# Opinion

> District Court, W.D. New York · June 26, 2026

URL: https://www.frixlaw.com/law-library/cases/11348909

## Case

- **Full name:** Mosaic Health, Inc. and Central Virginia Health Services, Inc., individually and on behalf of all those similarly situated v. Sanofi-Aventis U.S., LLC, Eli Lilly and Company, Lilly USA, LLC, Novo Nordisk Inc., and AstraZeneca Pharmaceuticals LP
- **Court:** District Court, W.D. New York
- **Decided:** June 26, 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/11348909

## How later opinions describe it (automated extraction)

- explaining that the covered entities “commenced suit against Astra and eight other pharmaceutical companies, alleging that the companies were overcharging 340B health-care facilities in violation of the PPAs to which the companies subscribed”
- explaining that a motion to dismiss an amended complaint is not “available” before the amended complaint is filed

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________

MOSAIC HEALTH, INC. and CENTRAL
VIRGINIA HEALTH SERVICES, INC.,
individually and on behalf of all those
similarly situated,
DECISION AND ORDER
Plaintiffs,
6:21-CV-06507 EAW CDH
v.

SANOFI-AVENTIS U.S., LLC, ELI
LILLY AND COMPANY, LILLY USA,
LLC, NOVO NORDISK INC., and
ASTRAZENECA PHARMACEUTICALS
LP,

Defendants.
_____________________________________

INTRODUCTION
In this putative class action, plaintiffs Mosaic Health, Inc. (“Mosaic Health”)
and Central Virginia Health Services, Inc. (“CVHS”) (collectively “Plaintiffs”) allege
that defendant pharmaceutical companies Sanofi-Aventis U.S., LLC (“Sanofi”), Eli
Lilly and Company and Lilly USA, LLC (“Eli Lilly”), Novo Nordisk Inc. (“Novo
Nordisk”), and AstraZeneca Pharmaceuticals LP (“AstraZeneca”) (collectively
“Defendants”) have violated state and federal antitrust laws by “coordinating to
retract a long-standing discount for safety-net hospitals and clinics.” (Dkt. 93 at ¶ 1).
Plaintiffs have also asserted claims for unjust enrichment under the laws of several
states. (Id. at ¶¶ 388-480).
Defendants have moved for dismissal of Plaintiffs’ state-law antitrust and
unjust enrichment claims. (Dkt. 113). For the reasons that follow, Defendants’ motion
is granted in part and denied in part.

BACKGROUND
I. Factual Background
The facts that follow are taken from the second amended complaint, which is
the operative pleading. (Dkt. 93). Consistent with the standard on a motion to
dismiss, the Court treats Plaintiffs’ allegations as true.
This case involves “a special discount offered to safety-net hospitals and clinics,
which purchase drugs filled by their patients at retail pharmacies.” (Id. at ¶ 3). This

discount is “known as the 340B Drug Discount,” because it “is calculated by a
mathematical formula codified at Section 340B of the Public Health Service Act, 42
U.S.C. § 256b.” (Id.). For a number of years, pharmaceutical companies “offered the
340B Drug Discount to safety-net hospitals and clinics, not only for on-site use but
also for purchase and distribution by retail pharmacies.” (Id.). These retail
pharmacies, which are typically called “Contract Pharmacies,” have contracts with

safety-net providers pursuant to which the providers “purchase drugs on their own
accounts, discounted with the 340B Drug Discount, to be delivered to and dispensed
by the Contract Pharmacies.” (Id.). “Since at least 1996, and in greater volumes since
2010, all drug companies participating in the 340B Drug Discount Program have
offered Contract Pharmacy 340B Drug Discounts to covered entities.” (Id. at ¶ 57).
Plaintiffs and the members of the putative class are “safety-net hospitals and
clinics” that “provide healthcare services to low-income and underserved patients[.]”
(Id. at ¶ 5). These services are funded in significant part through savings derived

from 340B Drug Discounts. (Id.). “The net savings and revenue generated through
access to 340B Drug Discounts is sometimes referred to as 340B Savings.” (Id. at
¶ 25).
Defendants “are four drug companies that dominate three key markets for
diabetes treatments”—specifically, the “lucrative diabetes markets for: (i) rapid-
acting analog insulins; (ii) long-acting analog insulins; and (iii) incretin mimetics.”
(Id. at ¶ 2). Plaintiffs contend that in the summer of 2020—following the failure of a

joint lobbying effort by Defendants to limit 340B Drug Discounts with respect to
diabetes medications—Defendants entered into a conspiracy to “collusively
eliminat[e] or limit[] Contract Pharmacy 340B Drug Discounts for their drugs, most
significantly including their drugs dominating rapid-acting analog insulin, long-
acting analog insulin, and incretin mimetic sales.” (Id. at ¶ 6).
In the second half of 2020, each of Defendants “announced novel restrictions

on Contract Pharmacy 340B Drug Discounts.” (Id. at ¶ 133). On July 24, 2020,
AstraZeneca informed the Department of Health and Human Services (“HHS”) by
letter that beginning on October 1, 2020, it would recognize only one contract
pharmacy per covered entity for covered entities without an on-site dispensing
pharmacy. (Id. at ¶ 134). On July 27, 2020, Sanofi publicly announced that it was
implementing a new initiative that “would cut off all Contract Pharmacy 340B Drug
Discounts, which had been in place for a decade, unless covered entities . . . ent[ered]
into a contract to provide sensitive prescription claims data to a Sanofi vendor,
Second Sight Solutions, through a software portal called 340B ESP” on what

Plaintiffs contend were “commercially unreasonable terms[.]” (Id. at ¶ 136).
On August 19, 2020, Eli Lilly advised HHS by letter that effective September
1, 2020, it would end its practice of “honoring requests for 340B contract pharmacies
for orders on all Lilly products except where, primarily, a covered entity does not have
an in-house pharmacy.” (Id. at ¶ 137) (internal quotation marks omitted). Eli Lilly
“added a special exception to permit Contract Pharmacies to pass along certain
insulin products at cost,” but Plaintiffs assert that this “exception was infeasible for

covered entities and pharmacies, as it required the Contract Pharmacies to fill
prescriptions without any fee whatsoever.” (Id. at ¶ 138).
On December 1, 2020, Novo Nordisk informed HHS that “it would stop offering
Contract Pharmacy 340B Drug Discounts to hospital covered entities” effective
January 1, 2021. (Id. at ¶ 140). Defendants “have since made minor changes to their
exceptions, while maintaining their common approach of refusing to offer Contract

Pharmacy 340B Drug Discounts for the overwhelming majority of potential Contract
Pharmacy sales.” (Id. at ¶ 141). Defendants’ newly adopted restrictions had the
“immediate impact” of ending “the overwhelming majority of Contract Pharmacy
340B Drug Discount sales to covered entities.” (Id. at ¶ 177).
II. Procedural Background
Mosaic Health commenced this matter on July 30, 2021. (Dkt. 1). CVHS was
added as a plaintiff in the first amended complaint, which was filed on October 22,

2021. (Dkt. 41). Defendants filed a joint motion to dismiss the first amended
complaint on November 12, 2021. (Dkt. 47; Dkt. 48). The Court granted Defendants’
motion on September 2, 2022, but afforded Plaintiffs the opportunity to file a motion
for leave to amend. (Dkt. 71).
On October 3, 2022, Plaintiffs filed a motion for leave to amend. (Dkt. 72). The
Court denied Plaintiffs’ motion on February 1, 2024, and ordered that the Clerk of
Court close the case. (Dkt. 83). Plaintiffs appealed the dismissal of the action. (Dkt.

