Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

IN RE REVLIMID & THALOMID

PURCHASE ANTITRUST LITIGATION

No. 19-cv-07532 (MEF)(MAH)

OPINION

Table of Contents

I. Background

A. The Allegations

B. Procedural History

C. The Motion

II. Where To Start

III. The Cause of Action

A. The Public Benefit Rule

B. An Implication of the Rule

IV. Can the Court Ask?

V. Should the Court Ask?

A. Interest

B. Representation

C. Usefulness

D. Novelty

VI. Conclusion

* * *

A pharmaceutical company funded charities that helped people

afford its cancer drug --- and an insurance company that was

often billed for the drug came to believe that the charity

payments were a scheme, designed to get more doctors and

patients to select the drug.

So the insurance company sued the pharmaceutical company,

including under a Minnesota law.

The pharmaceutical company now moves to dismiss, arguing, among

other things, that claims under the Minnesota law cannot go

forward here because there is no cause of action.

But the scope of any potentially-available cause of action is

tied to the scope of the Minnesota Attorney General’s power to

pursue his own enforcement actions.

So before the Court decides the motion to dismiss, it will

solicit the AG’s views.

* * *

I. Background

A. The Allegations

This is a dispute between an insurance company1 and a

pharmaceutical company.2

The pharmaceutical company held the key patents on an important

brand-name cancer drug.3 See Second Amended Complaint

(“Complaint”) (ECF 463) ¶¶ 2, 182, 166.

* * *

To see what the allegations here are about, start off by

imagining three things.

First, imagine a cancer patient whose doctor prescribes her the

drug.

Second, take it as a given that the drug costs, say, $10 per

dose.4

1 United Healthcare Services, Inc.

2 Celgene Corporation. Note that in 2019, Bristol-Myers Squibb

Co. bought Celgene Corporation. See Second Amended Complaint

(ECF 463) ¶ 19. But Bristol-Myers Squibb Co. is not a named

defendant here. See id. ¶¶ 11-26; see also Plaintiff United

Healthcare Services, Inc’s Memorandum of Law in Opposition to

Defendant Celgene Corporation’s Motion to Dismiss (Issue E) (ECF

537) at 1 n.1.

3 Revlimid.

4 The numbers used throughout this Opinion are just examples.

They do not purport to be accurate. Not at all. Rather, they

And third, hypothesize that the cancer patient has an

arrangement with the insurance company --- under which the

insurance company will pay for the drug for the woman, but only

after certain other boxes are checked, things like her

deductibles and co-pays being taken care of. Say these add up

to $3. And collectively call costs like these (deductibles, co-

pays, etc.) “insurance-related-costs.”

* * *

What follows are the allegations here. They take up the

remainder of this Part I.A.5

* * *

Insurance-related-costs were designed by the insurance company

to work, in part, as a kind of speed bump. To encourage the

patient (and her doctor) to slow down a bit, and to consider

lower-cost options --- something cheaper than the drug.6

But the pharmaceutical company did not want patients (and

doctors) turning to “lower cost alternative[s].” Id. ¶ 655.

Presumably for everyday commercial reasons.7

And also for an added reason. The pharmaceutical company was

“work[ing] to exclude generics from the market.” Id. ¶ 650.

are used just to boil things down and illustrate the

allegations.

5 Because this is a motion to dismiss, the Court must treat all

of the complaint’s allegations as true. See McTernan v. City of

York, 577 F.3d 521, 526 (3d Cir. 2009). Whether they are in

fact true would be a question for later in the case.

6 See Complaint ¶ 658 (describing “cost-sharing obligations . .

. as a market-based check on . . . prescription volume”); see

generally Nicole Fusco, et al., Cost-Sharing and Adherence,

Clinical Outcomes, Health Care Utilization, and Costs: A

Systematic Literature Review, 29 J. Managed Care & Specialty

Pharmacy 4, 5 (2023) (noting the conventional view that “cost-

sharing . . . compel[s] consumers to be more thoughtful and

selective in their health care choices if they are required to

shoulder a greater burden for such services”).

7 The kinds of reasons that apply in all sorts of contexts,

beyond the pharmaceutical industry. The short of it: Ford wants

people buying Fords, not Chevys.

This was to keep prices for the brand-name drug much higher than

they otherwise would have been. See id. ¶ 5. So the

pharmaceutical company had an extra reason to ensure that people

were choosing its drug. See id. ¶ 650. Namely, given the

pharmaceutical company’s “exclu[sion]” of generics, each dose of

the drug would be especially pricey, id. ¶¶ 293, 300, 651, 678 -

-- and the pharmaceutical company would therefore make

significant per-unit profits on each sale. See generally id. ¶

318.

* * *

Against this backdrop, the pharmaceutical company allegedly

subsidized some consumers’ insurance-related-costs. See id. ¶¶

653, 672, 758.

If, through a subsidy, someone else covered the hypothetical

cancer patient’s $3 in insurance-related-costs, then there would

be that much less reason for her (and her doctors) to steer away

from the $10 drug. See id. ¶ 655; see footnote 6.

This was a plus for the pharmaceutical company.

It allowed the company to sell more of the drug. See Complaint

¶¶ 653, 655, 671-72, 682, 753, 756.

And it worked as a safety valve. It released the pressure that

would otherwise have built up --- the pressure on the

pharmaceutical company from patients and doctors to put the drug

within easier financial reach, by allowing generic drugs to more

broadly compete with the brand-name drug. See id. ¶¶ 653, 656-

58, 756-57. This pent up pressure might ultimately have caused

the price of the drug to fall. See generally id. ¶ 657, 756.

But the pressure was instead released, and so it dissipated.8

8 As to the safety valve, the “scheme” is alleged to have worked

roughly as follows. The pharmaceutical company constrained

supply by limiting the availability of generic versions of the

drug. See Complaint ¶¶ 5, 293, 401, 414. This kept prices for

the drug high. See id. ¶¶ 5, 283, 294, 303, 401. And then, to

relieve pressure that would have built up to lower across-the-

board drug prices, the pharmaceutical company subsidized some

people’s demand, by using charities to cover their insurance-

related-costs. See id. ¶¶ 653, 655, 658, 672, 753, 758. Cf.,

e.g., Arnold Kling, Specialization and Trade: A Re-Introduction

to Economics 127-28 (2016) (describing what the author takes to

be a similar dynamic in a range of other areas, a dynamic of

The pharmaceutical company’s subsidies, in short, impacted both

(i) the volume of the drug that was sold and (ii) the price at

which it was sold. See id. ¶¶ 655, 658, 672, 682, 753, 755-56.

