.” Id. (cleaned up).

10 Applied here, the Court would assume such claims are not assignable. But chasing down

11 Plaintiffs’ remaining citations to see if they are more persuasive than Stearns & Wheeler is

12 unnecessary.

13 Even assuming Plaintiffs could show assignability, the Court declines to wade further into

14 complex issues of state law at this stage as Plaintiffs do not allege facts that plausibly suggest any

15 of these states’ laws apply. Taking Plaintiffs’ allegations under Connecticut law as an example,

16 Plaintiffs plead:

17 364. Defendants’ conduct occurred in “trade” or “commerce” within

the meaning of Conn. Gen. Stat. § 42-110a(4) (“Connecticut UTPA”).

18

365. The Connecticut UTPA provides that “no person shall engage in

19 unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce.” Conn. Gen. Stat.

20 § 42-110b(a).

21 366. Defendants’ conduct constitutes “unfair or deceptive” acts in

violation of the Connecticut UTPA.

22

367. Defendants’ illegal conduct substantially affected Connecticut

23 commerce and consumers.

24 368. Assignors and the Class Members suffered injury-in-fact,

ascertainable loss, and actual damages as a direct and proximate result

25 of Defendants’ unfair and deceptive practices and omissions and/or

misrepresentations, at a minimum, in the form of increased payments

26 for the Actelion Drugs herein.

27 369. Defendants’ conduct alleged in this Complaint occurred

370. Plaintiffs’ analysis of its Assignors’ data identified one or more

1 purchases of the Actelion Drugs in the State of Connecticut.

2 371. Simultaneously with the filing of this Complaint, Plaintiffs

served a copy on the Attorney General and Commissioner of

3 Consumer Protection pursuant to Conn. Gen. Stat. § 42-110g.

4 372. Plaintiffs are entitled to recover their actual damages, punitive

damages, and attorneys’ fees pursuant to Conn. Gen. Stat. § 42-110g.

5

6 (Dkt. No. 38 ¶¶ 364-372.) And so on, for each additional state law claim.

7 A “formulaic recitation of a cause of action’s elements will not do.” Bell Atl. Corp. v.

8 Twombly, 550 U.S. 544, 545 (2007). The allegation, for example, that “Defendants illegal conduct

9 substantially affected Connecticut commerce and consumers” is a conclusion, not a fact. What

10 good-faith basis is that statement based on? The claims data provided in the complaint do not list

11 sales by state. Plaintiffs’ other state law claims fair no better. Each is merely a recitation of the

12 elements of the cause of action.

13 So, assuming (without deciding) each state law invoked allows assignment of claims, the

14 consumer protection claims are dismissed under Federal Rule of Civil Procedure 12(b)(6) for

15 failure to state a claim. See MSP Recovery Claims, Series LLC v. Abbott Laboratories, No. CV-

16 19-21607-FLW-ZNQ, 2021 WL 2177548, at *10 (D.N.J. May 28, 2021) (deferring ruling on

17 assignability given “cursory” briefing from defendants). Should Plaintiffs allege these claims in

18 an amended complaint, the Court will revisit the assignability issue for states other than

19 California.

20 B. Do Plaintiffs Adequately Plead Assignment Standing?

21 Assuming, without holding, Plaintiffs plead at least some assignable claims, the next

22 question is whether Plaintiffs adequately plead assignment here. Because “standing is an essential

23 and unchanging part of the case-or-controversy requirement of Article III,” federal courts cannot

24 exercise jurisdiction over parties that lack standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555,

25 560 (1992). “The party invoking federal jurisdiction bears the burden of establishing” standing at

26 each stage in legal proceedings. Id. at 561. This requires a plaintiff show, among other things,

27 that it “suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete

1 up).

2 In general, “the assignee of a claim has standing to assert the injury in fact suffered by the

3 assignor.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 286 (2008) (citation

4 omitted). But the Court must guard the standing requirement carefully in the assignment context.

5 In re Brooms, 447 B.R. 258, 265 (9th Cir. 2011) (“In an action involving an assignment, a court

6 must ensure that the plaintiff-assignee is the real party in interest with regard to the particular

7 claim involved by determining: (1) what has been assigned; and (2) whether a valid assignment

8 has been made.”).