85). The Second Circuit subsequently vacated the judgment and remanded the matter
for this Court to grant Plaintiffs leave to file their second amended complaint and to
re-examine its conclusions as to Plaintiffs’ state-law claims. Mosaic Health, Inc. v.
Sanofi-Aventis U.S., LLC, 156 F.4th 68, 85 (2d Cir. 2025). The Second Circuit’s
mandate issued on December 15, 2025. (Dkt. 87).
The second amended complaint was filed on December 17, 2025 (Dkt. 93),and

sets forth the following claims: (1) violations of § 1 of the Sherman Act, 15 U.S.C. § 1;
(2) “unreasonable restraint of trade” in violation of the laws of Arizona, California,
Connecticut, the District of Columbia, Illinois, Florida, Iowa, Kansas, Maine,
Maryland, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire,
New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South
Dakota, Tennessee, Utah, West Virginia, and Wisconsin (the “Second Claim”); and
(3) unjust enrichment under the laws of Arizona, Hawaii, Illinois, Iowa, Maine,
Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New York,
Oregon, Rhode Island, South Dakota, Utah, Vermont, Virginia, West Virginia, and

Wisconsin (the “Third Claim”). (Dkt. 93 at ¶¶ 370-480).
On remand, the Court ordered additional briefing to assist in its re-
examination of Plaintiffs’ state-law claims. (See Dkt. 88; Dkt. 105). Consistent with
the Court’s orders, Defendants jointly filed the instant motion to dismiss on February
17, 2026. (Dkt. 113). Plaintiffs filed a response on March 19, 2026. (Dkt. 127).
On April 8, 2026, pursuant to 28 U.S.C. § 636(c), the parties filed a stipulation
consenting to the undersigned’s jurisdiction to conduct any and all proceedings and

enter a final order with respect to the pending motion to dismiss. (Dkt. 132). That
same day, Chief United States District Judge Elizabeth A. Wolford entered an order
referring the motion to dismiss to the undersigned, consistent with the parties’
stipulation. (Dkt. 133).1
Defendants filed a reply in further support of their motion to dismiss on April
9, 2026, rendering the matter fully briefed. (Dkt. 134).

DISCUSSION
I. Legal Standard
“In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), ‘a district
court may consider the facts alleged in the complaint, documents attached to the

1 This matter has also been referred to the undersigned for all non-dispositive
pretrial matters. (Dkt. 107).
complaint as exhibits, and documents incorporated by reference in the complaint.’”
Revitalizing Auto Communities Env’t Response Tr. v. Nat’l Grid USA, 92 F.4th 415,
436 (2d Cir. 2024) (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d

Cir. 2010)). The Court must proceed by “accepting all factual allegations as true and
drawing all reasonable inferences in the plaintiff’s favor.” CBF Indústria de Gusa
S/A v. AMCI Holdings, Inc., 850 F.3d 58, 77 (2d Cir. 2017).2
The Supreme Court has explained that an adequately pleaded complaint must
contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitle[ment] to relief requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
U.S. at 555 (internal quotations and citations omitted).

2 Plaintiffs have made the procedural argument that Rule 12(g)(2) precludes
Defendants from raising any arguments that they did not raise in their original Rule
12(b)(6) motion. (See Dkt. 127 at 19-20); see Fed. R. Civ. P. 12(g)(2) (“Except as
provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not
make another motion under this rule raising a defense or objection that was available
to the party but omitted from its earlier motion.”). But Defendants’ original motion
to dismiss was not addressed to the Second Amended Complaint, which had not been
filed at the time. (See Dkt. 47; Dkt. 72; Dkt. 93); see also Fasano v. Li, 47 F.4th 91,
105 (2d Cir. 2022) (explaining that a motion to dismiss an amended complaint is not
“available” before the amended complaint is filed). This argument therefore fails.
II. Viability of Plaintiffs’ State-Law Claims under Astra
In Astra USA Inc. v. Santa Clara County, 563 U.S. 110 (2011), the Supreme
Court considered a challenge brought by the “operator of several 340B entities”

against nine pharmaceutical companies, “alleging that the companies were
overcharging 340B health-care facilities in violation of the [Pharmaceutical Pricing
Agreements (‘PPAs’)3] to which the companies subscribed.” Id. at 116. The Supreme
Court found that the plaintiff could not maintain its claims, explaining that
“Congress vested authority to oversee compliance with the 340B Program in HHS
and assigned no auxiliary enforcement role to covered entities.” Id. at 117. It further
noted that “suits by 340B entities would undermine the agency’s efforts to administer

both Medicaid and § 340B harmoniously and on a uniform, nationwide basis.” Id. at
120. Instead, “the proper remedy for covered entities complaining of overcharges and
other violations of the discounted pricing requirements” is to participate in an
administrative “adjudicative framework” within HHS. Id. at 121-22.
In seeking dismissal of Plaintiffs’ federal antitrust claims, Defendants argued
that Plaintiffs’ suit was “an impermissible attempt to enforce 340B (by dressing it up

in antitrust and unjust enrichment clothing)” and thus ran afoul of Astra. (Dkt. 47-1
at 46-47). The Court did not reach this argument in granting Defendants’ motion to
dismiss or denying Plaintiffs’ motion for leave to amend, because it resolved those

3 “PPAs are . . . uniform agreements that recite the responsibilities § 340B
imposes, respectively, on drug manufacturers and the Secretary of HHS.
Manufacturers’ eligibility to participate in State Medicaid programs is conditioned on
their entry into PPAs for covered drugs purchased by 340B entities.” Astra, 563 U.S.
at 113.
motions on other grounds. However, on appeal, the Second Circuit considered the
question of whether Astra bars covered entities from bringing claims under the
Sherman Act and concluded that it does not. See Mosaic Health, 156 F.4th at 78.