This injured the insurance company.

When one of its insureds obtained the drug, the insurance

company had to cover part of the cost. So if more people were

taking the drug, it would have to do more covering.

And when the insurance company had to cover the drug’s cost, it

was covering a relatively higher cost. See, e.g., id. ¶¶ 15,

655, 672.

* * *

As to the just-referenced subsidies: how were they paid by the

pharmaceutical company?

“[S]ecretly.” Id. ¶¶ 655, 757. Through “donations” from the

pharmaceutical company to nominally “independent” charities.9

See id. ¶¶ 652, 654, 672, 682.

The charities then allegedly used this money to help patients

who had arrangements with the insurance companies. How? By

covering some or all of the patients’ insurance-related-costs10

for the drug --- thereby producing an “illusion for physicians

and patients that [the pharmaceutical company’s drug] was ‘free’

(or close to it).” Id. ¶ 658.

But although the drug might have appeared free, the insurance

company still had to pay. See id. ¶¶ 679, 758-59. “[T]he

entire price burden” was “shifted to third-party payors” like

the insurance company. Id. ¶ 658.

Once again, this allegedly impacted both price and volume.

restricting supply and then engaging in targeted subsidizing of

demand). To those people whose demand was subsidized, the drug

would feel “‘free’ (or close to it).” Id. ¶ 658. So they would

have no reason to add their voices to any chorus seeking lower

top-line drug prices.

9 The Chronic Disease Fund, now called the Good Days Fund. And

the Patient Access Network Foundation. See Complaint ¶ 652.

10 Defined above.

As to price, the pharmaceutical company was able “to

artificially inflate [drug] prices . . . as ultimately paid by”

the insurance company. Id. ¶ 655.

And as to volume, the pharmaceutical company was also able “to

steer patients away from . . . alternative oncology drugs.” Id.

¶ 655; see also id. ¶ 753.

B. Procedural History

In light of the allegations set out above, the insurance

company11 (from here “the Plaintiff”) sued the pharmaceutical

company12 (from here “the Defendant”).

There are eight claims.

Five federal claims, each under the antitrust laws. See id. ¶¶

683-732. A common-law claim pressed in the alternative, but

with no reference to whose law is in play. See id. ¶¶ 764-85.

And two claims under the laws of Minnesota.13 See id. ¶¶ 733-63.

The focus here is on one of the Minnesota claims, under the

state’s Consumer Fraud Act. See Minn. Stat. § 325F.68-70

(2025).

C. The Motion

The Defendant has now moved to dismiss the Plaintiff’s Minnesota

Consumer Fraud Act claim. See Memorandum of Law in Support of

Defendants Celgene Corporation and Bristol-Myers Squibb

Company’s Motion to Dismiss (“Defendants’ Brief”) (ECF 531-1) at

1.

It contends that the Minesota Consumer Fraud Act claim cannot go

forward.14

11 Recall: United Healthcare Services, Inc.

12 Recall: Celgene Corporation.

13 Note that, per the complaint, the Plaintiff is a Minnesota-

based corporation; it is incorporated under Minnesota law; and

its corporate parent’s HQ is in Minnesota. See Complaint ¶ 11.

14 The Defendants previously raised similar arguments. See

Memorandum of Law in Support of Defendants Celgene Corporation

and Bristol-Myers Squibb Company’s Motion to Dismiss (ECF 104-1)

at 51-53, 55-57. The Court declined to reach those arguments

then. See In re Revlimid & Thalomid Purchaser Antitrust Litig.,

First, because it is meritless. See id. at 3-8; Reply in

Support of Defendant Celgene Corporation’s Motion to Dismiss

(“Defendant’s Reply”) (ECF 541) at 1-4.

And second, because there is no cause of action. So whatever

the Minesota Consumer Fraud Act does or does not prohibit ---

the Plaintiff cannot seek relief in court based on it. See

Defendants’ Brief at 8-9; Defendant’s Reply at 4-5; Defendants’

Sept. 22, 2025 Letter (ECF 566) at 1.

The Plaintiff sees things differently.

The claim has merit, it argues. See Plaintiff United Healthcare

Services, Inc.’s Memorandum of Law in Opposition to Defendant

Celgene Corporation’s Motion to Dismiss (Issue E) (“Plaintiff’s

Opposition”) (ECF 537) at 1-9. And there is a cause of action.

See id. at 2, 9-10.

II. Where To Start

As this Part explains, to analyze the Defendant’s motion, the

natural place to begin is with the question of whether there is

a cause of action here.

As to why, look to some basic principles.

* * *

Before an injured person can file a lawsuit, at least two things

are usually required from him.

First, there must be a relevant body of substantive law that he

can point to --- law that lays out the standards that were

assertedly violated.

And second, the injured person must also have a cause of action

--- a bit of legal authority15 that gives him in particular the

right to come into court, and to invoke the substantive law that

is said to have been broken.16

2024 WL 2861865, at *22 (D.N.J. June 6, 2024); see also

Defendants’ Brief at 1 n.2. But it takes them up now.

15 In whatever form. A statute, for example, or sometimes a

common-law rule. See footnotes 18 and 19.

16 “Cause of action” and “right of action” are often used as

synonyms. These terms have meant different things at different

times. See Samuel L. Bray & Paul B. Miller, Getting Into

* * *

To see all of this, walk through some examples.

Certain manufacturers have to make a report when particular

products are defective. Federal substantive law imposes this

duty on them. See 15 U.S.C. § 2064(b).

But a person injured by a defective product that was not

reported cannot sue based on the non-report. See, e.g.,

Kloepfer v. Honda Motors Co., 898 F.2d 1452, 1457 (10th Cir.

