# BURLINGTON DRUG CO., INC. v. PFIZER INC.

> District Court, D. New Jersey · February 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10270446

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civil Action No.
BURLINGTON DRUG CO., INC. et al., 3:12-cv-02389-PGS-DEA

Plaintiff,

v. MEMORANDUM
AND ORDER
PFIZER INC. et al.,

Defendants.

This matter comes before the Court on Plaintiffs Sandra Hellgren’s and Anita Cox’s
(“Named Consumers”) motion for reconsideration of the Court’s September 22, 2020
memorandum and order. (Moving Br., ECF No. 994). In that order, the Court denied the Named
Consumers’ motion (1) for relief from part of Case Management Order No. 1 (“CMO-1,” ECF
No. 109); (2) to create a sub-class of California Consumers; and (3) to appoint separate interim
lead counsel for the subclass. (Mem. & Order, ECF No. 989). Named Consumers now move for
reconsideration of that order on the grounds that the Court should have ruled on their claim that
the End-Payor Plaintiffs did not have standing to assert California antitrust claims in their Third
Amended Consolidated Complaint (ECF No. 815). (Moving Br. at 1). Oral argument was held
on January 28, 2021. For the reasons that follow, the Named Consumers’ motion is granted in
that the Court will reconsider its prior ruling; but the relief requested is denied.
I.
This matter concerns a class action suit against Pfizer, Inc., Pfizer Ireland
Pharmaceuticals, Warner-Lambert Co., Warner-Lambert Co., LLC, Ranbaxy, Inc., and other
defendants in connection with an alleged anticompetitive scheme to delay market entry of
generic versions of Lipitor, a cholesterol drug. The Named Consumers initially filed their suit in
the California Superior Court in 2011, and the U.S. Judicial Panel on Multidistrict Litigation
consolidated and transferred the case, along with other complaints, to this Court in 2012. Before
this Court are four direct purchaser actions and several “tag-along” direct and indirect purchaser
actions.

The Named Consumers allege that the California consumers paid billions of dollars more
for Lipitor than they would have in a fully competitive market. (ECF No. 955-2 at 1, 5). Based
on their belief that there is a conflict of interest between the California consumers and the other
end-payor plaintiffs, Hellgren and Cox filed a motion seeking to create an interim sub-class of
California consumers and appoint interim lead counsel to represent the sub-class in May 2020.
(Id. at 2). They argued that they were “the only plaintiffs who have actually consumed Lipitor”
and that they were entitled to be represented as a sub-class of consumers “who actually took the
Lipitor pill.” (Id. at 4). By contrast, the Named Consumers contended, the other California
purchasers named in the Third Amended Complaint were entities who did not literally consume

the drug: two municipal corporations; the cities of Providence, Rhode Island and Baltimore,
Maryland; and Bluecross/Blueshield of Louisiana (BCBSLA) (collectively referred to as “the
End-Payors”). (Id.).
Further – and central to the present motion – the Named Consumers stated in the
introduction section of their brief that “[t]he cities of Baltimore and Providence and BCBSLA
may not have standing to sue under California’s antitrust laws because they suffered no damages
or did not purchase Lipitor or any generics in the state.” (Id. at 7 (citing In re Glumetza Antitrust
Litig., No. C 19-05822 (WHA), 2020 WL 1066934 (N.D. Cal. Mar. 5, 2020)). In its September
22, 2020 Memorandum and Order, the Court addressed that argument when it held that
it would be inappropriate for this Court to rule, in speculative
fashion, on whether the defendants could successfully challenge
certain end-payors’ standing to sue in a California court. The
defendants have previously chosen not to move to dismiss Plaintiffs’
claims on the grounds that Plaintiffs lacked standing to pursue
claims for California consumers, and no such motions to dismiss for
lack of standing are currently pending. Accordingly, the Court will
not decide this issue or adjudicate the rights of certain California
end-payors absent a proper motion because it is not ripe. As such,
Hellgren and Cox have not adequately demonstrated that the
standing issue warrants the creation of a new subclass.