In so concluding, the Second Circuit held that this “case does not turn on the
meaning of the Section 340B statute nor on a determination . . . as to whether
Defendants violated Section 340B. Plaintiffs . . . would seek to enjoin the Defendants’
alleged price-fixing independent of the district court finding that Defendants violated
Section 340B.” Id. The Second Circuit further explained that “[u]nlike the overcharge
claims at issue in Astra, Congress did not intend for . . . HHS[] to adjudicate and
enforce antitrust price-fixing claims.” Id. at 79 (further holding that “[a]t bottom,

Astra makes plain that Congress vested authority in HHS to oversee compliance with
the Section 340B Drug Discount Program and enforce the ceiling price contracts, not
to police antitrust violations”).
In the present motion to dismiss, Defendants make a narrowed argument
based on Astra, contending that the Second Circuit permitted Plaintiffs’ federal
antitrust claim to proceed specifically because it does not seek overcharge damages,

but that the same is not true of Plaintiffs’ state-law claims. (Dkt. 113-1 at 13-17). “It
therefore follows,” Defendants argue, “that any of Plaintiffs’ claims that do seek
overcharges . . . are like those at issue in Astra and therefore must be dismissed.” (Id.
at 15 (emphasis omitted); see also Dkt. 134 at 7 (“Astra forecloses Plaintiffs’ claims
because determining whether ‘overcharges’ occurred here depends on whether
Plaintiffs were entitled to the 340B price.”)). Specifically, Defendants ask the Court
to dismiss “Plaintiffs’ Second Claim to the extent it seeks overcharge damages, and
Plaintiffs’ Third Claim (which only seeks overcharge damages) in its entirety,”
pursuant to Astra. (Dkt. 113-1 at 17 (emphasis omitted)).

Perhaps unsurprisingly, Plaintiffs read the Second Circuit’s decision on appeal
very differently. They contend that the Second Circuit held that Plaintiffs’ “second
amended complaint is ‘agnostic as to the question’ of whether Defendants violated
Section 340B.” (Dkt. 127 at 16 (alteration omitted and quoting Mosaic Health, 156
F.4th at 78)). Plaintiffs argue that this conclusion was not limited to their federal
claims and that any finding by this Court that their state-law claims are barred by
Astra would accordingly violate the mandate rule. (Id. at 16-19). Plaintiffs also argue

that, in any event, their state-law claims do not require any adjudication of Section
340B and thus do not implicate Astra. (See id. at 14 (“The only overcharges that
implicate Astra are overcharges requiring the construction of Section 340B. And the
overcharges here do not. So, while Defendants are correct that the state law claims
include overcharge damages, they are wrong that assessing overcharges here triggers
Astra.”) (internal citation omitted)).

The mandate rule is “a branch of the law-of-the-case doctrine that rigidly binds
the district court, barring it from considering issues explicitly or implicitly decided on
appeal.” United States v. Aquart, 92 F.4th 77, 87 (2d Cir. 2024) (citations and
quotations omitted), cert. denied, 145 S. Ct. 1071 (2025). The mandate rule requires
the Court to consider “both the specific dictates of the remand order as well as the
broader spirit of the mandate.” Parmalat Capital Fin. Ltd. v. Bank of Am. Corp., 671
F.3d 261, 270 (2d Cir. 2012) (quotation omitted). The Court has a “duty to give the
mandate full effect.” In re Coudert Bros. LLP, 809 F.3d 94, 98 (2d Cir. 2015) (quotation
omitted). However, a district court does “not violate the mandate rule by addressing

on remand an issue that was not decided by [the appellate court] in the original
appeal.” Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 762 F.3d 165, 175 (2d Cir.
2014); see also New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 352
F.3d 599, 606 (2d Cir. 2003) (“[A] mandate is controlling only as to matters within its
compass. . . . Put simply, the law of the case does not extend to issues an appellate
court did not address.” (internal quotation marks and citations omitted)).
The Court has carefully reviewed what the Second Circuit did and did not

determine with respect to Astra and how those rulings impact the viability of
Plaintiffs’ state-law claims. Initially, the Court agrees with Defendants that the
Second Circuit did not expressly consider whether Astra bars Plaintiffs’ state-law
claims seeking overcharge damages. Indeed, the relevant portion of the Second
Circuit’s decision is entitled “Astra Does Not Bar Sherman Act Claims.” Mosaic
Health, 156 F.4th at 78. But that does not end the inquiry. The Court still must look

to the “broader spirit” of the Second Circuit’s determination and ascertain whether
the Second Circuit impliedly reached any conclusions with respect to the arguments
advanced by Defendants.
The Second Circuit’s mandate encompasses generally applicable holdings
regarding Astra’s scope. In considering whether Astra barred Plaintiffs from bring a
claim under the Sherman Act, the Second Circuit discussed Astra’s background and
reasoning, explaining that “[a]t bottom, Astra makes plain that Congress vested
authority in HHS to oversee compliance with the Section 340B Drug Discount
Program and enforce the ceiling price contracts, not to police antitrust violations.” Id.

at 79. The Second Circuit further observed that Plaintiffs do not, in this case, “seek
to enforce the Section 340B Drug Discount mandates nor the Pharmaceutical Pricing
Agreements to compel the drug manufacturers to offer the discounted drugs at a
specific Section 340B ceiling price” and that “[t]he instant case does not turn on the
meaning of the Section 340B statute nor on a determination from this Court as to
whether Defendants violated Section 340B.” Id. at 78.
These holdings by the Second Circuit foreclose any finding that Astra bars

Plaintiffs’ state-law claims, which are based on the same theory as Plaintiffs’ federal
antitrust claim—namely, that Defendants unlawfully conspired to raise prices on
their lucrative diabetes medications. The Second Circuit concluded that it was not
necessary to construe Section 340B to assess the validity of such a claim and that
such a claim—unlike the claims at issue in Astra—is not, in essence, an attempt to
enforce the statute. This Court is duty-bound to accept and apply that conclusion.

Defendants’ arguments to the contrary are not persuasive. Defendants focus
heavily on footnote 5 of the Second Circuit’s decision (“Footnote 5”), which states: “In
the second amended complaint, Plaintiffs specifically limit their request for damages
for the federal antitrust claim to the lost profits described herein and injunctive relief.
Plaintiffs do, however, seek damages related to overcharges in connection with the
subset of their state-law claims that are not governed by the limitations in Illinois
Brick.” Id. at 80 n.5. (internal citation omitted). What Defendants fail to adequately
consider, however, is that Footnote 5 does not appear in the section of the Second
Circuit’s decision related to Astra. It instead is part of the Second Circuit’s analysis

of whether Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), precludes Plaintiffs’
federal antitrust claim.
“In Illinois Brick, the Supreme Court held that indirect purchasers alleging
overcharge claims do not have standing to sue for antitrust violations under the
Clayton Act.” Mosaic Health, 156 F.4th at 80 (citing Illinois Brick, 431 U.S. at 746).
This holding was based on “concern for duplicative recoveries and the complexities of
tracing overcharges through multiple levels of distribution.” Id. The Second Circuit

noted that in this case, “Plaintiffs have expressly disclaimed damages for overcharges
in relation to their claims that are governed by Illinois Brick.” Id. Footnote 5 is
appended to this sentence, and clarifies that Plaintiffs do seek overcharge damages
with respect to portions of their state-law claims.4 The Court accordingly disagrees
with Defendants that Footnote 5 was meant to draw a “sharp distinction . . . between
the Sherman Act claims and the state-law claims” with respect to the impact of Astra.