1990); In re All Terrain Vehicle Litig., 979 F.2d 755, 756-57

(9th Cir. 1992); Benitez–Allende v. Alcan Aluminio do Brasil,

S.A., 857 F.2d 26, 35 (1st Cir. 1988); see also Newlin v.

Invensys Climate Controls, 2006 WL 2385079, at *4-5, *7 (D.N.J.

Aug. 16, 2006).

The reason why not: he has “no . . . cause of action.”

Kloepfer, 898 F.2d at 1457.17

Another example.

Per federal substantive law, eligible Medicaid beneficiaries can

go to any “qualified” doctor. See 42 U.S.C. § 1396a(a)(23)(A).

But what if a state puts certain doctors out of bounds --- can a

private person then go ahead and sue, invoking the substantive

law rule? No, because the private person has no cause of

action. See Medina v. Planned Parenthood of S. Atl., 606 U.S.

357, 364, 385-86 (2026).

A last example.

As a matter of substantive constitutional law, there can be no

“unreasonable searches.” See U.S. Const. amend. IV. Federal

officials have a duty to follow this rule, as part of their

obligation to “take Care that the Laws be faithfully executed.”

Id. art. II, § 3. But whether a person injured by an unlawful

Equity, 97 Notre Dame L. Rev. 1763, 1770-72 (2022). On today’s

main meaning, a person has a cause of action (or a right of

action) if he in particular has “a legal entitlement to sue,” if

“there is some legal authority . . . that allows the plaintiff

to come into court in the first place.” Id. at 1771.

17 Therefore, “enforcement of the . . . reporting requirement[]

lies exclusively with the [government] and its pursuit of fines,

injunctions or imprisonment.” Fitzgerald v. Mannington Carpets,

Inc., 1994 WL 395743, at *4 (D. Md. July 12, 1994).

search has a right to come into court and sue --- that is a

separate question. It depends on whether there is an applicable

cause of action available to her. Under 42 U.S.C. § 1983.18 Or

under Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971).19

* * *

The above examples illustrate the main takeaway.

Namely, to come into court, an alleged breach of the substantive

law is generally necessary but not sufficient. To sue, an

injured person must also be able to point to a cause of

action/right of action. To a piece of legal authority that

empowers the plaintiff --- the plaintiff in particular, himself

--- to go to court, and to seek relief there based on a

violation of the law.20

18 If the search was done by a state official. (Note that the

Section 1983 “cause of action carries with it certain limits on

who can be sued and in what circumstances.” Pasquale v. Borough

of Mountainside, 2025 WL 3033989, at *2 (D.N.J. Oct. 30, 2025).

Similarly, the Minnesota cause of action put on the table here

imports its own limits on how it can be used. More on that in

Part III.A.)

19 If the search was by a federal official. For a case in which

there was an allegedly unlawful search but the assertedly

injured party could not come into court, for lack of a Bivens

right of action, see, for example, Hernandez v. Mesa, 589 U.S.

93 (2020).

20 In some contexts, it is taken for granted that a right of

action comes along with a particular substantive law duty. The

right of action and the substantive law duty are thought of as

all but necessarily bundled together, irreducible parts of the

same package. Think of an everyday car-accident tort suit. Is

there a cause of action that allows the suit to go forward?

Almost always: yes, and plainly so. The question seems obscure

(and the answer seems obvious) in part because it has been

treated as a given for so long that “[a] tort assumes [both]

that A has a duty to B not to interfere with certain cognizable

interests, and [that] the breach of the duty by A gives B the

legal power to seek compensation [in court].” E. Garrett West,

Refining Constitutional Torts, 134 Yale L.J. 858, 878 (2025)

(emphasis added). Why did this view first take hold? Maybe, in

part, because some of the classic parts of our private law are

As the Third Circuit has explained, “[t]o sue in federal court,

a plaintiff” must arrive at the courthouse with “a cause of

action.” United States v. Hallinan, 75 F.4th 148, 151 (3d Cir.

2023). It is that cause of action that “gives the injured party

the right to sue for redress.” Id.

* * *

As a matter of federal law, determining whether there is a cause

of action is generally something to work through at the

beginning of a case. See, e.g., Vanderklok v. United States,

868 F.3d 189, 197 (3d Cir. 2017) (“the issue of whether a cause

of action even exists . . . is a threshold question”).21

built in a “relational” way. See E. Garrett West,

Constitutional Private Law, 103 Wash. U. L. Rev. 409, 416-17,

419-23 (2025). And where that is the case, the substantive law

not only assigns a duty to a possible defendant --- but also

seems to indicate (implicitly, though with real specificity) who

the possible plaintiff is. To make out a tort claim, for

example, the substantive law generally requires A to have had a

duty to B --- to B in particular. And that largely answers the

who-can-sue question. B can. Because the substantive law veers

close, on its own, to implicitly answering the who-can-sue

question, there has perhaps been less of a felt need to

separately address that question --- through a free-standing

cause of action/right of action analysis. Same rough points as

to contract law. The substantive law is generally that C has a

duty to abide by contracts, but only those she has signed ---

for example, a contract with counterparty D. Under the

substantive law, C is not allowed to violate her contractual

obligation to D. And that essentially answers the who-can-sue

question. D can. If that is cleared up by the substantive law,

why go down the road of a free-standing cause of action/right of

action analysis?

21 See also, e.g., Elhady v. Unidentified CBP Agents, 18 F.4th

880, 881 (6th Cir. 2021) (“the first question a court should ask

is whether a cause of action exists”); R.I. Dep’t of Env’t Mgmt.

v. United States, 304 F.3d 31, 40 (1st Cir. 2002) (“the question

of whether the [plaintiff] . . . has a valid cause of action is

an important one that we address as a threshold issue”); see

also Crane Co. v. Am. Standard, Inc., 603 F.2d 244, 248 (2d Cir.

1979) (referring to “the threshold determination of whether the

plaintiff possesses a cause of action”); Raypath, Inc. v. City

Similarly, Minnesota law takes the cause of action question as

one to resolve early on. Under Minnesota law, the cause of

action question can be a jurisdictional one.22 See State ex rel.

