# Opinion

> District Court, D. New Jersey · March 18, 2026

URL: https://www.frixlaw.com/law-library/cases/11345344

## Case

- **Full name:** In re Revlimid & Thalomid Purchase Antitrust Litigation
- **Court:** District Court, D. New Jersey
- **Decided:** March 18, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11345344

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11345344. Public record. Not legal advice.