(See Dkt. 134 at 6). Footnote 5 must be read in the context it appears—that is, as a
clarification related to the Illinois Brick analysis.

4 “Many states have not expressly adopted or rejected Illinois Brick, but they
have antitrust laws that are harmonized with federal law or overwhelmingly look to
federal law for guidance. Therefore, any state that has not expressly passed Illinois
Brick repealer legislation or interpreted its law in such a way as to override the rule
of Illinois Brick is presumed to have decided to follow federal law, including the
Illinois Brick limitation on indirect purchaser claims.” In re Digital Music Antitrust
Litig., 812 F. Supp. 2d 390, 413 (S.D.N.Y. 2011) (quotation and citation omitted).
The Court further is not persuaded that the use of the word “overcharges” in
connection with Plaintiffs’ state-law claims is dispositive. The Second Circuit’s
decision on appeal does not hold that every claim that could described as seeking an

“overcharge” is categorically barred by Astra. Instead, the Second Circuit was clear
that the claims that covered entities may not pursue are those akin to “the overcharge
claims at issue in Astra.” Mosaic Health, 156 F.4th at 79 (emphasis added). The
overcharge claims at issue in Astra specifically relied on a factual finding that the
defendant pharmaceutical companies have violated the Section 340B mandates and
had charged prices in excess of those permitted by law and the PPAs. See Astra, 563
U.S. at 116 (explaining that the covered entities “commenced suit against Astra and

eight other pharmaceutical companies, alleging that the companies were
overcharging 340B health-care facilities in violation of the PPAs to which the
companies subscribed”). As explained above, the Second Circuit concluded in its
analysis of Plaintiffs’ federal antitrust claim that this case does not call for a factual
determination of whether Defendants violated Section 340B. Mosaic Health, 156
F.4th at 78. This Court is not free to now conclude to the contrary.

In their reply, Defendants argue that Astra does not “apply exclusively in cases
about violations of the discounted pricing requirements of Section 340B.” (Dkt. 134
at 8 (quotation omitted)). But that is the logical implication of what the Second Circuit
concluded on appeal in this matter. Defendants’ arguments to the contrary prove too
much. Defendants contend that Plaintiffs’ state-law claims would “undermine HHS’s
efforts to administer both Medicaid and § 340B harmoniously and on a uniform,
nationwide basis” and “alter the bargain Congress struck with manufacturers as part
of the 340B Program.” (Id. (quotation and alteration omitted)). Whatever force those
arguments may have, they apply equally to Plaintiffs’ federal antitrust claim and

were nonetheless rejected by the Second Circuit. This Court’s duty to give the Second
Circuit’s mandate full effect and to apply its broader spirit dictates the Court’s
resolution of these arguments.
The Second Circuit indicated that Astra bars a covered entity’s claim where
the claim “turn[s] on the meaning of the Section 340B statute []or on a determination
. . . as to whether Defendants violated Section 340B.” Mosaic Health, 156 F.4th at
78. The “overcharge” damages that Plaintiffs seek in connection with their state-law

claims do not fall within this class of claims, because—as the Second Circuit
determined—it is not necessary to find that Plaintiffs were entitled to the Section
340B price to use that price as the starting point for the status quo. Accordingly, the
Court will not dismiss Plaintiffs’ state-law claims as precluded by Astra. The Court
therefore turns to Defendants’ further arguments in support of dismissal.
III. Plaintiffs’ State-Law Antitrust Claims

Defendants argue that Plaintiffs’ state-law antitrust claims fail because
Plaintiffs have not “allege[d] a plausible violation of any applicable state law.” (Dkt.
113-1 at 17). Defendants contend that Plaintiffs have failed to address the “unique
requirements of each state’s statute,” and have instead “resort[ed] to generic, one-
size-fits-all allegations that offer nothing more than boilerplate assertions that the
supposed conspiracy affected commerce within each of the States.” (Id. (quotation
omitted)).
More particularly, Defendants argue that: (1) Plaintiffs have not stated a claim

under New York’s Donnelly Act, N.Y. Gen. Bus. Law §§ 340, et seq., because they have
failed to sufficiently allege intrastate affects; (2) because they have not stated a claim
under the Donnelly Act, Plaintiffs lack standing to pursue antitrust claims under the
laws of any other state; (3) Plaintiffs have failed to allege sufficient intrastate conduct
or effects under the laws of Arizona, California, Connecticut, the District of Columbia,
Illinois, Kansas, Maine, Maryland, Michigan, Minnesota, Mississippi, Nebraska,
Nevada, New Mexico, North Carolina, North Dakota, Oregon, South Dakota,

Tennessee, West Virginia, and Wisconsin; and (4) Plaintiffs cannot state a claim
under Utah’s antitrust statute because there is no named plaintiff from Utah. (Id. at
18-25). For the reasons that follow, the Court concludes that Plaintiffs have failed to
state antitrust claims under the laws of Mississippi and Utah, but that their state-
law antitrust claims are otherwise adequately pleaded.
The Court turns first to the requirements of New York’s Donnelly Act. “Under

the Donnelly Act, any contract, agreement, or arrangement that forms a monopoly or
restrains competition in trade is illegal.” Own Your Hunger LLC v. Linus Tech., Inc.,
No. 25-cv-4544, 2025 WL 1693466, at *3 (S.D.N.Y. June 17, 2025); see N.Y. Gen. Bus.
Law § 340(1). To state a Donnelly Act claim, “a plaintiff must (1) identify the relevant
product market, (2) describe the nature and effects of the purported conspiracy, (3)
allege how the economic impact of that conspiracy is to restrain trade in the market
in question, and (4) show a conspiracy or reciprocal relationship between two or more
entities.” Barbato v. Interstate Fire & Cas. Co., No. 25-CV-5312 (JGK), 2026 WL
1362183, at *4 (S.D.N.Y. May 15, 2026) (quotation omitted).