McClure v. Sports & Health Club, Inc., 370 N.W.2d 844, 850

(Minn. 1985); accord Marine Credit Union v. Detlefson-Delano,

830 N.W.2d 859, 864 n.3 (Minn. 2013) (same); Bank of Am., N.A.

v. Smith, 2014 WL 3801306, at *2 (Minn. Ct. App. Aug. 4, 2014)

(same); cf. State v. Dist. Ct. of Ramsey Cnty., 114 Minn. 364,

366 (1911) (“The jurisdiction of the district court . . .

depend[s] . . . upon the right of action.”).

And under Minnesota law,23 such jurisdictional issues must come

first. See Martin v. Simon, 6 N.W.3d 443, 450 (Minn. 2024).

* * *

In a nutshell: the question of whether there is a cause of

action should generally be resolved at the outset of the case,

under both federal law and Minnesota law.

So the Court will start there.

III. The Cause of Action

Is there a cause of action that lets the Plaintiff-insurance

company --- itself, in particular --- sue here under the

Minnesota Consumer Fraud Act?

The Minnesota Consumer Fraud Act “does not generally provide a

private right of action.” Defendants’ Brief at 8-9; see, e.g.,

In re Nat’l Arb. F. Trade Pracs. Litig., 704 F. Supp. 2d 832,

838-39 (D. Minn. 2010) (citing Wiegand v. Walser Auto. Grps.,

Inc., 683 N.W.2d 807, 809 (Minn. 2004)); Stone v. Invitation

Homes, Inc., 986 N.W.2d 237, 250 (Minn. Ct. App. 2023).

of Anchorage, 544 F.2d 1019, 1021 (9th Cir. 1976) (“As a

threshold matter, we may examine the question whether a private

cause of action exists in favor of a particular plaintiff.”).

22 This is a bit different than federal law. See, e.g., Burks

v. Lasker, 441 U.S. 471, 476 n.5 (1979) (“The question whether a

cause of action exists is not a question of jurisdiction, and

therefore may be assumed without being decided.”); Hallinan, 75

F.4th at 151 (“a cause of action is not jurisdictional”).

23 As under federal law. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94–95 (1998).

Therefore, private litigants who want to file a Minnesota

Consumer Fraud Act claim must generally look elsewhere for a

cause of action.24

Typically, plaintiffs aim to use Minnesota’s Private Attorney

General Statute (“the Private AG statute”), Minn. Stat. § 8.31

subdiv. 3a (2025). See Event Sales, Inc. v. TJX Cos., 793 F.

Supp. 3d 1013, 1040 (D. Minn. 2025).

The Private AG statute sometimes gives private entities a cause

of action that allows them to sue based on alleged violations of

the Minnesota Consumer Fraud Act. See Semler v. Eastbay Inc.,

2021 WL 1245266, at *1 (Minn. Ct. App. Apr. 5, 2021); Kramer v.

Ford Motor Co., 2016 WL 827746, at *25 (D. Minn. Feb. 29, 2016);

see also Graphic Commc’ns Loc. 1B Health & Welfare Fund A v. CVS

Caremark Corp., 850 N.W.2d 682, 693 (Minn. 2014); Plaintiff’s

Opposition at 9.

And that is the cause of action that the Plaintiff invokes in

this case. See Complaint ¶ 752; see also Plaintiff’s Opposition

at 9.

* * *

Can the Plaintiff use the Private AG statute cause of action

here?

The parties disagree. Compare Plaintiff’s Sept. 22, 2025 Letter

(ECF 567) at 1 (yes), with Defendants’ Sept. 22, 2025 Letter at

1 (no).

To begin resolving this dispute, look to the statute and the

Minnesota Supreme Court’s interpretation of it.

A. The Public Benefit Rule

In its key case in this area, Ly v. Nystrom, the Minnesota

Supreme Court explained that the Private AG statute makes

“sweeping remedies” available to private litigants. 615 N.W.2d

302, 311 (Minn. 2000). And the Minnesota Supreme Court

24 “Generally” because in 2023= Minnesota added a Consumer Fraud

Act cause of action, but only for “natural person[s] or family

farmer[s].” Minn. Stat. § 325F.70, subdiv. 3 (2025); see also

Event Sales, Inc. v. TJX Cos., 793 F. Supp. 3d 1013, 1040 (D.

Minn. 2025). That has no bearing here. The Plaintiff is a

corporation. See Complaint ¶ 11.

suggested that this spun off “concern about how broadly the

legislature intended the statute to be applied.” Id.

With this in mind, the high court looked to the “history of the

passage of the Private AG [s]tatute” --- and concluded that “the

statutory purpose” of the law was only to empower “injured

private parties to enforce the unlawful business practices

statutes as a substitute for the attorney general.” Id.

(emphasis added).

The state’s Attorney General, the Supreme Court suggested, was

understood to be too busy to handle all meaningful consumer

fraud in Minnesota. See id. (discussing the history).

So the Private AG statute, per the Court, was put there to seal

up the enforcement gap --- by allowing private entities to go

into the breach themselves, and to sue as the Attorney General

himself would have been able to. See id. at 313 (“[the Private

AG statute] provides a reward to private parties for . . .

functions that, to that point, had been the responsibility of

the attorney general”).

And because the Private AG statute “grants private citizens the

right to act as a ‘private’ attorney general,” it follows ---

and this is critical --- that “the role and duties of the

attorney general with respect to enforcing the fraudulent

business practices laws must define the limits of the private

claimant under the statute.” Id. (emphasis added).25

On this understanding, a “private attorney general” can step

into the actual Attorney General’s shoes. But the private AG

cannot try on a bigger pair --- purporting to assume powers that

the actual Attorney General does not himself have.

25 See also Jensen v. Duluth Area YMCA, 688 N.W.2d 574, 578

(Minn. Ct. App. Nov. 16, 2004); Khoday v. Symantec Corp., 858 F.

Supp. 2d 1004, 1016 (D. Minn. 2012); Andersen ex rel. Peter J.

Andersen, Sr. Fam. Tr. v. Karahalios, 2018 WL 1247063, at *5

(Minn. Ct. App. Mar. 12, 2018); see also Behrens v. United

Vaccines, Inc., 228 F. Supp. 2d 965, 969 (D. Minn. 2002) (“Since

the private litigant would be acting in lieu of the Attorney

General, the scope of the Attorney General’s roles and duties,

would properly define the scope of the private litigant’s roles

and duties.”); Berczyk v. Emerson Tool Co., 291 F. Supp. 2d

1004, 1019 (D. Minn. 2003).