9 Applying these principles, Plaintiffs must plead facts that—when taken as true—support a

10 plausible inference (1) the ultimate assignors suffered an injury-in-fact, and (2) the assignors’

11 claim arising from that injury was validly assigned to Plaintiffs. MSPA Claims 1, LLC v. Tenet

12 Fla., Inc., 918 F.3d 1312, 1317-18 (11th Cir. 2019) (citing Sprint, 554 U.S. at 289).

13 1. Unpled Assignors

14 Plaintiffs lack standing to bring claims on behalf of unpled “assignors” based on

15 “representative” assignments. “Standing ‘is not dispensed in gross’; instead, ‘a plaintiff must

16 demonstrate standing for each claim he seeks to press and for each form of relief that is sought.’”

17 MAO-MSO Recovery II, LLC v. Mercury Gen., No. 21-56395, 2023 WL 1793469, at *2 (9th Cir.

18 Feb. 7, 2023) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)). Here,

19 Plaintiffs seek standing in gross for unnamed assignors. That is insufficient. If Plaintiffs seek to

20 pursue claims based on valid assignments, Plaintiffs must plead which assignors’ claims they seek

21 to vindicate. In re Brooms, 447 B.R. 258, 265 (9th Cir. 2011).

22 An assignee “stand[s] in the shoes” of the assignor. MAO-MSO Recovery II, LLC v. State

23 Farm Mut. Auto. Ins. Co., 935 F.3d 573, 578 (7th Cir. 2019). To prove Plaintiffs are real parties

24 in interest here, the Court needs to know which shoes Plaintiffs claim to occupy. Id. Thus, claims

25 purporting to vindicate unnamed “assignors’” rights lack standing here. See Brown v. Bank of Am.,

26 N.A., 660 F. App’x 506, 509 (9th Cir. 2016) (affirming dismissal of complaint when plaintiff pled

27 he was “the assignee of the claims” listed in an exhibit but did not provide assignment

1 assignor assigned its claims to Plaintiffs via a valid assignment agreement.

2 2. The “Representative” Assignors

3 Though Plaintiffs do not include allegations regarding any specific assignor in the

4 complaint, Plaintiff do attach five “representative” assignment agreements. (Dkt. No. 38-47.)

5 Plaintiffs also provide “claims data” to support the assertion all “assignors” suffered injuries. (See

6 Dkt. No. 38-40.)

7 But Plaintiffs’ data largely undermines Plaintiffs’ claims. See ALD Soc., LLC v. Verkada,

8 Inc., No. 23-CV-00049-JSC, 2023 WL 1802418, at *5 (N.D. Cal. Feb. 7, 2023) (finding, in the

9 patent context, the “[p]laintiff ‘pleaded itself out of court’ with its detailed claim charts.”)

10 (citations omitted). The problem is that the “representative” assignors do not appear on the

11 spreadsheet Plaintiffs provide, at least as far as the Court can tell. (Id.) That the named assignors

12 do not appear in the “representative” claim data and are not named specifically in the complaint

13 can only support an inference those assignors did not suffer any actual injury. MSP Recovery

14 Claims, Series LLC v. Pfizer, Inc., No. 22-CV-01419 (DLF), 2023 WL 2770432, at *5 (D.D.C.

15 Apr. 4, 2023) (finding “the Court cannot accept inferences that are unsupported by the facts set out

16 in the complaint”) (cleaned up)); MSP Recovery Claims, Series LLC v. Metro. Gen. Ins. Co., 40

17 F.4th 1295, 1307 (11th Cir. 2022) (Jordan, J., concurring) (“How [a claim entry in a spreadsheet]

18 provided fair notice to [defendant] is beyond me.”); MSP Recovery v. Metro. Gen. Ins. Co., 2023

19 WL 168758, *2 (S.D. Fla. Jan. 12, 2023) (Plaintiffs’ “unhelpful[]” claims data tables “fail[ed] to

20 clearly set forth any injuries”).2 To hold otherwise would be granting Plaintiff an unwarranted

21 inference and would constitute dispensing standing “in gross.” Mercury Gen., 2023 WL 1793469,

22 at *2.

