Sheet Metal Workers Local No. 20 Welfare and Benefit Fund et al v. CVS Health Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
SHEET METAL WORKERS LOCAL NO. 20 	)
WELFARE AND BENEFIT FUND; and 	)
INDIANA CARPENTERS WELFARE FUND, 	)
on behalf of themselves and all 	)
others similarly situated, 	) 	C.A. No. 16-046 S
)
Plaintiffs, 	)
)
v. 	)
)
CVS HEALTH CORPORATION, 	)
)
Defendant. 	)
___________________________________)
OPINION AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before 	the 	Court 	are 	Defendant’s 	Motion 	to 	Dismiss 	(ECF 	No.
13) 	and 	Motion 	to 	Certify 	Question 	to 	the 	Indiana 	Supreme 	Court
(ECF 	No. 	24). 	Plaintiffs 	filed 	Oppositions 	to 	both 	motions 	(ECF
Nos. 	20 	and 	28) 	and 	Defendant 	filed 	Replies 	(ECF 	Nos. 	22 	and
31). 	For 	the 	reasons 	that 	follow, 	Defendant’s 	Motions 	are
DENIED.
I. 	Background1
Plaintiffs 	are 	suing 	CVS 	Health 	Corporation 	(“CVS”), 	on
behalf 	of 	themselves 	and 	a 	nationwide 	putative 	class 	of 	entities
providing 	prescription 	drug 	insurance 	(“Third-Party 	Payors” 	or
1 As 	this 	is 	a 	motion 	to 	dismiss, 	all 	well-pled 	facts
alleged 	by 	Plaintiffs 	are 	taken 	to 	be 	true. 	See 	Rederford 	v.
U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir. 2009).
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“TPPs”), 	alleging 	that 	CVS 	perpetrated 	an 	eight-year 	fraud 	by
reporting 	an 	inflated 	Usual 	and 	Customary 	(“U&C”) 	price 	for
generic 	drugs, 	rather 	than 	the 	significantly 	cheaper 	price
associated with CVS’s Health Savings Pass (“HSP”) program.
In 	2006, 	“big-box” 	retailers 	with 	pharmacy 	departments,
such 	as 	Wal-Mart 	and 	Target, 	began 	offering 	hundreds 	of 	generic
prescription 	drugs 	at 	significantly 	reduced 	prices. 	(Compl.
¶¶ 18-19, 	ECF 	No. 	1.) 	In 	November 	2008, 	CVS 	responded 	by
introducing 	its 	HSP 	program, 	which 	provided 	special 	pricing 	for
approximately 	400 	generic 	prescription 	medications 	to
individuals who paid an annual membership fee. (Id. ¶¶ 20-24.)
CVS 	is 	required 	to 	“report[] 	to 	Third-Party 	Payors 	CVS’s
[U&C] 	price 	for 	the 	drug 	being 	dispensed. 	The 	U&C 	price 	is
generally 	defined 	as 	the 	cash 	price 	to 	the 	general 	public, 	which
is 	the 	amount 	charged 	cash 	customers 	for 	the 	prescription,
exclusive 	of 	sales 	tax 	or 	other 	amounts 	claimed.” 	(Id. 	¶ 	16.)
Plaintiffs 	claim 	that 	because 	“CVS 	offers 	the 	HSP 	price 	as 	the
cash 	price 	to 	the 	general 	public 	and 	the 	HSP 	price 	is 	the 	most
common 	price 	paid 	by 	CVS’s 	cash-paying 	customers[,] 	[t]he 	HSP
price 	is 	CVS’s 	U&C 	price.” 	(Id. 	¶ 	30.) 	However, 	instead 	of
reporting 	the 	HSP 	price, 	“CVS 	has 	reported 	U&C 	prices 	for
generic 	prescription 	drugs 	that 	are 	up 	to 	eleven 	(11) 	times 	the
U&C 	prices 	reported 	by 	some 	of 	its 	most 	significant 	competitors
and 	its 	own 	HSP 	prices.” 	(Id. 	¶ 	38.) 	In 	contrast, 	the 	“big-box”
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retailers 	“report 	the 	discounted 	price 	as 	the 	U&C 	price.” 	(Id.