“[T]he sweep of the [Private AG] statute can be no broader than

the source of its authority --- that of the attorney general[.]”

Ly, 615 N.W.2d at 313.26

* * *

“[T]he role and duties of the attorney general . . . must define

the limits of the private [attorney general].” Ly, 615 N.W.2d

at 313.

What are those?

“The duty of the attorney general’s office, and thus the purpose

of any statute granting private citizens authority to bring a

lawsuit in lieu of the attorney general, is the protection of

public rights and the preservation of the interests of the

state.” Id. (emphasis added).

It follows that a private plaintiff who wants to bring a claim

via the Minnesota Private AG statute must satisfy the same

“public” test as the Attorney General.

And so the bottom line: private plaintiffs can use the Private

AG statute cause of action only if they first “demonstrate that

their cause of action benefits the public.” Id. at 314

(emphasis added); see also 27 Michael K. Steenson, J. David

Price & Shane A. Anderson, Minnesota Practice: Products

Liability Law §§ 6.12-13 (2025-2026 ed.).

B. An Implication of the Rule

Applying the just-referenced “public benefit” rule, courts have

developed fine-spun doctrines as to the kinds of cases in which

there is a private-party right of action under the Minnesota

Private AG statute.

But the details of these doctrines can distract from the key

30,000-foot fact: in a given circumstance, a private party’s

ability to go into court in an affirmative-enforcement capacity

26 To be sure, there are some differences when a lawsuit is

brought by the Minnesota Attorney General rather than by a

private plaintiff. Differences as to settlement, for example.

See Curtis v. Altria Grp., Inc., 813 N.W.2d 891, 901 (Minn.

2012). And remedies. See Findling v. Grp. Health Plan, Inc.,

998 N.W.2d 1, 7 n.4 (Minn. 2023). But these do not matter here.

seems to be coterminous with the ability of the Minnesota AG to

himself affirmatively go into court.

Subject to some exceptions not relevant here,27 private and

public enforcement powers rise and fall together. They are a

yoked pair.

This means that any decision by the Court here, about whether

the Plaintiff has a cause of action on the allegations in this

case --- that is tantamount to a decision as to whether the

Minnesota Attorney General could himself proceed in a case like

this one.28

* * *

A federal court should be especially careful when it comes to

issuing a decision that necessarily rests on a particular

understanding of the scope of a key state official’s authority -

-- a decision that, later, might be cited as precedent for

limiting the state official’s power, or for expanding it.

Before issuing a decision here that is implicitly predicated on

a view as to the reach of the Minnesota Attorney General’s

power, common sense suggests that the Court should consider

asking the Attorney General for his views.

Can this be done? Take that up in Part IV. Should it be done?

Work that through in Part V.

IV. Can the Court Ask?

Can a federal court, sua sponte, seek to learn the legal

position of an impacted non-party, like the Minnesota Attorney

General here?

Yes. “[D]istrict courts possess inherent authority to appoint

‘friends of the court’ to assist in their proceedings.” In re

Bayshore Ford Truck Sales, Inc., 471 F.3d 1233, 1249 n.34 (11th

Cir. 2006) (citations omitted); see also In re Domestic Airline

27 See footnote 26.

28 As to the Minnesota Attorney General’s affirmative

enforcement powers, see, for example, Head v. Special Sch. Dist.

No. 1, 288 Minn. 496, 503 (1970) (describing his powers to

“institut[e] proper proceedings to secure the enforcement of

law”), abrogated on other grounds by, Nyhus v. Civ. Serv. Bd.,

305 Minn. 184 (1975).

Travel Antitrust Litig., 2025 WL 2760374, at *7 (D.D.C. Sept.

29, 2025); Price v. Corzine, 2006 WL 2252208, at *2 (D.N.J. Aug.

7, 2006); Smith v. Chrysler Fin. Co., 2003 WL 328719, at *8

(D.N.J. Jan. 15, 2003).

And federal courts have exercised this “inherent authority” to

seek outside input on a sua sponte basis, unprompted by a party.

The Supreme Court has done this.29 So have the courts of

appeals.30 And the district courts, too.31

29 See, e.g., Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 209

(2011); Levinson v. Spector Motor Serv., 330 U.S. 649, 654

(1947).

30 See, e.g., Ashby v. Warrick Cnty. Sch. Corp., 908 F.3d 225,

227 (7th Cir. 2018) (“Because resolution of the appeal turns on

the proper interpretation and application of statutory and

regulatory language on which we have little precedent, we

invited the Department of Justice, the agency charged with the

administration of the statute, to submit a brief as amicus

curiae.”); Qwest Corp. v. Colo. Pub. Utils. Comm’n, 656 F.3d

1093, 1098 (10th Cir. 2011) (“At our invitation, the FCC filed

an amicus brief.”); Empire Rayon Yarn Co. v. Am. Viscose Corp.,

364 F.2d 491, 492 (2d Cir. 1965) (“Because of the importance of

the issue involved, the Court, sua sponte, requested the Federal

Trade Commission to submit a brief amicus curiae on the issues

raised by this case.”) (cleaned up); Goldberg v. Faber Indus.,

Inc., 291 F.2d 232, 235 (7th Cir. 1961) (“This Court sua sponte

invited the Interstate Commerce Commission to file a brief

amicus curiae.”); J.M. Huber Corp. v. Denman, 367 F.2d 104, 111

(5th Cir. 1966) (“In this and the other case this Court was of

the view that the public interest in this question loomed so

large, that the Court should have at least the tentative views

of the FPC. Accordingly, this Court requested that agency to

file a brief amicus.”).