The Donnelly Act does not apply “[w]here the conduct complained of principally
affects interstate commerce, with little or no impact on local or intrastate
commerce[.]” H-Quotient, Inc. v. Knight Trading Grp., Inc., No. 03 CIV. 5889 (DAB),
2005 WL 323750, at *4 (S.D.N.Y. Feb. 9, 2005) (quoting Two Queens, Inc. v. Scoza,
296 A.D.2d 302, 304 (1st Dep’t 2002)); see also In re Digital Music Antitrust Litig.,
812 F. Supp. 2d 390, 416 (S.D.N.Y. 2011) (“New York requires an impact on intrastate
commerce so as to avoid a dormant Commerce Clause issue.”). But at the pleading

stage, the Donnelly Act’s requirements may be satisfied “where a New York-based
Plaintiff has alleged harm to itself specifically.” Sandee’s Catering v. Agri Stats, Inc.,
No. 20 C 2295, 2020 WL 6273477, at *7 (N.D. Ill. Oct. 26, 2020).
Defendants contend that the Second Amended Complaint “alleges no New York
conduct by Defendants, and its only allegation of New York impact is the same
generic assertion made for every state: that covered entities ‘reside within each of the

above-listed States’ and therefore ‘paid inflated prices there.’” (Dkt. 134 at 10
(alteration omitted and quoting Dkt. 93 at ¶¶ 386-87)). But this understates the
relevant allegations in the Second Amended Complaint. The Second Amended
Complaint states that Mosaic Health has its principal place of business in New York
and has operated 24 safety-net clinics. (Dkt. 93 at ¶ 11). It further alleges that as of
September 30, 2022, more than 2,900 contract pharmacies in New York State had
registered contract pharmacy arrangements with covered entities. (Id. at ¶ 62). The
Second Amended Complaint also alleges that Defendants “transact and do business
within the State of New York, contract to supply goods and services within the State

of New York, regularly solicit business and derive substantial revenue from drugs
sold in the State of New York[.]” (Id. at ¶ 19).
These allegations are similar to allegations that courts have found sufficient
to establish intrastate effects for purposes of the Donnelly Act. See, e.g., In re Crop
Prot. Prods. Loyalty Program Antitrust Litig., 779 F. Supp. 3d 624, 649-50 (M.D.N.C.
2025) (finding Donnelly Act claim adequately pleaded where plaintiffs alleged that
“(1) Plaintiffs or class members purchased [products] in New York, (2) Defendants

established or maintained a monopoly in New York for [those products] and (3)
Plaintiffs or class members were injured in New York”); In re Auto. Parts Antitrust
Litig., 50 F. Supp. 3d 869, 890 (E.D. Mich. 2014) (“The allegations advanced by IPPs
differ from those found lacking and insufficient under New York law because IPPs
have alleged that they paid artificially high prices in New York.”); In re Digital Music,
812 F. Supp. 2d at 217 (finding complaint alleged a “significant impact on intrastate

commerce in New York” where “the end purchasers presumably purchased Internet
Music from New York and consumed the product in New York” and many of the
defendants were headquartered in New York and “clearly conduct[ed] significant
business in New York.” (internal quotation marks omitted)); In re Packaged Ice
Antitrust Litig., 779 F. Supp. 2d 642, 664 (E.D. Mich. 2011) (“The ACAC sets forth
facts sufficient at the pleading stage, identifying the state of New York as well as the
effect on competition in each of the named Plaintiffs’ states, to allege the requisite
intrastate effects under the Donnelly Act.”). The Court finds that the Second
Amended Complaint adequately alleges intrastate effects in New York as required to

state a Donnelly Act claim.
Having reached this conclusion, Defendants’ standing argument as to the other
state-law antitrust claims also fails. Defendants recognize that their standing
argument depends on dismissal of Plaintiffs’ Donnelly Act claim. (See Dkt. 113-1 at
20; Dkt. 134 at 10-11); see Langan v. Johnson & Johnson Consumer Companies, Inc.,
897 F.3d 88, 93 (2d Cir. 2018) (“[A]s long as the named plaintiffs have standing to sue
the named defendants, any concern about whether it is proper for a class to include

out-of-state, nonparty class members with claims subject to different state laws is a
question of predominance under Rule 23(b)(3), . . . not a question of adjudicatory
competence under Article III.” (internal quotation marks omitted)).
The Court accordingly moves to Defendants’ argument that Plaintiffs have
failed to allege sufficient intrastate conduct or effects under the laws of Arizona,
California, Connecticut, the District of Columbia, Illinois, Kansas, Maine, Maryland,

Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, North Carolina,
North Dakota, Oregon, South Dakota, Tennessee, West Virginia, and Wisconsin. The
Court is unpersuaded by this argument to the extent that the laws of these states
require allegations of intrastate effects. Courts considering similar arguments have
concluded that plaintiffs “sufficiently ple[a]d intrastate activity where they allege
nationwide antitrust violations, the antitrust impact of which was felt within each
state.” Blue Cross & Blue Shield of Vermont v. Teva Pharm. Indus., Ltd., 712 F. Supp.
3d 499, 548 (D. Vt. 2024) (quotation omitted); see also In re Loestrin 24 FE Antitrust
Litig., 410 F. Supp. 3d 352, 375 (D.R.I. 2019) (“This Court joins the majority of courts

in concluding that the EPPs have sufficiently pled intrastate activity where they
allege nationwide antitrust violations, the antitrust impact of which was felt within
each state.”); In re Digital Music, 812 F. Supp. 2d at 408 (“[T]he Court must construe
the pleadings in a light favorable to Plaintiffs and thus considers allegations of
nationwide sales and distribution on essentially the same terms in both intrastate
and interstate commerce to be sufficient.”).
Plaintiffs allege that the purported conspiracy has impacted “more than 4,000

covered entities” and that “[c]overed entities in the 340B Program with Contract
Pharmacy arrangements in place reside within each of the [relevant] States and were
denied or limited in receiving Contract Pharmacy 340B Drug Discounts from
Defendants.” (Dkt. 93 at ¶¶ 62, 387). This case is accordingly unlike Miami Products
& Chemical Co. v. Olin Corp., 546 F. Supp. 3d 223 (W.D.N.Y. 2021).5 In Miami
Products, the alleged price-fixing conspiracy involved a “commodity chemical” with

only “hundreds of purchasers.” Id. at 244. The court’s decision in Miami Products

5 The other case on which Defendants primarily rely, In re Cast Iron Soil Pipe
And Fittings Antitrust Litig., No. 1:14-MD-2508, 2015 WL 5166014 (E.D. Tenn. June
24, 2015), has been distinguished by other courts. See, e.g. In re Copaxone Antitrust
Litig., No. 2:22-CV-1232 (JXN/JSA), 2025 WL 2771874, at *14 (D.N.J. Aug. 7, 2025);
Jones v. Varsity Brands, LLC, 618 F. Supp. 3d 725, 763 (W.D. Tenn. 2022); In re
Generic Pharms. Pricing Antitrust Litig., 368 F. Supp. 3d 814, 837 n.99 (E.D. Pa.
2019). In any event, this Court is not bound by an unpublished, out-of-Circuit district
court decision.
turned on the fact that it was “not a case involving a high-volume consumer good with
many thousands of purchasers, such that a factfinder could reasonably assume that
sales had been made in every state.” Id. 6 By contrast, the goods at issue here are

widely used diabetes medications, and the Second Amended Complaint expressly
alleges that the members of the putative class were harmed in each of the relevant
states. (Dkt. 93 at ¶ 387). This is sufficient to plausibly allege intrastate effects at the
pleading stage. In re Vascepa Antitrust Litig. Indirect Purchaser Plaintiffs, No.
CV2112061ZNQTJB, 2023 WL 2182046, at *4 (D.N.J. Feb. 23, 2023) (noting that
“[w]hether [the plaintiffs] will ultimately establish facts sufficient to prove each of
their state antitrust claims is a question . . . to be addressed later in this litigation”).