¶ 37.) 	According 	to 	Plaintiffs, 	CVS’s 	“fraudulent 	scheme” 	has
resulted 	in 	CVS 	“overcharg[ing] 	hundreds 	or 	thousands 	of 	TPPs
(including 	Plaintiffs 	and 	others 	similarly 	situated) 	which 	paid
for 	some 	of 	the 	most 	commonly 	prescribed 	generic 	drugs 	from 	CVS
Pharmacies around the country.” (Id. ¶ 41.)
II. 	Discussion
CVS 	argues 	that: 	(1) 	the 	Complaint 	does 	not 	satisfy 	the
pleading 	requirements 	of 	Rule 	9(b) 	of 	the 	Federal 	Rules 	of 	Civil
Procedure; 	(2) 	Plaintiffs 	have 	failed 	to 	state 	a 	claim 	under
Indiana’s 	Deceptive 	Consumer 	Sales 	Act 	(“IDCSA”), 	or 	in 	the
alternative, 	the 	question 	of 	whether 	TPPs 	are 	“consumers” 	under
the 	IDCSA 	should 	be 	certified 	to 	the 	Indiana 	Supreme 	Court; 	(3)
named 	Plaintiffs, 	who 	are 	Indiana 	TPPs, 	do 	not 	have 	standing 	to
assert 	state 	law 	claims 	on 	behalf 	of 	putative 	class 	members, 	and
Plaintiffs 	have 	not 	properly 	pled 	the 	elements 	of 	the 	state
consumer 	protection 	statutes 	they 	attempt 	to 	invoke; 	and 	(4)
Plaintiffs’ 	negligent 	misrepresentation 	and 	unjust 	enrichment
claims 	fail 	because 	they 	are 	contract 	claims 	masquerading 	as
tort 	claims. 	The 	Court 	will 	discuss 	each 	of 	these 	arguments 	in
turn.
A. 	Rule 9(b) of the Federal Rules of Civil Procedure
Rule 	9(b) 	of 	the 	Federal 	Rules 	of 	Civil 	Procedure 	requires
that 	a 	pleading 	alleging 	fraud 	“must 	state 	with 	particularity
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the 	circumstances 	constituting 	fraud.” 	Fed. 	R. 	Civ. 	P. 	9(b).
The 	Complaint 	“must 	‘(1) 	specify 	the 	statements 	that 	the
plaintiff 	contends 	were 	fraudulent, 	(2) 	identify 	the 	speaker,
(3) 	state 	where 	and 	when 	the 	statements 	were 	made, 	and 	(4)
explain 	why 	the 	statements 	were 	fraudulent.’” 	Suna 	v. 	Bailey
Corp., 	107 	F.3d 	64, 	68 	(1st 	Cir. 	1997) 	(quoting 	Shields 	v.
Citytrust 	Bancorp, 	Inc., 	25 	F.3d 	1124, 	1127-28 	(2d 	Cir. 	1994)).
In 	other 	words, 	Rule 	9(b) 	requires 	plaintiffs 	to 	allege 	the
“‘who, 	what, 	when, 	where, 	and 	how’ 	of 	the 	alleged 	fraud.”
United 	States 	ex 	rel. 	Ge 	v. 	Takeda 	Pharm. 	Co. 	Ltd., 	737 	F.3d
116, 	123 	(1st 	Cir. 	2013) 	(quoting 	United 	States 	ex. 	rel 	Walsh 	v.
Eastman Kodak Co., 98 F. Supp. 2d 141, 147 (D. Mass. 2000)).