(Mem. & Order at 7-8) (citations omitted). The Court also noted that “it is at least conceivable
that, under Glumetza . . . allegations that the plaintiffs Baltimore, Providence, and BCBSLA each
‘purchased, paid and/or provided reimbursement for . . . Lipitor [or] its generic equivalent’ in
California . . . would be adequate to confer standing.” (Id. at 8 n.5). That holding is the subject
of the Named Consumers’ motion for reconsideration.
In this motion, the Named Consumers (1) argue that the Court erred when it declined to
rule on the standing issue, and (2) ask the Court to “rule as a matter of law that it does not have
subject matter jurisdiction over these End-Payor Plaintiffs’ claims under the California
Cartwright Act.” (Moving Br. at 1-2). Accordingly, they seek dismissal of the End-Payors’
Third Amended Complaint as it relates to the California causes of action. (Id. at 7).
Alternatively, it asks the Court to “order and permit limited discovery by the Hellgren and Cox
Plaintiffs into the factual basis for the End-Payors’ subject matter jurisdiction.” (Id. at 2).
In support of their argument, the Named Consumers rely on the following authorities.
First, Fed. R. Civ. P. 12(h)(3) provides that “[i]f the court determines at any time that it lacks
subject matter jurisdiction, the court must dismiss the action,” regardless of whether the parties
have raised the issue. (Id. at 3 (citing, e.g., Rosenbaum v. Bauer, 120 U.S. 450 (1887))).
Second, the court must dismiss a claim if Article III standing is lacking. (Id. (citing Adams v.
Governor of Delaware, 922 F.3d 166, 173 (3d Cir. 2019))). Third, the parties may raise, and the
court should rule on, the issue of subject matter jurisdiction at any time during the litigation. (Id.
at 4-5 (citing, e.g., Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884))). Fourth, a
party must make a purchase within the state in order to have standing under the California
Cartwright Act. (Id. at 5 (citing Glumetza, 2020 WL 1066934, at *10)).

The Named Consumers also argue that the End-Payors’ allegation that they “purchased,
paid and/or provided reimbursement for . . . Lipitor [or] its generic equivalent” is inadequate to
confer standing, contrary to the Court’s conclusion, because “the words ‘purchased’ and
‘provided reimbursement’ are contradictory.” (Id. at 5). Relying on the California Commercial
Code, they assert that the words “purchase” or “purchaser” require a person or entity to “take an
interest in the goods.” They insist that the End-Payors do not have such an interest here because
they do not sell Lipitor to consumers, and there is no evidence that they “ever actually received
and took possession of the goods that they allegedly ‘purchased.’” (Id. at 5-6). Rather, they
contend that “the End-Payors acted merely as insurers” by reimbursing their clients who

purchased Lipitor. (Id. at 6).
In short, the Named Consumers argue that the End-Payor Plaintiffs lack standing to bring
claims under the California Cartwright Act because they did not purchase Lipitor and, therefore,
the Court lacks subject matter jurisdiction over – and should dismiss – those claims. They
believe the Court should have ruled on that issue in its September 22, 2020 decision and urge it
to do so now upon reconsideration.
The End-Payors oppose the Named Consumers’ motion. First, they argue that
reconsideration is not appropriate because the Named Consumers never fully argued the standing
issue; rather, they “casually mentioned once in their ‘Introduction’ that End-Payor Plaintiffs may
not have standing to sue under the Cartwright Act,” and “none of the cases upon which they now
rely were cited in their prior motion,” with the exception of Glumetza. (Opp. Br. 4, 8, ECF No.
1007). As such, the End-Payors argue that the Named Consumers are raising their subject matter
jurisdiction argument for the first time in the present motion. (Id. at 80). They contend that in
order to meet the standard for reconsideration, the moving party must have presented facts or

legal authority that was overlooked by the court, which did not happen here. (Id. at 6-7).
Second, they argue that the Court did not err in failing to dismiss the California antitrust
claims for lack of subject matter jurisdiction because the Court has Article III jurisdiction over
the entire action based on diversity. (Id. at 6-7, 9). They contend that a lack of standing for
some of their state law claims does not destroy the Court’s subject matter jurisdiction over this
matter and does not implicate Rule 12(h)(3), which discusses dismissing an entire action, not
individual claims. (Id. at 4-5, 8-10 (citing Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 128 (2014))).
Third, they assert that even if the Named Consumers had articulated standing and subject