Defendants further argue that the laws of Arizona, Connecticut, Michigan,
Minnesota, Mississippi, Nebraska, and Nevada require not just intrastate effects, but
specifically intrastate conduct by Defendants, and that the Second Amended
Complaint fails to meet this standard. (Dkt. 134 at 12). The Court rejects this
argument, except as to the law of Mississippi.
Turning first to Arizona law, Arizona’s antitrust statute prohibits “[a] contract,

combination or conspiracy between two or more persons in restraint of, or to
monopolize, trade or commerce, any part of which is within this state[.]” Ariz. Rev.
Stat. § 44-1402. Defendants seem to suggest that the language “in this state” means

6 The court in Miami Products in fact denied the defendants’ motion to dismiss
under the antitrust laws of Kansas, Nevada, and Tennessee because the plaintiffs
had “specifically alleged that one or more Defendants made sales of [the chemical
product at issue] therein.” 546 F. Supp. 3d at 243.
that some part of the conspiracy must have occurred in Arizona. (See Dkt. 113-1 at
22; Dkt. 134 at 12). But that is not how courts have interpreted Arizona’s statute.
See, e.g., Jones v. Varsity Brands, LLC, 618 F. Supp. 3d 725, 762 (W.D. Tenn. 2022)

(“The antitrust laws of Arizona, Mississippi, South Dakota, and West Virginia do all
require a measure of intrastate effect within that jurisdiction. Alabama’s antitrust
laws, by contrast, regulate only intrastate conduct.” (emphasis in original)); In re OSB
Antitrust Litig., No. 06-826, 2007 WL 2253425, at *15 (E.D. Pa. Aug. 3, 2007) (stating
that Arizona’s antitrust law “require[s] that at least some part of the alleged injury
have occurred within the state and have affected consumers within the state”
(emphasis added)). Defendants have cited no cases interpreting Arizona’s statute in

the manner they suggest, nor does the Court find such interpretation required by the
statute’s plain language. The phrase “within this state” is naturally read to modify
the immediately preceding phrase “trade or commerce,” and thus to require only that
some portion of the affected trade or commerce have occurred within Arizona.
As to Connecticut, its antitrust statute “applies to every . . . restraint of any
part of trade or commerce . . . when any part thereof was entered into or effectuated

in whole or in part in this state.” Conn. Gen. Stat. § 35-30. The language “or
effectuated in whole or in part” is sufficiently broad to support application where the
effects of an antitrust conspiracy occur in Connecticut. The sole case cited by
Defendants, Fido’s Fences v. Canine Fence Co., 672 F. Supp. 2d 303 (E.D.N.Y. 2009),
is inapposite. There, the court concluded that there was a “lack of any connection”
between the plaintiff’s business and Connecticut. Id. at 313. Here, the putative class
includes covered entities based in Connecticut.
Michigan’s antitrust statute provides that “[t]he establishment, maintenance,

or use of a monopoly, or any attempt to establish a monopoly, of trade or commerce
in a relevant market by any person, for the purpose of excluding or limiting
competition or controlling, fixing, or maintaining prices, is unlawful.” Mich. Comp.
Laws § 445.773. Michigan law defines “relevant market” as “the geographical area of
actual or potential competition in a line of trade or commerce, all or any part of which
is within this state.” Id. at § 445.771(b). Defendants cite no case law interpreting this
statute to require intrastate conduct as opposed to intrastate effects. Courts have

held that allegations that individuals in Michigan “paid a higher price are sufficient
to show that activities related to the alleged monopoly took place within the state.”
Sheet Metal Workers Loc. 441 Health & Welfare Plan v. GlaxoSmithKline, PLC, 737
F. Supp. 2d 380, 396 (E.D. Pa. 2010); see also Teva Pharms. USA, Inc. v. Corcept
Therapeutics, Inc., No. 24-CV-03567-NW, 2026 WL 1224122, at *4 (N.D. Cal. May 5,
2026) (concluding that “allegations of nationwide antitrust violations generally

satisfy the intrastate statutory requirement” under Michigan law).
The Minnesota antitrust statute also does not require intrastate conduct by
the defendant. It prohibits: “(a) any contract, combination, or conspiracy when any
part thereof was created, formed, or entered into in this state; and (b) any contract,
combination, or conspiracy, wherever created, formed, or entered into; any
establishment, maintenance, or use of monopoly power; and any attempt to establish,
maintain, or use monopoly power; whenever any of the foregoing affects the trade or
commerce of this state.” Minn. Stat. § 325D.54. Notably, Defendants quote only
subsection (a) of this statute in their moving papers. (See Dkt. 113-1 at 23). They do

not discuss or even acknowledge subsection (b), which expressly applies to “any
contract, combination, or conspiracy, wherever created, formed, or entered into” that
“affects the trade or commerce of” Minnesota. Defendants’ argument regarding
Minnesota law accordingly lacks merit.
Nebraska’s antitrust statute provides that “[e]very contract, combination in
the form of trust or otherwise, or conspiracy in restraint of trade or commerce, within
this state, is hereby declared to be illegal.” Neb. Rev. Stat. § 59-801. The Supreme

Court of Nebraska has held that this statute applies where the alleged conduct
“affected end users of . . . equipment in Nebraska by denying them the advantage of
parts sold in a freely competitive market.” Heath Consultants, Inc. v. Precision
Instruments, Inc., 247 Neb. 267, 281 (1995). Defendants’ cited authority does not call
into question this interpretation by Nebraska’s highest court. To the contrary, the
case that Defendants cite, Credit Bureau Servs., Inc. v. Experian Info. Sols., Inc., 285

Neb. 526 (2013), addresses a different provision of Nebraska law, Nev. Rev. Stat. § 59-
805. Credit Bureau, 285 Neb. at 530-31 (“[W]e note that § 59-805 is unusual among
state statutes and there is no federal equivalent statute. Compare: § 59-801 equates
to Sherman Act § 1 (restraint of trade), and § 59-802 equates to Sherman Act § 2
(antimonopoly).”).
And as to Nevada, its antitrust statute provides: “Every activity enumerated
in this subsection constitutes a contract, combination or conspiracy in restraint of
trade, and it is unlawful to conduct any part of any such activity in this State[.]” Nev.