Here, 	CVS 	argues 	that 	“the 	Complaint 	does 	not 	allege 	that
CVS 	(or 	anyone) 	ever 	communicated 	an 	alleged 	false 	statement, 	a
U&C 	price, 	to 	the 	Indiana 	Funds,” 	which 	“is 	the 	most 	basic
requirement 	of 	Rule 	9(b).” 	(Def.’s 	Mot. 	to 	Dismiss 	8, 	ECF 	No. 	13
(emphasis in original).) 	Moreover, Plaintiffs supposedly
do 	not 	allege 	their 	plan 	beneficiaries 	actually
purchased 	overpriced 	prescriptions 	from 	CVS
pharmacies; 	or 	when, 	where, 	and 	how 	frequently 	any
such 	(unalleged) 	purchases 	took 	place; 	or 	what 	U&C
prices 	CVS 	supposedly 	reported 	during 	those 	purchases;
or 	what 	amount 	the 	Indiana 	Funds 	purportedly 	overpaid
for 	the 	purchases; 	or 	any 	details 	describing 	when 	or
how CVS obtained such overpayments.
(Id. (emphases in original).)
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Plaintiffs 	cite 	a 	recent 	decision 	in 	Corcoran 	v. 	CVS 	Health
Corporation 	& 	CVS 	Pharmacy 	Inc., 	169 	F. 	Supp. 	3d 	970, 	986 	(N.D.
Cal. 	2016), 	in 	which 	the 	court 	denied 	a 	motion 	to 	dismiss 	in 	a
similar 	case. 	They 	argue 	that, 	like 	the 	plaintiffs 	in 	Corcoran,
they 	have 	satisfied 	the 	“who, 	what, 	where, 	and 	when” 	required 	by
Rule 9(b).
The 	Court 	finds 	that 	Plaintiffs’ 	Complaint 	satisfies 	Rule
9(b). 	It 	is 	clear 	from 	the 	Complaint 	that 	the 	alleged 	false
statement 	to 	the 	Indiana 	Funds 	was 	the 	reported 	U&C 	price, 	which
Plaintiffs 	claim 	was 	inflated. 	(See 	Compl. 	¶¶ 	16-30, 	ECF 	No. 	1.)
While 	it 	is 	true 	that 	Plaintiffs 	do 	not 	provide 	certain 	details
- 	such 	as 	the 	specific 	amount 	of 	drugs 	purchased 	- 	that 	level 	of
specificity 	is 	not 	required. 	A 	complaint 	need 	not 	“allege
specific 	shipments 	to 	specific 	customers 	at 	specific 	times 	with
a 	specific 	dollar 	amount 	of 	improperly 	recognized 	revenue.”
Cooper 	v. 	Pickett, 	137 	F.3d 	616, 	627 	(9th 	Cir. 	1997). 	As 	long
as 	“the 	complaint 	‘identifies 	the 	circumstances 	of 	the 	alleged
fraud 	so 	that 	defendants 	can 	prepare 	an 	adequate 	answer,’” 	it 	is
sufficient 	under 	Rule 	9(b). 	Id. 	(quoting 	Warshaw 	v. 	Xoma 	Corp.,
74 	F.3d 	955, 	960 	(9th 	Cir. 	1996)); 	see 	also 	W. 	Reserve 	Life
Assur. 	Co. 	of 	Ohio 	v. 	Conreal 	LLC, 	715 	F. 	Supp. 	2d 	270, 	283
(D.R.I. 	2010) 	(stating 	that 	allegations 	are 	sufficient 	if 	they
“serve 	the 	goals 	of 	Rule 	9(b) 	to 	‘provide 	a 	defendant 	with 	fair
notice’ 	of 	the 	claim 	and 	discourage 	baseless 	actions” 	(quoting
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Suna, 	107 	F.3d 	at 	68)). 	Here, 	Plaintiffs’ 	allegations 	are
clear:
[T]he 	fraud 	occurred 	each 	time 	CVS 	electronically
submitted 	a 	claim 	to 	TPPs 	using 	the 	[National 	Council
for 	Prescription 	Drug 	Program 	(“NCPDP”)] 	reporting
system 	wherein 	it 	misrepresented 	the 	price 	for 	a
prescription 	generic 	drug 	to 	be 	the 	U&C 	price 	when, 	in
fact, 	CVS 	cash-paying 	customers 	were 	charged
substantially lower prices for the same drug.