matter jurisdiction arguments in their prior motion, it would not change the disposition of the
present motion. (Id. at 5). They cite numerous cases holding that an allegation that a plaintiff
“purchased, paid and/or provided reimbursement” is sufficient to confer standing, and they claim
that the cases cited by the Named Consumers do not hold otherwise. (Id. at 5-6, 10-14).
Overall, the End-Payors argue that the criteria for reconsideration have not been met, and
they ask the Court to deny the Named Consumers’ motion. (Id. at 7, 15).
On November 24, 2020, the Named Consumers requested that the End-Payors’
opposition brief be stricken because it was filed two weeks late and without permission from the
Court; in the alternative, they requested leave to file a reply, and submitted a proposed reply
brief. (Reply Br. 1, ECF Nos. 1009, 1009-1). In response, the End-Payors asserted that the
Named Consumers conflated the opposition date with the return date for the motion, noting that a
hearing on the motion had not yet been scheduled. (ECF No. 1012). They asked the Court to
deny the Named Consumers’ request to file a reply brief because it is being used as an attempt to
improperly strike the End-Payors’ opposition brief. (Id.). Further, if the Court were to accept

the reply brief, they asked it to “accept their opposition as if it had been timely filed,” as the
Named Consumers did not assert that they suffered any prejudice due to the delayed filing. (Id.).
On November 30, 2020, the Court denied the Named Consumers’ request to strike the
End-Payors’ opposition brief, and denied the End-Payors’ request to strike the Named
Consumers’ reply brief. (ECF No. 1014).
In their reply, the Named Consumers insist that they raised the issue of subject matter
jurisdiction in their prior moving brief, reply brief, and hearing (held August 5, 2020) when they
challenged the End-Payors’ Article III standing under the Cartwright Act. (Reply Br. at 4-5,
ECF No. 1009-1). They claim they expressly relied on Glumetza and In re Hard Disk Drive

Suspension Assemblies Antitrust Litigation, No. 19-MD-02918-MMC, 2020 WL 6270948 (N.D.
Cal. Oct. 23, 2020), in support of their standing argument both before and at the hearing. (Id. at
6).
In addition, the Named Consumers contend that the End-Payors’ argument that the Court
has subject matter jurisdiction based on diversity is a “non-sequitur.” (Id. at 7). They insist that
because the End-Payors lack standing under the Cartwright Act (because they did not “buy”
Lipitor within the meaning of § 2401(2) of the California Commercial Code1), the Court lacks

1 The Named Consumers quote the following language from § 2401(2): “title passes to the buyer at the time and
place at which the seller completes his performance with reference to the physical delivery of the goods.” They
maintain that the End-Payors neither took title to nor received physical delivery of the Lipitor pill and, therefore, are
not “buyers.” (Id. at 8).
subject matter jurisdiction over those specific claims. (Id.). Therefore, they argue, the End-
Payors “are not proper representatives of the class of California indirect purchasers under Rule
23.” (Id.).
Further, the Named Consumers challenge the End-Payors’ reliance on Lexmark regarding
whether a lack of Article III standing deprives a court of subject matter jurisdiction over those

claims. (Id. at 9). First, they argue that in Lexmark, unlike the present case, the Court and the
parties agreed that Article III standing existed. (Id.). Second, they argue that the End-Payors do
not meet the Lexmark Court’s definition of Article III standing – specifically, “there is no
conduct prohibited under the Cartwright Act that can be ‘fairly traceable’ to the defendants and
no ‘favorable judicial decision’ that can be redressed under the Cartwright Act by this Court.”
(Id.).
The Named Consumers emphasize that reimbursing an insured client for Lipitor is not
enough to establish standing under the Cartwright Act, and assert that the End-Payors have cited
no authority to convince the Court otherwise. (Id. at 10). They maintain that under California

insurance law, “the act of reimbursing a portion of the purchase price entitles the insurers to be
subrogated to the rights of the insured, but only to the extent that they reimbursed.” (Id. at 10-
11). Overall, they ask the Court to (1) rule on the question of standing and subject matter
jurisdiction, and (2) grant their motion to create an interim sub-class of California consumers
who bought Lipitor and appoint separate lead counsel to represent them. (Id. at 11).
II.
STANDARD
The “purpose of a motion for reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.
1985), cert. denied, 476 U.S. 1171 (1986). The moving party must submit a “brief setting forth
concisely the matter or controlling decisions which the party believes the Judge or Magistrate has
overlooked.” L. Civ. R. 7.1(i). The grounds for granting a motion for reconsideration are: (1) an
intervening change in the law, (2) newly discovered evidence, or (3) “the need to correct a clear
error of law or fact or to prevent manifest injustice.” Heine v. Bureau Chief Div. of Fire &