31 See, e.g., Lopez v. Bank of Orrick, 2024 WL 6952824, at *2

(N.D. Ill. Sept. 26, 2024) (“The Court invited the [Consumer

Financial Protection] Bureau to file an amicus brief on this

question of statutory and regulatory interpretation.”); Cheetham

v. CSX Transp., 2012 WL 1424168, at *2 (M.D. Fl. Feb. 13, 2012)

(“the Court invited the Commissioner of Internal Revenue to file

an amicus curiae brief”); Costello v. Dugger, 353 F. Supp. 1324,

1325 (M.D. Fl. 1972) (sua sponte appointing the United States as

amicus curiae in civil actions brought by inmates against the

Florida Division of Corrections); Pegues v. Miss. State Emp.

Serv., 57 F.R.D. 102, 103 (N.D. Miss. 1972) (“At the invitation

And courts at every level of the federal judiciary have asked

state attorneys general to file amicus briefs. See, e.g.,

Melrose Distillers, Inc. v. United States, 358 U.S. 878, 878

(1958); Wenger v. Frank, 266 F.3d 218, 225 (3d Cir. 2001);

United States v. Castillo, 896 F.3d 141, 147 (2d Cir. 2018);

Gowanus Indus. Park, Inc. v. Hess Corp., 2011 WL 1431621, at *1,

*8 (E.D.N.Y. Apr. 8, 2011).

In short: sua sponte, a federal district court can ask a

nonparty --- including a state attorney general --- to weigh in

on a pending legal question.

That tees up the next question: should the Court exercise that

authority in this case, as to the Minnesota AG’s position on the

Minnesota Private AG statute?

Take that up now.

V. Should the Court Ask?

There is no “statute, rule or binding judicial precedent

controlling a district court’s power[s]” with respect to “amicus

participation.” Dobson Mills Apartments, L.P. v. City of

Philadelphia, 2022 WL 558348, at *1 (E.D. Pa. Feb. 23, 2022);

see also, e.g., Behar v. Pa. Dep’t of Transp., 791 F. Supp. 2d

383, 389 n.1 (M.D. Pa. 2011); Sec. & Exch. Comm’n v. Ripple

Labs, Inc., 2021 WL 4555352, at *5 (S.D.N.Y. Oct. 4, 2021);

Flaws v. Akal Sec., Inc., 2020 WL 3317611, at *1 (W.D. Mo. June

18, 2020); Club v. Fed. Emergency Mgmt. Agency, 2007 WL 3472851,

at *1 (S.D. Tex. Nov. 14, 2007); U.S. ex rel. Gudur v. Deloitte

Consulting LLP, 512 F. Supp. 2d 920, 927 (S.D. Tex. 2007).

Instead, whether to allow amicus briefing is a discretionary

call. See, e.g., Waste Mgmt. of Pa., Inc. v. City of York, 162

F.R.D. 34, 36 (M.D. Pa. 1995); Ferguson v. Shinn, 2023 WL

10512175, at *24 (D. Ariz. Oct. 27, 2023); Sec. & Exch. Comm’n

v. Bittrex Inc., 2023 WL 4866373, at *1 (W.D. Wash. July 31,

2023); Texas v. United States, 2021 WL 2172837, at *1 (S.D. Tex.

Mar. 5, 2021); Jin v. Ministry of State Sec., 557 F. Supp. 2d

131, 136 (D.D.C. 2008); Am. Humanist Ass’n v. Md.-Nat’l Cap.

Park & Planning Comm’n, 303 F.R.D. 266, 269 (D. Md. 2014).

of the court the Secretary [of Labor] has filed a brief

amicus.”).

In deciding how to exercise that discretion, federal courts tend

to consider three main factors.32 See, e.g., Kyocera Document

Sols. Am., Inc. v. Div. of Admin., 708 F. Supp. 3d 531, 542 n.16

(D.N.J. 2023); Bernard v. Cosby, 2022 WL 3273877, at *1 (D.N.J.

Aug. 11, 2022); Granillo v. FCA US LLC, 2018 WL 4676057, at *4

(D.N.J. Sept. 28, 2018); Pro. Drug Co. v. Wyeth Inc., 2012 WL

4794587, at *1 (D.N.J. Oct. 3, 2012); McVicker v. King, 2009 WL

10674503, at *1 (W.D. Pa. Apr. 30, 2009); Feesers, Inc. v.

Michael Foods, Inc., 2006 WL 8448763, at *1 (M.D. Pa. Mar. 21,

2006); Liberty Res., Inc. v. Phila. Hous. Auth., 395 F. Supp. 2d

206, 209 (E.D. Pa. 2005); Sciotto v. Maple Newtown Sch. Dist.,

70 F. Supp. 2d 553, 555 (E.D. Pa. 1999); Save the Manatee Club

v. U.S. Env’t Prot. Agency, 2022 WL 19918052, at *1 (M.D. Fla.

Nov. 22, 2022).

Move through these three factors below, plus a fourth.

A. Interest

The first factor: does the proposed “amicus curiae ha[ve] a

‘special interest’ in the particular case”? Bernard, 2022 WL

3273877, at *1 (cleaned up).

Here, yes.

As explained above, Minnesota’s Attorney General would seem to

have a practical stake in the resolution of the cause of action

question on the table here. Determining whether there is a

32 Some cases also speak of another factor: whether “the

[nonparty] is not partial to a particular outcome in the case.”

Bernard v. Cosby, 2022 WL 3273877, at *1 (D.N.J. Aug. 11, 2022).

Amicus briefs may, perhaps, be especially valuable when they are

filed by an impartial entity. See Voices for Choices v. Ill.

Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003); Ryan v.

Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir.

1997); United States v. Michigan, 940 F.2d 143, 164-65 (6th Cir.

1991); U.S. ex rel. Hooper v. Lockheed Martin Corp., 2014 WL

12561070, at *4 (C.D. Cal. Jan. 17, 2014); United States v.

Bayer Corp., 2014 WL 12625934, at *1 (D.N.J. Oct. 23, 2014);

United States v. Alkaabi, 223 F. Supp. 2d 583, 592 (D.N.J.

2002). But the requirement that an amicus be disinterested is

“outdated.” Neonatology Assocs., P.A. v. C.I.R., 293 F.3d 128,

129, 131 (3d Cir. 2002); see also Tenafly Eruv Ass’n, Inc. v.

Borough of Tenafly, 195 F. App’x 93, 99 n.8 (3d Cir. 2006).

cause of action under the Minnesota Private AG statute will

generate, by a kind of bank shot, a de facto statement as to the

scope of the Minnesota Attorney General’s affirmative-

enforcement powers.