(Pls.’ 	Opp’n 	to 	Mot. 	to 	Dismiss 	11, 	ECF 	No. 	20-1.) 	The
Complaint 	adequately 	puts 	CVS 	on 	notice 	of 	the 	details 	of 	the
alleged 	fraud. 	This 	is 	particularly 	true 	given 	that 	“all 	of 	the
missing 	details 	are 	likely 	in 	the 	possession 	of 	CVS.” 	Corcoran,
169 F. Supp. 3d at 986.2
B. 	Plaintiffs’ Claims under the IDCSA
1. 	Definition of “Consumer” under the IDCSA
One 	of 	the 	purposes 	of 	the 	IDCSA 	is 	to 	“protect 	consumers
from 	suppliers 	who 	commit 	deceptive 	and 	unconscionable 	sales
acts.” 	Ind. 	Code 	§ 	24-5-0.5-1(b)(2). 	The 	statute 	prohibits
deceptive 	acts 	“in 	connection 	with 	a 	consumer 	transaction,”
which 	is 	defined 	as 	a 	“sale 	. 	. 	. 	to 	a 	person 	for 	purposes 	that
are 	primarily 	personal, 	familial, 	charitable, 	agricultural, 	or
2 While 	CVS 	is 	correct 	that 	the 	plaintiffs 	in 	Corcoran 	v.
CVS 	Health 	Corporation 	& 	CVS 	Pharmacy 	Inc., 	gave 	more 	detail 	on
specific 	transactions, 	such 	as 	“the 	number 	of 	generic 	drugs
purchased, 	a 	time 	frame 	in 	which 	such 	purchases 	were 	made, 	the
state 	in 	which 	the 	purchases 	were 	made, 	and 	the 	total 	inflated
amount 	they 	were 	charged 	as 	a 	result 	of 	inflated 	U&C 	prices,”
169 	F. 	Supp. 	3d 	970, 	986 	(N.D. 	Cal. 	2016), 	nothing 	in 	Corcoran
indicates 	that 	the 	amount 	of 	detail 	in 	this 	Complaint 	would 	have
been insufficient.
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household, 	or 	a 	solicitation 	to 	supply 	any 	of 	these 	things.”
Id. 	§§ 	24-5-0.5-2(a)(l), 	24-5-0.5-3(a). 	“Person” 	is 	defined 	as
“an 	individual, 	corporation, 	the 	state 	of 	Indiana 	or 	its
subdivisions 	or 	agencies, 	business 	trust, 	estate, 	trust,
partnership, 	association, 	nonprofit 	corporation 	or 	organization,
or 	cooperative 	or 	any 	other 	legal 	entity.” 	Id. 	§ 	24-5-0.5-
2(a)(2). 	The 	statute 	empowers 	Indiana’s 	Attorney 	General 	to
enjoin 	a 	supplier’s 	deceptive 	or 	unconscionable 	acts 	and
authorizes 	courts 	to 	order, 	among 	other 	things, 	restitution 	for
“aggrieved 	consumers.” 	Id. 	§ 	24-5-0.5-4(c). 	It 	also 	creates 	a
civil 	remedy 	for 	a 	consumer 	claiming 	injury 	from 	conduct
prohibited 	by 	the 	statute: 	“A 	person 	relying 	upon 	an 	uncured 	or
incurable 	deceptive 	act 	may 	bring 	an 	action 	for 	the 	damages
actually 	suffered 	as 	a 	consumer 	as 	a 	result 	of 	the 	deceptive 	act
. 	. 	. 	.” 	Id. 	§ 	24-5-0.5-4(a). 	The 	question 	is 	thus 	whether 	the
TPPs suffered damages “as a consumer.”