Safety, 765 F. App’x 816 (3d Cir. 2019) (quoting Max’s Seafood Café ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). Reconsideration is not appropriate where the
moving party raises an issue for the first time, Bowers v. NCAA, 130 F. Supp. 2d 610, 613
(D.N.J. 2001), or simply disagrees with the court’s initial decision, Florham Park Chevron, Inc.
v. Chevron U.S.A., Inc., 680 F. Supp. 159, 162 (D.N.J. 1988); accord Johnson v. Berryhill, No.
CV 17-2490 (JMV), 2019 WL 78786 (D.N.J. Jan. 2, 2019).
Here, the Named Consumers raised the issue of standing in their moving brief (ECF No.
955). Although they dedicated merely one written sentence to that argument, the parties
discussed the issue in more detail at oral argument. The fact that the Court addressed that matter

in its September 22, 2020 decision indicates that it is not being raised for the first time in the
present motion for reconsideration. As such, the Court will consider the Named Consumers’
argument that it should have ruled on the standing issue in its prior decision (ECF No. 989). For
the sake of completeness, an analysis of standing under the Cartwright Act follows.
LEGAL PRINCIPLES
A. Standing and Subject Matter Jurisdiction
A federal court may only resolve a case or controversy that meets the standing
requirements of Article III of the United States Constitution. Nichols v. City of Rehoboth Beach,
836 F.3d 275, 279 (3d Cir. 2016) (citing Hein v. Freedom From Religion Found., Inc., 551 U.S.
587, 597-98 (2007)).
To satisfy the standing requirements of Article III, a plaintiff must
show that: (1) he or she has suffered an injury in fact “that is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical;” (2) the injury is fairly traceable to the
defendant’s challenged action; and (3) it is likely that the injury will
be redressed by a favorable decision.

Nichols, 836 F.3d at 285 (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000)).
A “federal court must dismiss a complaint for lack of subject matter jurisdiction under the
case-or-controversy requirement of Article III of the United States Constitution if the plaintiff
lacks standing to bring a claim,” “because standing is a jurisdictional matter.” Travelers Indem.
Co. v. Cephalon, Inc., 32 F. Supp. 3d 538, 544 (E.D. Pa. 2014), aff’d, 620 F. App’x 82 (3d Cir.
2015) (first citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), then quoting
Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007)). See also Fed. R. Civ. P. 12(h)(3).
“[A] plaintiff must demonstrate standing for each claim he seeks to press,” even “when
all claims for relief derive from a ‘common nucleus of operative fact.’” DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 335 (2006). Here, the Named Consumers argue that the Court should
dismiss only the California state claim, not the entire action, for lack of subject matter
jurisdiction.
An objection to subject matter jurisdiction may be raised at any time, and a court may
raise jurisdictional issues sua sponte. Group Against Smog & Pollution, Inc. v. Shenango Inc.,
810 F.3d 116, 122 n.6 (3d Cir. 2016). While “courts are generally limited to addressing the
claims and arguments advanced by the parties,” “federal courts have an independent obligation
to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and
decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
B. California Cartwright Act
In order to determine whether the Court has subject matter jurisdiction over the End-
Payors’ California antitrust claims, the Court must examine the standing requirements under the

relevant state law. The parties dispute whether the first prong of the Article III standing test is
met for their Cartwright Act claim – that is, whether the End-Payors suffered an injury in fact
because they reimbursed their clients for Lipitor but did not purchase it for their own use. (See
Reply Br. at 9-10; Opp. Br. at 9-10). They rely on different authorities to support their
respective arguments. The Named Consumers argue that the End-Payors and their
reimbursements for Lipitor do not meet the California Commercial Code’s definitions of
“purchase,” “purchaser,” and “buyer,” while the End-Payors cite case law holding that
reimbursement constitutes an injury under the antitrust laws of California and other states.
The California Cartwright Act broadly defines the category of persons who have standing

to sue for a violation thereof:
Any person who is injured in his or her business or property by
reason of anything forbidden or declared unlawful by this chapter,
may sue therefor in any court having jurisdiction . . . . This action
may be brought by any person who is injured in his or her business
or property by reason of anything forbidden or declared unlawful by
this chapter, regardless of whether such injured person dealt directly
or indirectly with the defendant. 2

2 The Act prohibits the formation of a trust, which is defined as a combination of capital, skill or acts by two or more
persons for any of the following purposes:
(a) To create or carry out restrictions in trade or commerce.
(b) To limit or reduce the production, or increase the price of merchandise or of any commodity.
(c) To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any
commodity.
(d) To fix at any standard or figure, whereby its price to the public or consumer shall be in any manner controlled or
established, any article or commodity of merchandise, produce or commerce intended for sale, barter, use or
consumption in this State.
Cal. Bus. & Prof. Code § 16750. Thus, the Cartwright Act does not require that a “purchase”
form the basis of a plaintiff’s injury, and it does not incorporate by reference the definitions in
the California Commercial Code, upon which the Named Consumers’ argument relies. Indeed,
courts have found that different types of injuries can establish standing under the Act, and
“California law affords standing more liberally than does federal law.” Knevelbaard Dairies v.