B. Representation

In thinking through possible amicus participation, a second

question is whether the potential “amicus curiae’s interest is .

. . [already] represented . . . in the case.” Bernard, 2022 WL

3273877, at *1 (cleaned up).

Not here.

The parties’ legal papers do not allude to the possibility noted

in this Opinion --- that a Private AG statute ruling in this

case could have implicit knock-on effects on the reach of the

Attorney General’s affirmative-enforcement power.

Accordingly, amicus briefing from the Minnesota Attorney General

would likely surface a viewpoint that is not reflected what has

been put before the Court.

C. Usefulness

A third factor: whether the possible amicus’ views could be

“useful.” Bernard, 2022 WL 3273877, at *1 (cleaned up).

Yes. The Minnesota Attorney General surely has great expertise

as to the relevant issue. And he may well have a considered,

long-standing33 set of legal positions in this area --- that are

reflected in, say, internal guidance documents34 or filings from

other litigations.

33 Under Minnesota law, a “longstanding application” of the law

by the state executive branch can sometimes get deference. See

21 William J. Keppel, Minnesota Practice: Administrative

Practice & Procedure § 14.05.1 (2d ed. 2025); see also In re

Est. of Ecklund, 20 N.W.3d 351, 360 (Minn. 2025); Lagasse v.

Horton, 982 N.W.2d 189, 199 (Minn. 2022).

34 It is possible that the parties cannot readily access these

sorts of internal materials. But as an amicus, the Minnesota

Attorney General might opt to bring them forward, and that could

prove “useful.”

In addition, part of the “use” here of amicus participation

might be learning about the Attorney General’s track record and

what it says about the scope of his authority.

For example, are there enforcement actions that the Minnesota

Attorney General has previously brought that rest on a broader

conception of his power than might be suggested by a holding, in

this case, that there is no cause of action under the Private AG

statute?

On the flip side, has the Minnesota Attorney General taken the

position that he lacks the power to pursue certain enforcement

actions --- and in doing so has endorsed a narrower view of his

power than might be implied by a holding, here, that there is a

Private AG statute cause of action?

And note that, per the Plaintiff, certain government enforcement

entities have pursued actions against the “independent”

charities that fund patients’ co-pays --- zeroing in on

“precisely the type of conduct” alleged in this case. See

Complaint ¶¶ 673-676, 675 n.229. Has the Minnesota Attorney

General pressed any such actions?35

35 The Minnesota Attorney General’s views might be especially

“useful” if it gets deference. As to whether it does, there

might be arguments on both sides. For example, the Minnesota

Supreme Court has instructed that, in cases where “the meaning

of a statute is doubtful, courts should give great weight to a

construction placed upon it by the Department charged with its

administration.” Mammenga v. State Dep’t of Hum. Servs., 442

N.W.2d 786, 792 (Minn. 1989) (cleaned up); see also Est. of

Atkinson v. Minn. Dep’t of Hum. Servs., 564 N.W.2d 209, 213

(Minn. 1997) (same); Minn. Transitions Charter Sch. v. Comm’r of

Minn. Dep’t of Educ., 844 N.W.2d 223, 231 (Minn. Ct. App. 2014)

(same). Given the relationship between (i) the Minnesota

Private AG statute and (ii) the scope of the powers of the

Minnesota Attorney General --- might Minnesota’s “charged with

administration” deference be in play? Or does the (i)/(ii)

relationship cut the other way, and suggest that there can be no

deference here? After all, the scope of the Private AG statute

speaks indirectly to the scope of the Minnesota Attorney

General’s power. And Minnesota agencies get no deference as to

statutes that map out their own jurisdiction. See, e.g., Frost-

Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639,

642 (Minn. 1984); see also In re Hubbard, 778 N.W.2d 313, 318

n.4 (Minn. 2010).

D. Novelty

Look now to a fourth and final reason to solicit the views of

the Minnesota Attorney General.

The core question here, as noted, is whether there can be a

cause of action under the Minnesota Private AG statute in the

circumstances of this case.

That seems to raise a novel question. To see the point, take it

from two sides --- the price aspect of the Plaintiff’s theory

here, and the volume aspect. See generally Part I.A.

* * *

Price first.

Recall that the Plaintiff’s Minnesota Consumer Fraud Act claim

rests in part on the idea that charities’ subsidies of

insurance-related-costs36 helped the Defendant to keep the price

of the drug high --- by releasing the pressure that otherwise

would have welled up to get the drug’s price down. This is the

safety-valve theory discussed in Part I.A.37

36 As defined in Part I.A.

37 The theory is not that the Defendant sought to have charities

pay patients’ insurance-related-costs so that patients would

have a strong reason to buy today (while prices are higher,

because of the monopoly-like conditions allowed to an extent by

patent law) rather than tomorrow (when prices would potentially

be lower, as generics come online and the monopoly accordingly

loosens up). To a pharmaceutical company, the economic logic of

such a set-up would not be hard to see. If prices will

predictably fall over time, a monopolist will generally wish to

set prices at time one with an eye to what they will be at time

two --- because otherwise consumers will sit on the sidelines at

time one, waiting for a price-drop at time two. Cf. Francesco

Nava & Pasquale Schiraldi, Differentiated Durable Goods

Monopoly: A Robust Coase Conjecture, 109 Am. Econ. Rev. 1930,

1930 (2019) (discussing the Coase conjecture); R.H. Coase,

Durability and Monopoly, 15 J.L. & Econ. 143-49 (1972). But

that would probably make little sense here --- a cancer patient

cannot simply wait for a drug she needs now. And in any event,

the Court does not take the Plaintiff to be pressing this

argument.

This is not an everyday, off-the-rack legal theory. The

parties’ briefs do not spotlight any cases that address it in an

on-point way.

Thinking about whether the Minnesota Private AG statute allows

for a lawsuit as to this relatively novel substantive claim

makes, itself, for a relatively novel cause of action question.

* * *

Note now the second aspect of the Plaintiff’s Minnesota Consumer

Fraud Act claim. This is the volume-related theory. See

generally Part I.A.