Although 	the 	IDCSA 	defines 	“consumer 	transaction,” 	it 	does
not 	define 	“consumer,” 	which 	leaves 	some 	ambiguity 	as 	to 	what 	is
meant 	by 	“as 	a 	consumer.” 	CVS 	argues 	that 	because 	consumer 	is
not 	defined, 	it 	must 	be 	given 	its 	“plain 	meaning,” 	which 	is
“someone 	who 	‘uses’ 	or 	‘utilizes’ 	a 	purchased 	item.” 	(Def.’s
Mot. 	to 	Dismiss 	16, 	ECF 	No. 	13.) 	CVS 	also 	points 	out 	that
Indiana 	law 	has 	codified 	CVS’s 	proposed 	definition 	in 	other
areas, 	such 	as 	products 	liability 	law. 	(Id. 	(citing 	Ind. 	Code
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§ 34-6-2-29(2) 	(defining 	“[c]onsumer” 	as 	“any 	individual 	who
uses or consumes the product”)).)
There 	does 	not 	appear 	to 	be 	any 	Indiana 	case 	law 	addressing
this 	issue, 	but 	two 	federal 	courts 	have 	found 	TPPs 	to 	be
“consumers” 	under 	the 	IDCSA. 	See 	In 	re 	Actiq 	Sales 	& 	Mktg.
Practices 	Litig., 	790 	F. 	Supp. 	2d 	313, 	325-26 	(E.D. 	Pa. 	2011);
In 	re 	Bextra 	& 	Celebrex 	Mktg. 	Sales 	Practices 	& 	Prod. 	Liab.
Litig., 	495 	F. 	Supp. 	2d 	1027, 	1036-37 	(N.D. 	Cal. 	2007). 	In
Bextra, 	the 	court 	noted 	that 	the 	IDCSA 	had 	been 	changed 	to
define 	“consumer 	transaction” 	as 	“a 	sale 	. 	. 	. 	to 	a 	person” 	as
opposed 	to 	“an 	individual.” 	495 	F. 	Supp. 	2d 	at 	1037 	(emphasis
added). 	As 	noted 	above, 	the 	definition 	of 	“person” 	includes 	a
“corporation 	. 	. 	. 	or 	other 	legal 	entity.” 	Id. 	at 	1036-37
(quoting 	Ind. 	Code 	§ 	24-5-0.5-2(2)). 	Therefore, 	the 	court
reasoned, 	“a 	sale 	to 	a 	corporation 	‘for 	purposes 	that 	are
primarily 	personal’ 	qualifies 	as 	a 	consumer 	transaction 	within
the 	meaning 	of 	the 	statute,” 	even 	if 	it 	was 	not 	for 	the
corporation’s 	own 	use. 	Id. 	at 	1037. 	The 	court 	then 	determined
that 	“defendants 	have 	not 	demonstrated 	that 	their 	sale 	of
Celebrex 	and 	Bextra 	to 	the 	TPPs 	for 	the 	patients’ 	personal 	use
does 	not 	qualify 	as 	a 	consumer 	transaction 	as 	a 	matter 	of 	law.”
Id. 	Relying 	on 	Bextra, 	the 	court 	in 	Actiq 	likewise 	found 	that 	a
TPP could be a consumer under the IDCSA:
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[The 	IDCSA] 	requires 	only 	that 	the 	plaintiff’s 	damages
arise 	from 	defendant’s 	provision 	of 	such 	goods.
Plainly 	stated, 	there 	is 	no 	mandate 	under 	the 	IDCSA
that 	the 	plaintiff 	must 	be 	the 	consumer 	who 	purchased
the 	goods 	primarily 	for 	personal 	purposes. 	Plaintiff
is 	a 	valid 	consumer 	for 	purposes 	of 	the 	IDCSA, 	as 	its
use 	of 	Actiq, 	through 	its 	payment 	for 	prescriptions 	of
its 	members 	and 	beneficiaries, 	fits 	squarely 	within
the 	ordinary 	meaning 	of 	the 	term 	“consume.”
Plaintiff’s 	payments 	for 	the 	drug 	arose 	from 	the 	sales
of 	Actiq 	to 	its 	members 	and 	beneficiaries 	for 	the
treatment 	of 	illnesses, 	with 	such 	transactions
qualifying 	as 	consumer 	transactions 	for 	personal
purposes under the IDCSA.
Actiq, 790 F. Supp. 2d at 326.
CVS 	points 	to 	decisions 	from 	other 	jurisdictions 	that 	have
held 	that 	TPPs 	were 	not 	consumers 	under 	those 	states’ 	consumer
protection 	laws. 	See, 	e.g., 	In 	re 	Schering-Plough 	Corp.