Rev. Stat. § 598A.060(1). At least one federal court has expressly rejected the
argument that this statute “requires that the allegedly anticompetitive conduct have
taken place, in part, within Nevada.” Sheet Metal Workers, 737 F. Supp. 2d at 397
(further finding “Nevada requires only that the plaintiffs show that some part of the
prohibited activity caused harm in Nevada”). Defendants have cited no contrary
authority and have offered no argument for why the statute should be read in the
manner they suggest. They have accordingly failed to demonstrate that dismissal of

the Nevada antitrust claim is warranted.
But the Court does find that the Mississippi Antitrust Act (Miss. Code Ann.
§ 75-21-1) requires something more than is alleged in the Second Amended
Complaint. The Supreme Court of Mississippi has held that “a material element” of
a claim under this statute “is that the illegal objective . . . be accomplished in part at
least by transactions lying wholly within the state.” State ex rel. Fitch v. Yazaki N.

Am., Inc., 294 So. 3d 1178, 1189 (Miss. 2020) (quotation omitted); see also In re Visa
Debit Card Antitrust Litig., No. 24-CV-7435 (JGK), 2025 WL 3019893, at *7 (S.D.N.Y.
Oct. 28, 2025) (dismissing claims under Mississippi Antitrust Act because the
complaint contained “no allegations of wholly intrastate transactions” (emphasis
omitted)); In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 383 F.
Supp. 3d 187, 266 (S.D.N.Y. 2019) (“[T]he antitrust law of Mississippi focuses on the
location where the anticompetitive conduct occurred rather than the effects of such
anticompetitive conduct or the broader nexus between the conduct and the state in
question.”). Plaintiffs’ Second Amended Complaint does not specifically allege any

wholly intrastate transactions within Mississippi. Plaintiffs have also failed to
address this requirement of Mississippi law or explain how it is satisfied here.
Accordingly, Plaintiffs’ Second Claim must be dismissed to the extent it alleges a
violation of the Mississippi Antitrust Act.
The Court further agrees with Defendants that Plaintiffs cannot maintain a
claim under the Utah Antitrust Act, Utah Code Ann. §§ 76-16-501, et seq., because
“to state a claim under the [Utah Antitrust Act], there must be a named plaintiff who

is a Utah citizen or resident.” Miami Prods., 546 F. Supp. 2d at 247. The Court is
unpersuaded by Plaintiffs’ argument that “this issue is premature at this initial
stage” because the Court has set August 30, 2027, as the deadline for motions to join
parties or amend the pleadings. (Dkt. 127 at 27; see Dkt. 126 at ¶ 5). As the court
explained in Miami Products, “the plain language of the [Utah Antitrust Act] states
that a Utah citizen or resident must bring the action[.]” 546 F. Supp. 2d at 247

(quotation omitted).7 While there may be practical benefits to delaying this inquiry
to the class certification stage (see Dkt. 127 at 27), practical benefits cannot outweigh
clear statutory language.

7 Utah’s antitrust laws were renumbered effective May 7, 2025. However, the
relevant renumbered statutory provision, Utah Code Ann. § 76-16-511(1)(a)(i),
continues to provide that only “[a] person who is a citizen of this state or a resident
of this state” may “bring” an action for injunctive relief and damages.
For these reasons, the Court grants Defendants’ motion to dismiss Plaintiffs’
Second Claim to the extent it alleges violations of the Mississippi Antitrust Act and
the Utah Antitrust Act. Defendants’ request for dismissal of the Second Claim is

otherwise denied.
IV. Plaintiffs’ State-Law Unjust Enrichment Claims
The Court turns finally to Defendants’ remaining challenges to Plaintiffs’
state-law unjust enrichment claims. Defendants argue that: (1) Plaintiffs have failed
to state an unjust enrichment claim under the laws of either New York or Virginia;
(2) because Plaintiffs do not have a viable unjust enrichment claim under either New
York law or Virginia law, they “lack standing to bring unjust enrichment claims on

behalf of unnamed putative class members in any other state”; and (3) Plaintiffs have
failed to specifically satisfy the requirements of Michigan and Mississippi law
regarding unjust enrichment. (Dkt. 113-1 at 25-27).
Defendants argue that Plaintiffs cannot maintain a Virginia unjust
enrichment claim because “Plaintiffs cannot seek ‘overcharge’ damages as indirect
purchasers under Virginia law.” (Dkt. 113-1 at 25). Defendants’ argument turns on

Virginia’s status as a state that has not repealed Illinois Brick. Plaintiffs
acknowledge that Virginia “has not enacted an Illinois Brick repealer statute,” but
argue that “Illinois Brick does not displace state unjust enrichment claims, which
exist precisely to provide equitable remedies when no adequate remedy exists at law.”
(Dkt. 127 at 28).
Many courts considering this issue have found that “[a]llowing indirect
purchasers to recover and recoup a benefit . . . under an unjust enrichment theory
would circumvent the policy choice of Illinois Brick.” In re Flonase Antitrust Litig.,

692 F. Supp. 2d 524, 542 (E.D. Pa. 2010); see, e.g., Blue Cross & Blue Shield of
Vermont, 712 F. Supp. 3d at 561 (dismissing unjust enrichment claim “insofar as it is
brought under the laws of jurisdictions that apply Illinois Brick”); In re Namenda
Indirect Purchaser Antitrust Litig., No. 1:15-CV-6549CMRWL, 2021 WL 2403727, at
*35 (S.D.N.Y. June 11, 2021) (“As many courts (including this one) have held,
[indirect purchasers] cannot bring unjust-enrichment claims in states that do not
explicitly permit indirect-purchasers to bring suit, as permitting them to do so would

constitute an impermissible end run around the Illinois Brick prohibition on indirect
purchaser actions.” (quotation omitted)); In re Digital Music, 812 F. Supp. 2d at 412
(“it is beyond peradventure that indirect purchasers may not employ unjust
enrichment to skirt the limitation on recovery imposed by Illinois Brick”).
There are some cases to the contrary. See, e.g., In re Generic Pharms. Pricing
Antitrust Litig., 368 F. Supp. 3d 814, 850 (E.D. Pa. 2019); In re G-Fees Antitrust Litig.,

584 F.Supp.2d 26, 46 (D.D.C. 2008). But “the vast majority of courts have held that
indirect purchasers may not bring state claims for unjust enrichment if they
otherwise would be barred from bringing a claim under that state’s antitrust . . .
statute[].” In re Seroquel XR (Extended Release Quetiapine Fumarate) Antitrust
Litig., No. 20-1076-CFC, 2022 WL 2438934, at *23 (D. Del. July 5, 2022) (collecting
cases). The Court agrees with the majority view that “it would be inequitable to
permit relief where the state has clearly made a policy determination that no such
relief should lie.” In re Packaged Seafood Prod. Antitrust Litig., 242 F. Supp. 3d 1033,
1088-89 (S.D. Cal. 2017); see also In re Novartis & Par Antitrust Litig., No. 18 CIV.