Kraft Foods, Inc., 232 F.3d 979, 987 (9th Cir. 2000).
The Supreme Court set forth five factors a court should consider when evaluating
antitrust standing: “(1) the nature of the plaintiff’s alleged injury; that is, whether it was the type
the antitrust laws were intended to forestall; (2) the directness of the injury; (3) the speculative
measure of the harm; (4) the risk of duplicative recovery; and (5) the complexity in apportioning
damages.” Knevelbaard Dairies, 232 F.3d at 987 (citing Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 545 (1983)); see also In re Dynamic
Random Access Memory (Dram) Antitrust Litig., 516 F. Supp. 2d 1072, 1088-89 (N.D. Cal.
2007). In analyzing the first factor, the Ninth Circuit articulated four elements of an “antitrust

injury”: “(1) unlawful conduct, (2) causing an injury to the plaintiff, (3) that flows from that
which makes the conduct unlawful, and (4) that is of the type the antitrust laws were intended to
prevent.” Id. Emphasizing that “the central purpose of the antitrust laws, state and federal, is to

(e) To make or enter into or execute or carry out any contracts, obligations or agreements of any kind or description,
by which they do all or any or any combination of any of the following:
(1) Bind themselves not to sell, dispose of or transport any article or any commodity or any article of trade, use,
merchandise, commerce or consumption below a common standard figure, or fixed value.
(2) Agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure.
(3) Establish or settle the price of any article, commodity or transportation between them or themselves and others, so
as directly or indirectly to preclude a free and unrestricted competition among themselves, or any purchasers or
consumers in the sale or transportation of any such article or commodity.
(4) Agree to pool, combine or directly or indirectly unite any interests that they may have connected with the sale or
transportation of any such article or commodity, that its price might in any manner be affected.

Cal. Bus. & Prof. Code § 16720.
preserve competition,” the court held that the milk producer plaintiffs suffered an injury in fact
when the cheese maker respondents conspired to depress milk prices in California – a violation
of the Cartwright Act. Id. at 988-90. It found that an “[a]ntitrust injury requires that the ‘injured
party be a participant in the same market as the alleged malefactors,’” and both the milk
producers and cheese makers were participants in the milk market. Id. at 989 (quoting Am. Ad

Mgmt., Inc. v. Gen. Tel. Co. of Cal., 190 F.3d 1051, 1057 (9th Cir. 1999)).
Other injuries that have established standing under the Cartwright Act include being
excluded from a business transaction due to racial discrimination, Burke v. Superior Court, 180
Cal. Rptr. 537, 539 n.5 (Ct. App. 1982); paying artificially inflated fees and commissions
without competitive negotiations, Cal. Dental Assn. v. Cal. Dental Hygienists’ Assn., 271 Cal.
Rptr. 410, 418 (Ct. App. 1990); and being coerced into accepting an unwanted and unnecessary
service due to a tying arrangement, Classen v. Weller, 192 Cal. Rptr. 914, 918-20 (Ct. App.
1983).
More pertinent to this action, courts have held that end-payor plaintiffs who paid, co-

paid, or reimbursed others for a drug at supracompetitive prices suffered a monetary injury, and
thus had standing to bring antitrust claims in the states in which they suffered that injury
(including California). See, e.g., In re Nexium (Esomeprazole) Antitrust Litig., 968 F. Supp. 2d
367, 403-05 (D. Mass. 2013); In re Wellbutrin XL Antitrust Litig., 260 F.R.D. 143, 156-58 (E.D.
Pa. 2009). Where plaintiffs were employee benefit plans that reimbursed their members for the
drug, the injury occurred in the state in which the member’s purchase occurred. Wellbutrin, 260
F.R.D. at 156.
By contrast, courts have dismissed Cartwright Act claims for lack of standing where the
plaintiff (1) did not participate in the relevant market, Metro-Goldwyn-Mayer Studios Inc. v.
Grokster, Ltd., 269 F. Supp. 2d 1213, 1224-25 (C.D. Cal. 2003); (2) purchased the goods only
through a secondary, incidental market, In re Dram Antitrust Litig., 516 F. Supp. at 1089; (3)
lacked causation between their injury and the alleged antitrust violation, Wilson v. Avemco Ins.
Co., 59 F. App’x 928, 929 (9th Cir. 2003); Cable & Computer Tech. Inc. v. Lockheed Sanders,
Inc., 214 F.3d 1030, 1033, 1039 (9th Cir. 2000); Krigbaum v. Sbarbaro, 138 P. 364, 366 (Cal.