The theory is that the charities allegedly funded by the

Defendant-pharmaceutical company induced people to buy more of

the drug in the aggregate than they otherwise might have, with

the Plaintiff-insurance company left to cover the cost of that

many more prescriptions. See Complaint ¶¶ 653, 655, 671-72,

682, 753, 756.

As a matter of substantive law, this is arguably somewhat more

analogous to familiar sorts of fraud.

But it still raises novel questions as to whether there is a

cause of action.

Some cases, for example, suggest that a private party cannot use

the Minnesota Private AG statute where the underlying fraud

claim stems from “private contracts.”38 That might potentially

suggest that there can be no cause of action here. Because at

the heart of this case are the insurance contracts that linked

the Plaintiff-insurance company with the cancer patients who

received the drug. See id. ¶ 760.

But what if that is the wrong contractual relationship to look

to? Maybe what matters is whether there was or was not a

contract between the cancer patients and the charities that

allegedly paid part of their insurance-related-costs? The

caselaw does not directly answer.

38 Adams v. Rosensteel, 2013 WL 6223562, at *6 (Minn. Ct. App.

Dec. 2, 2013); see also, e.g., Tyler Holdings, Inc. v. JJT, LLC,

2008 WL 5136443, at *1, *8 (Minn. Ct. App. Dec. 9, 2008).

Or maybe “private contracts” do not weigh against a cause of

action if the alleged fraud is especially widespread?39 But is a

fraud widespread enough if, as here, it has only one main

alleged victim that is a party to the case?40

The Court expresses no view here on any of this. The point of

raising these questions is only to suggest that there are

potentially novel issues in the mix. How they map onto the

existing caselaw may not be obvious.

39 See, e.g., Workers’ Comp. Reinsurance Ass’n v. Wells Fargo

Bank, N.A., 2012 WL 1253094, at *11 (Minn. Ct. App. Apr. 16,

2012); Mooney v. Allianz Life Ins. Co. of N. Am., 2009 WL

511572, at *3 (D. Minn. Feb. 26, 2009).

40 See, e.g., Schaaf v. Residential Funding Corp., 2006 WL

2506974, at *16 (D. Minn. Aug. 29, 2006) (no cause of action

where “Plaintiffs s[ought] to pursue relief on behalf of [only]

a number of investors”); Burtch v. Oakland Park, Inc., 2006 WL

1806196, at *6 (Minn. Ct. App. July 3, 2006) (no cause of action

because “the mere fact that certain misrepresentations would

affect a finite group of tenants was not enough from which to

infer that the general public would be benefited by the

action”); Thorkelson v. Publ’g House of Evangelical Lutheran

Church in Am., 764 F. Supp. 2d 1119, 1132 (D. Minn. 2011);

Cedillo v. Igbanugo, 2019 WL 2168766, at *1, *8 (Minn. Ct. App.

May 20, 2019) (no cause of action in a malpractice suit by three

former clients, because there was no public benefit). But see

Schaff v. Chateau Communities, Inc., 2005 WL 1734031, at *4

(Minn. Ct. App. July 26, 2005) (confirming the existence of a

cause of action where the defendant “is in a business that has

the potential to affect an even larger number of people, and the

resolution of th[e instant] case could extend to . . . other”

similarly situated persons); Varela v. State Farm Mut. Auto.

Ins. Co., 655 F. Supp. 3d 813, 824-25 (D. Minn. 2023) (same,

where relief might require an insurer “to change all its

contracts with insureds”); McDougall v. CRC Indus., Inc., 523 F.

Supp. 3d 1061, 1075-76 (D. Minn. 2021) (same, where a win for

the plaintiff “may lead to changes that have a distinct public

benefit by deterring . . . abuse”). Note that if an alleged

fraud plausibly kept prices artificially high across the board,

it could potentially have had many more victims --- not just the

customers of the Plaintiff-insurance company, but everyone who

paid more for the drug. The higher-prices aspect of this case

might conceivably involve a public benefit in ways that the

higher-volume aspect of the case does not.

And that is another reason to seek the Minnesota Attorney

General’s views.

* * *

To see why, take an analogy.

Under the supplemental jurisdiction statute, when a plaintiff

presses a claim that “raises a novel . . . issue of [s]tate

law”41 --- that can be a reason for a federal court to let the

case run forward in state court. See, e.g., Combs v. Homer-Ctr.

Sch. Dist., 540 F.3d 231, 253-54 (3d Cir. 2008); Specht v.

Suarez, 798 F. Supp. 3d 485, 508 (D.N.J. 2025); see also

Pinkston v. City of Jersey City, 699 F. Supp. 3d 298, 305

(D.N.J. 2023).

The federal court can resolve the novel state-law issue. But

why not allow the state court to handle it? After all, “[s]tate

judges are the experts on state law.” Courney v. City of

Englewood, 793 F. Supp. 3d 615, 628 n.23 (D.N.J. 2025)

(collecting cases).

The analogy to Section 1367 is not perfect. But it sheds light

anyway.

Given the “novel[ty]” of some of the questions here, and the

Minnesota Attorney General’s undoubted “expert[ise]” as to the

scope of his own powers --- why not invite him to participate

here as an amicus?42

VI. Conclusion

For the reasons set out above, the Court will invite the

Attorney General of Minnesota to submit an amicus brief as to

41 28 U.S.C. § 1367(c)(1).

42 Minnesota is “a sovereign entity in our federal system.”

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996).

Federal courts must show appropriate respect for “the dignity .

. . inhering in that [sovereign] status.” Alden v. Maine, 527

U.S. 706, 714 (1999). And “comity is not limited to the

judicial branch of a state government.” Calderon v. Thompson,

523 U.S. 538, 552 (1998). The views of a state’s executive

branch should also be given due weight. See id. And the

Attorney General is at the heart of Minnesota’s. See Minn.

Const. art. V, § 1.

whether, on the allegations in this case, the Plaintiff can use

the cause of action in the Minnesota Private AG statute to bring

the Minnesota Consumer Fraud Act claim that it seeks to press.

An appropriate Order will issue later today”

On this 18th day of March, 2026. a

Michael E. Farbiarz, U.S.D.J.