11835, 2019 WL 3841711, at *6 (S.D.N.Y. Aug. 15, 2019) (explaining that the contrary
case law is “unpersuasive” because Illinois Brick’s “concern for double recovery and
the apportionment of claims remains” in the unjust enrichment context). The Court
therefore grants Defendants’ motion to dismiss Plaintiffs’ Third Claim to the extent
it is asserted under Virginia law.
With respect to Plaintiffs’ New York unjust enrichment claim, Defendants
argue that this claim fails because it is merely duplicative of Plaintiffs’ other causes

of action. (Dkt. 113-1 at 26). Plaintiffs argue in response that they should be
permitted to be plead this claim in the alternative. (Dkt. 127 at 29). Plaintiffs also
argue that their “unjust enrichment claim is separate and distinct from their New
York state law antitrust claim” and that “the unjust enrichment claim is based on
conduct that also violates New York antitrust laws.” (Id.). They do no further
elaborate on this argument.

“[T]he question of whether an unjust-enrichment claim is duplicative is a state-
law issue,” and requires a “case-by-case examination of whether each state’s antitrust
. . . statute has overriden or limited the scope of restitutionary relief that would
normally be available to a plaintiff at equity.” In re Namenda, 2021 WL 2403727, at
*38) (quotation and alterations omitted). In New York, “an unjust-enrichment claim
‘is an equitable claim that is unavailable where an adequate remedy at law exists.’”
Id. (quoting Fed. Treasury Enter. Sojuzplodoimport v. Spirits Int’l N.V., 400 F. App’x
611, 613 (2d Cir. 2010)). “Courts in the Second Circuit have recognized that ‘an unjust
enrichment claim cannot survive where it simply duplicates, or replaces, a

conventional contract or tort claim.’” Alce v. Wise Foods, Inc., No. 17 CIV. 2402 (NRB),
2018 WL 1737750, at *11 (S.D.N.Y. Mar. 27, 2018) (quoting Reynolds v. Lifewatch,
Inc., 136 F. Supp. 3d 503, 524 (S.D.N.Y. 2015)).
The New York Court of Appeals has explained that “unjust enrichment . . . is
available only in unusual situations when, though the defendant has not breached a
contract nor committed a recognized tort, circumstances create an equitable
obligation running from the defendant to the plaintiff.” Corsello v. Verizon New York,

Inc., 18 N.Y.3d 777, 790 (2012). As such, “a plaintiff may plead unjust enrichment in
the alternative, but where an unjust enrichment claim is duplicative of other causes
of action, it should be dismissed.” Bourbia v. S.C. Johnson & Son, Inc., 375 F. Supp.
3d 454, 466 (S.D.N.Y. 2019); see also Bermudez v. Colgate-Palmolive Co., 667 F. Supp.
3d 24, 45 (S.D.N.Y. 2023) (“Plaintiffs are correct that unjust enrichment may be
pleaded in the alternative; however, it is equally true that, even pleaded in the

alternative, claims for unjust enrichment will not survive a motion to dismiss where
plaintiffs fail to explain how their unjust enrichment claim is not merely duplicative
of their other causes of action.” (quotation omitted)).
Plaintiffs’ cursory arguments to the contrary notwithstanding, their New York
unjust enrichment claim is entirely duplicative of their New York antitrust claim. It
is predicated on the same conduct and seeks overcharge damages that are also sought
in connection with the New York antitrust claim. (See Dkt. 93 at ¶¶ 389-90). Plaintiffs
have offered no meaningful explanation for how their New York unjust enrichment
claim is not duplicative of their New York antitrust claim. For example, they have

not articulated a theory by which they would be entitled to recover their claimed
“overcharge” damages separate from the alleged price-fixing conspiracy.
Plaintiffs’ New York unjust enrichment claim “will rise and fall with its
statutory claims. To the extent that those claims succeed, [the unjust enrichment
claim is] duplicative, and to the extent they are deficient, [the] unjust enrichment
claim[] will not remediate them.” In re Novartis & Par., 2019 WL 3841711, at *7; see
also In re Namenda, 2021 WL 2403727, at *38; Shak v. JPMorgan Chase & Co., 156

F. Supp. 3d 462, 480 n.12 (S.D.N.Y. 2016) (“Where, as here, the unjust enrichment
claim amounts to little more than a recasting of the . . . antitrust claims, plaintiffs
fail to state a claim of unjust enrichment.” (quotation omitted)). Dismissal of this
claim is accordingly warranted.
Defendants next argue that because Plaintiffs cannot successfully “bring
unjust enrichment claims under the laws of their respective states (New York and

Virginia), they may not bring unjust enrichment claims under the laws of other states
on behalf of a putative class.” (Dkt. 113-1 at 27). Plaintiffs have not responded to this
argument other than to argue that the Second Amended Complaint “sufficiently
alleges unjust enrichment claims in New York and Virginia—indeed, either would
suffice[.]” (Dkt. 127 at 30).
Plaintiffs have not contested that their ability to maintain the Third Claim is
contingent upon their having stated a valid unjust enrichment claim under the law
of either New York or Virginia. They have accordingly conceded the issue. See BYD

Co. Ltd. v. VICE Media LLC, 531 F. Supp. 3d 810, 821 (S.D.N.Y. 2021) (“Plaintiffs’
failure to oppose Defendants’ specific argument in a motion to dismiss is deemed
waiver of that issue.”) (quoting Kao v. Brit. Airways, PLC, No. 17-CV-0232 (LGS),
2018 WL 501609, at *5 (S.D.N.Y. Jan. 19, 2018)), aff’d, No. 21-1097, 2022 WL 598973
(2d Cir. Mar. 1, 2022); see also Napoli v. Nat’l Sur. Corp., No. 21CV9279JSRRWL,
2022 WL 1943776, at *6 (S.D.N.Y. May 19, 2022) (“Plaintiffs did not address that
argument in their opposition, and, on that basis alone, may be deemed to have

conceded the point.”), adopted, 2022 WL 2110606 (S.D.N.Y. June 10, 2022), aff’d, No.
22-1516, 2023 WL 2320332 (2d Cir. Mar. 2, 2023); Canas v. Whitaker, No. 6:19-CV-
06031, 2019 WL 2287789, at *6 (W.D.N.Y. May 29, 2019) (“It is well settled in this
Circuit that a plaintiff effectively concedes a defendant’s arguments by his failure to
respond to them”) (quotation and alteration omitted). As such, having concluded that
Plaintiffs’ Virginia and New York unjust enrichment claims are subject to dismissal,

the Court grants Defendants’ motion to dismiss with respect to Plaintiffs’ Third Claim
in its entirety.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss Plaintiffs’ state-law
claims (Dkt. 113) is granted in part and denied in part. Specifically, Defendants’
motion is granted with respect to Plaintiffs’ Third Claim in its entirety and with
respect to Plaintiffs’ Second Claim to the extent it alleges a violation of the
Mississippi Antitrust Act and the Utah Antitrust Act. Defendants’ motion is
otherwise denied with respect to Plaintiffs’ Second Claim.
SO ORDERED.

COELEEN D. HOLLAND
United States Magistrate Judge

Dated: June 26, 2026
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11348909. Public record. Not legal advice.