23 In general, pleading injury for standing purposes is not a high bar. See Vargas v.

24

2 See also MSP Recovery Claims, Series LLC v. Endurance Am. Ins. Co., No. 20-23219, 2021 WL

25

706225, at *3 (S.D. Fla. Feb. 23, 2021) (no standing because plaintiff “provided no factual

assertions . . . to show that A.A.’s claim was part of the assignment between Avmed, Inc. and the

26

Plaintiff”); MSP Recovery Claims, Series LLC v. Merchants Mut. Ins. Co., No. 19-cv-524, 2020

WL 8675835, at *10, *12 (W.D.N.Y. Nov. 20, 2020), report and recommendation adopted by

27

2021 WL 784537 (Mar. 1, 2021) (no standing because none of plaintiff's factual allegations

1 Facebook, Inc., No. 21-16499, 2023 WL 4145434, at *1 (9th Cir. June 23, 2023). “General

2 factual allegations . . .may suffice.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)

3 (emphasis added). But the allegations must be factual, and they must at least provide enough

4 substance to link a specific plaintiff’s claim to a generally described injury. See Vargas, 2023 WL

5 4145434, at *1 (“Plaintiff Vargas provides an example.”) This is particularly true when a plaintiff

6 purports to vindicate an assigned claim. In re Brooms, 447 B.R. 258, 265 (9th Cir. 2011). The

7 plaintiff must allege facts, for each specific assignor it invokes: a specific valid assignment and a

8 specific injury the assignor suffered. Tenet Fla., Inc., 918 F.3d at 1318. Scattershot, non-specific

9 pleading falls short of Plaintiffs’ burden to prove “the ultimate assignor[s] . . . suffered an injury-

10 in-fact.” Id.

11 * * *

12 The faults identified above could be remedied in an amended complaint. For example,

13 Plaintiffs provide no facts explaining the claims data attached to the complaint. (Dkt. No. 38-40.)

14 An amended complaint could ameliorate the injury concerns expressed here and Actelion’s

15 reasonable notice concerns under Rule 8(a). So, leave to amend is warranted.

16 3. Actelion’s Other Arguments

17 Actelion makes several additional, brief arguments against the assignments. The Court

18 addresses each in turn.

19 a. Clarity of Agreements

20 Actelion challenges the IMC assignment on grounds that it is not clear “IMC” is, in fact,

21 IMC, LLC. IMC assigned claims to “MSP Recovery, LLC” which further assigned “IMC, LLC”

22 claims to “MSPA Claims 1, LLC,” (Dkt. No. 38-47 at 33-45, 47-50.) This Court shares concerns

23 expressed by other courts regarding the “IMC” assignments. MSPA Claims I, LLC v. Infinity

24 Prop. & Cas. Grp., 374 F. Supp. 3d 1154, 1163-64 (N.D. Ala. 2019). However, because IMC has

25 not appeared in the claims data and so does not appear to have suffered any specific injury alleged

26 in the complaint, the Court need go no further.

27 Actelion also challenges the assignments to Health First. Actelion notes Health First

1 Health First Health Plans in other documents. Plaintiffs do not explain the relationship between

2 these entities in the complaint. Regarding these same “Health First” entities, the Seventh Circuit

3 has explained, “it suffices to say that this corporate arrangement was not just complex, but so

4 freighted with overlapping names and functions that a mix-up was, at the end of the day,

5 understandable.” MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 935 F.3d 573,

6 585 (7th Cir. 2019). Thus, again, the Court shares the concerns espoused in the Seventh Circuit’s

7 decision. Plaintiffs could surely better explain their documents and provide specific assignment

8 chains in the text of the complaint.

9 b. Scope

10 Although the Ninth Circuit does not require “terms of art . . . for a valid assignment,”

11 United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir. 1993), the assignee must

12 provide proof an assignment occurred. “[G]eneral contract principles dictate that to prove an

13 effective assignment, the assignee must come forth with evidence that the assignor meant to assign

14 rights and obligations under the contracts.” Britton v. Co–op Banking Grp., 4 F.3d 742, 746 (9th

15 Cir. 1993) (citing Restatement (Second) of Contracts § 317(1), 324 (1981)). Actelion makes a

16 series of arguments regarding what exactly was assigned here.