Ct. App. 1913); or (4) was deterred from making an unspecified future investment due to
speculative fear of anticompetitive conduct, In re Napster, Inc. Copyright Litig., 354 F. Supp. 2d
1113, 1124 (N.D. Cal. 2005).
Neither Glumetza nor Hard Disk Drive Suspension Assemblies Antitrust Litigation
supports the Named Consumers’ argument that only a purchaser or buyer, as defined by the
California Commercial Code, may establish standing under the Cartwright Act. While the
plaintiffs in those cases did purchase the drug in question, the issue was whether they could
establish standing in states in which they did not make those purchases – not whether a
“purchase” was distinguishable from other types of injuries. Both courts found that the plaintiffs

only had standing in the states in which they purchased the drug, but neither ruled on what type
of injury confers standing under the Cartwright Act. See Glumetza, 2020 WL 1066934, at *9-10;
Hard Disk Drive, 2020 WL 6270948, at *3. In sum, the cases cited by the Named Consumers
neither reference the California Commercial Code’s definition of “buyer” or “purchaser,” nor
hold that Cartwright Act standing demands such a narrow type of injury.
III.
Applying the antirust principles set forth in Section II. B, the Court finds that the End-
Payors did suffer an injury in fact by nature of their payment for Lipitor. Although they did not
directly purchase or physically consume the drug, they need only allege that Defendants’
anticompetitive conduct caused them to suffer an economic loss that injured their business or
property under Section 16750 of the Cartwright Act. Based on the principles described in
Section II.B, the Court finds unpersuasive the Named Consumers’ arguments that only a
particular type of purchase constitutes an injury under the Cartwright Act, and that courts should
rely on the California Commercial Code’s definitions of “purchaser” or “buyer” when analyzing

a party’s standing under the Act. In fact, the plain language of Section 16750 and citing
authorities indicate that there is a broad range of injuries that can establish standing under the
Cartwright Act. And there is no question that the End-Payors participated in and were affected
by the market for Lipitor when they reimbursed their clients for the drug. See Knevelbaard
Dairies, 232 F.3d at 989.
The foregoing principles support the Court’s finding in its September 22, 2020
Memorandum & Order that “it is at least conceivable that . . . allegations that the [End-Payor]
plaintiffs . . . purchased, paid and/or provided reimbursement for . . . Lipitor . . . in California . . .
would be adequate to confer standing.” (ECF No. 989 at 8 n.5). As such, the Court did not

commit a clear error of law when it denied the Named Consumers’ request to create a subclass of
California consumers, and the Named Consumers’ standing argument does not change that
decision. (See id. at 7-8).
Because the Court finds that the End-Payors have standing to assert their Cartwright Act
claims, it rejects the Named Consumers’ argument that it lacks subject matter jurisdiction over
those claims. As such, the Court declines to dismiss those claims on that basis.
Further, to the extent that the Named Consumers’ oral argument on January 28, 2021
focused on the issue of creating a subclass of California consumers, the Court finds that the
allegations are sufficient to show that the named End-Payor plaintiffs can adequately represent
the class. (See Tr. of Jan. 28, 2021 Hearing 6:7-15, 13:5 – 14:20, ECF No. 1038; Third Am.
Compl. ¶¶ 25, 27, 31, 478-84, ECF No. 815). Finding no change of circumstances, new
evidence, or clear error of law, the Court will deny the relief requested in the Named Consumers’
motion for reconsideration.
ORDER

WHEREAS, this matter comes before the Court on Plaintiffs Sandra Hellgren’s and Anita
Cox’s (“Named Consumers”) Motion for Reconsideration of the Memorandum and Order dated
September 22, 2020 (ECF No. 994); and
WHEREAS, the Court held oral argument on Named Consumers’ motion on January 28,
2021; and
WHEREAS, the Court has carefully reviewed and taken into consideration the
submissions of the parties, as well as the arguments set forth on the record; and for good cause
shown;
IT IS on this 26th day of day of February 2021,

ORDERED that Named Consumers’ Motion for Reconsideration (ECF No. 994) is
granted, but the relief requested is denied.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270446. Public record. Not legal advice.