STATE OF LOUISIANA, BY AND THROUGH ITS ATTORNEY GENERAL JAMES CALDWELL
FOURNIER INDUSTRIE ET SANTE AND LABORATORIES FOURNIER, S.A., ABBOTT LABORATORIES, ABBVIE, INC.
Appealed from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Case No.
C637571 The Honorable Donald R. Johnson, Judge Presiding
L. Guerry J. Wendell Clark Baton Rouge, Louisiana William F.
Cavanaugh, Jr. George A. LoBiondo New York, New York Counsel
for Defendants/Appellants Abbott Laboratories and AbbVie,
Landry Attorney General Keetsie T. Gunnels Nicholas J. Diez
Stacie Deblieux Baton Rouge, Louisiana, Alejandro Perkins
Baton Rouge, Louisiana Robert L. Salim Barrett Beasley
Natchitoches, Louisiana John Alden Meade Adam G. Young New
Orleans, Louisiana James P. Ryan Opelousas, Louisiana Jerald
P. Block Thibodaux, Louisiana Counsel for Plaintiff/Appellee
State of Louisiana
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
Laboratories and AbbVie Inc. appeal the judgment of the
Nineteenth Judicial District Court overruling their
peremptory exceptions of no right of action and no cause of
action. Abbott Laboratories and AbbVie Inc. have also filed a
supervisory writ application seeking review of the same
judgment. For the following reasons, we deny the
supervisory writ application, reverse the trial court's
judgment, and render judgment dismissing the State's
petition for failure to state a cause of action.
AND PROCEDURAL HISTORY
March 4, 2015, the State of Louisiana, by and through its
Attorney General James D. "Buddy"
Caldwell ("the State"), filed suit
against Fournier Industrie Et Sante and Laboratories
Fournier, S.A., Abbott Laboratories, and AbbVie Inc.
(collectively "Defendants"), all of whom allegedly
marketed and sold the pharmaceutical product Tricor in and to
the state of Louisiana. In its petition, the State alleged that
Defendants had employed an unlawful scheme to prevent or
delay a less expensive generic version of Tricor from
entering the market. According to the State, this scheme
included conduct such as filing fraudulent patent
applications with the United States Patent and Trademark
Office, unlawfully listing unenforceable patents in the
FDA's Orange Book, "product hopping," and
filing sham litigation against would-be competitors. The
State claimed that, through this scheme, Defendants illegally
maintained monopoly power in the market for fenofibrate in
the United States for at least a decade, maintained the price
of Tricor at supra-competitive levels, and overcharged the
State millions of dollars by depriving it of the benefits of
unrestricted competition and access to less expensive generic
versions of fenofibrate. With regard to the overpayments, the
State claimed that Defendants' alleged unlawful conduct
caused the State, through the Louisiana Medicaid Program
("Medicaid"), to pay more for fenofibrate products
than they otherwise would have paid. As a result, the State
brought claims under the Louisiana Monopolies Act, La. R.S.
51:121, et seq, and Louisiana's Unfair Trade
Practices Act ("LUTPA"), La. R.S. 51:1401, et
seq. Alternatively, the State asserted that it had a
claim for unjust enrichment. The State sought restitution,
reimbursement for the overpayments, damages as permitted by
law, reasonable attorney fees, and costs.
8, 2015, AbbVie, Inc. and Abbott Laboratories (collectively
"AbbVie") filed exceptions raising objections of
prescription and peremption, no right of action, and no cause
of action. On August 11, 2015, the trial court sustained
AbbVie's objections of prescription and peremption and
dismissed the State's claims for relief. In doing so, the
trial court did not take up AbbVie's exceptions of no
right of action or no cause of action, but held both
exceptions in abeyance pending further proceedings.
state subsequently appealed the trial court's judgment on
AbbVie's exceptions. On December 22, 2016, this court
found that the trial court erred in sustaining AbbVie's
exception of prescription and peremption. State by and
Through Caldwell v. Fournier Industrie et Sante and
Laboratories Fournier, S.A., 2015-1353 (La.App. 1 Cir.
12/22/16); 208 So.3d 1081, 1085-86. Specifically, this court
found that the trial court should have first considered
whether the State was the proper party to bring its claims
against Abb Vie. Id. Thus, this court vacated the
trial court's judgment and remanded the case to the trial
court for further proceedings. Id. at 1086.
this court's ruling, the trial court considered
AbbVie's objections of no right of action and no cause of
action. In a supplemental brief, AbbVie argued that the only
party vested with a right of action to recover for damages to
Medicaid was the Louisiana Department of Health
("LDH"), meaning the Attorney General acting on
behalf of the State did not have a right to recover Medicaid
damages through litigation. AbbVie also contended that the
LUTPA claim was not viable because the State had not sought
injunctive relief. As to whether the State had a cause of
action, AbbVie argued that the State only asserted
"indirect purchaser" claims and that Louisiana
antitrust law did not provide a cause of action for indirect
purchasers, nor did Louisiana antitrust law provide a cause
of action for alleged antitrust violations that occurred
entirely outside of Louisiana. Finally, AbbVie argued that
the State had no right or cause of action to bring an unjust
enrichment claim, in part because the State's damages
were addressed by existing laws.
17, 2017, the trial court held a hearing on these objections.
On July 31, 2017, the trial court overruled AbbVie's
objections of no right of action and no cause of action.
AbbVie subsequently filed this appeal and a writ application,
raising the same arguments as the appeal.
assign the following as error:
(1) The trial court erred when it overruled
Defendants-Appellants' exception of no right of action as
to all of the Petition's claims, because the real party
in interest to assert the claims in the Petition is not the
State of Louisiana, but rather the Louisiana Department of
(2) The trial court erred when it denied
Defendants-Appellants' exception of no cause of action as
to the Petition's Monopolies Act claim, because the
Monopolies Act does not reach the conduct alleged in the
(3) The trial court erred when it denied
Defendants-Appellants' exceptions of no right or cause of
action as to the Petition's unjust enrichment claim,
because the Louisiana Department of Health is the only party
in interest with the right of action to recover damages to
Louisiana Medicaid on an unjust enrichment theory, and
because an action for unjust enrichment cannot lie where
express laws exist that address the complained-of conduct.
(4) The trial court erred when it overruled
Defendants-Appellants' exception of no cause of action as
to all of the Petition's claims, because Louisiana law
does not provide a cause of action for indirect purchasers of
standard of review of a ruling on an exception of no right of
action, which presents a question of law, is de novo.
LeCompte v. Continental Casualty Co., 2016-1359 (La.App.
1 Cir. 7/12/17); 224 So.3d 1005, 1009, writ denied,
2017-1525 (La.App. 1 Cir. 12/15/17); 231 So.3d 635. Further,
appellate review of a peremptory exception of no cause of
action is de novo because an exception of no cause
of action presents a question of law and the trial
court's decision is based only on the sufficiency of the
petition. CamSoft Data Systems, Inc. v. Southern
Electronics Supply, Inc., 2015-1260 (La.App. 1 Cir.
9/23/15); 182 ...