17 First, Actelion cites Brown v. Bank of Am., N.A., No. ED CV 12-02009 TJH, 2014 WL

18 12707378, at *1 (C.D. Cal. Feb. 24, 2014), aff'd, 660 F. App’x 506 (9th Cir. 2016), for the

19 proposition RICO assignments must be “express.” According to Actelion, that means the

20 assignment must contain the word RICO. Not so. The claims in Brown failed because the

21 plaintiff did not allege any fact or provide any exhibits regarding his claim to be an assignee, id.,

22 not because he failed to use a “term of art.” Kelly v. Boeing Co., 9 F.3d at 748. By way of

23 example, Brown relied on Lerman v. Joyce Int’l, Inc., 10 F.3d 106 (3d Cir. 1993). There, then-

24 Judge Alito looked to antitrust precedent and found assigning “all . . . causes of action … [and]

25 claims and demands of whatsoever nature” constituted an “express” assignment of RICO claims.

26 Id. at 112. The assignment here included “all Claims . . . whether based in contract, tort, statutory

27 right. . . .” (Dkt. No. 38-47 at 13.) That language meets the express assignment requirement as

1 Second, Actelion objects Plaintiffs redact entire pages within the assignment agreements.

2 The Court too has concerns regarding the extensive redactions. (See id. at 12-13.) However, at

3 this stage, the visible terms support an inference an assignment exists.

4 Third, Actelion notes Health First Administrative Plans did not assign all claims to MSP

5 entities. Rather, it excluded claims other parties had already pursued. (Id. at 13.) Health First

6 Administrative Plans was required under the agreement to list those claims to MSP. (Id.) To

7 show valid assignment, Actelion argues Plaintiffs must plead that the claims alleged here are not

8 those claims carved out from the assignment agreement. Plaintiffs plead “each and every cause of

9 action identified in this Complaint was expressly assigned to Series 44.” (Dkt. No, 38 ¶ 38.) At

10 this stage, that allegation supports an inference the previously assigned claims (which were not

11 assigned to MSP entities) are not a part of this case. Any double-recovery argument is better made

12 at summary judgment.3

13 c. Assignment Chains

14 Finally, Actelion argues the assignment chains identified above end with entities that are

15 not plaintiffs in this case. See MAO-MSO Recovery II, LLC v. Mercury Gen., No. 21-56395, 2023

16 WL 1793469, at *2 n.2 (9th Cir. Feb. 7, 2023). But Plaintiffs plausibly plead claims were

17 ultimately assigned to “Series 44-20-456, a designated series of MSP Recovery Claims Series 44.”

18 (Dkt. No. 38-47 at 10-29.) MSP Recovery Claims Series 44 is a plaintiff here. Plaintiffs provide

19 an operating document for MSP Recovery Claims Series 44 and Series 44-20-456. (Dkt. No. 38-

20 47 at 23-25.) That document indicates the “Company,” Plaintiff MSP Recovery Claims Series 44,

21 can sue on behalf of the “Series,” Series 44-20-456. (Id. at 24 ¶ 2.)4

22 * * *

23

24

3 Actelion also asks the Court to take judicial notice of news articles regarding MSP’s sale of some

of its claims to other parties. Actelion raises the concern that the claims asserted here may already

25

have been sold. At this stage, the presumption of truthfulness still applies to Plaintiffs’ complaint.

Should later evidence reveal the claims asserted here are not in fact still assigned to MSP, Actelion

26

can raise that issue in a motion for summary judgment.

4 An amended complaint should either include the relevant operating agreements for other entities

27

or join the proper assignees. See MAO-MSO Recovery II, LLC v. Mercury Gen., No. 21-56395,

1 CONCLUSION

2 Actelion’s motion to dismiss is GRANTED. The California UCL claim is dismissed

3 without leave to amend as it is not assignable as a matter of established California law. The other

4 || claims are dismissed with leave to amend to correct the deficiencies identified above. Plaintiffs

5 should also be mindful of the additional arguments Actelion made in support of the motion to

6 || dismiss which the Court did not need to reach to dispose of the motion. Any amended complaint

7 must be filed by September 28, 2023.

8 Actelion’s motion for leave to file a supplemental request for judicial notice is DENIED as

9 moot.

10 This Order disposes of Docket Nos. 43 and 63.

11 IT IS SO ORDERED.

12 Dated: September 5, 2023

etn SutWCody

CQWELINE SCOTT CORLEY

United States District Judge

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