Intron/Temodar 	Consumer 	Class 	Action, 	No. 	2:06-CV-5774, 	2009 	WL
2043604, 	at 	*32 	(D.N.J. 	July 	10, 	2009) 	(dismissing 	TPPs’ 	claims
under 	New 	Jersey’s 	Consumer 	Fraud 	Act); 	In 	re 	Rezulin 	Products
Liab. 	Litig., 	392 	F. 	Supp. 	2d 	597, 	616-17 	(S.D.N.Y. 	2005)
(finding 	that 	insurance 	companies 	were 	not 	“consumers” 	under 	New
Jersey’s 	consumer 	protection 	statute); 	S. 	Ill. 	Laborers’ 	&
Emp’rs 	Health 	& 	Welfare 	Fund 	v. 	Pfizer, 	Inc., 	No. 	08-CV-
5175(KMW), 	2009 	WL 	3151807, 	at 	*8-10 	(S.D.N.Y. 	Sept. 	30, 	2009)
(finding 	that 	TPPs 	were 	not 	“consumers” 	under 	the 	New 	Jersey,
Ohio, 	and 	Texas 	consumer 	protection 	statutes). 	However,
Plaintiffs 	distinguish 	Rezulin 	and 	Schering-Plough 	because 	in
those 	cases 	“the 	misrepresentations 	concerned 	the 	efficacy 	or
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safety 	of 	the 	drugs 	to 	plan 	members.” 	(Pls.’ 	Opp’n 	to 	Mot. 	to
Dismiss 	21-22, 	ECF 	No. 	20-1.) 	This 	Court 	agrees 	with 	Plaintiffs
that, 	“[u]nlike 	Rezulin 	and 	Schering-Plough, 	the
misrepresentations 	here 	are 	not 	indirect. 	CVS 	made
misrepresentations 	about 	the 	U&C 	prices 	to 	TPPs 	directly 	to
cause 	the 	TPPs 	to 	overpay.” 	(Id. 	at 	22.) 	Moreover, 	the 	statutes
and 	case 	law 	in 	New 	Jersey, 	Texas, 	and 	Ohio 	are 	different 	than
in 	Indiana. 	Case 	law 	in 	New 	Jersey 	has 	defined 	a 	“consumer” 	as
“one 	who 	uses 	(economic) 	goods, 	and 	so 	diminishes 	or 	destroys
their 	utilities.” 	S. 	Ill. 	Laborers, 	2009 	WL 	3151807, 	at 	*9-10
(citation 	omitted); 	see 	also 	Rezulin, 	392 	F. 	Supp. 	2d 	at 	616.
Similarly, 	“Texas 	courts 	have 	expressly 	stated 	that 	to 	state 	a
cause 	of 	action 	under 	the 	Texas 	Act 	. 	. 	. 	the 	‘goods 	and
services 	. 	. 	. 	must 	be 	purchased 	or 	leased 	for 	use 	by 	the 	party
seeking 	to 	state 	a 	cause 	of 	action.’” 	S. 	Ill. 	Laborers, 	2009 	WL
3151807, 	at 	*9 	(quoting 	Crown 	Life 	Ins. 	Co. 	v. 	Casteel, 	22
S.W.3d 	378, 	386 	(Tex. 	2000)). 	And 	in 	Ohio, 	“a 	sale 	must 	be 	to 	a
natural 	person 	in 	order 	to 	constitute 	a 	‘consumer 	transaction’
within the meaning of the Ohio Act.” Id.
The 	Court 	finds 	that 	TPPs 	can 	qualify 	as 	consumers 	under
the 	IDCSA. 	First, 	if 	the 	intent 	of 	the 	statute 	was 	to 	bar
anyone 	from 	bringing 	a 	claim 	who 	did 	not 	actually 	use 	the
product 	themselves, 	that 	could 	have 	easily 	been 	made 	clear.
Indeed, 	as 	CVS 	notes, 	“consumer” 	is 	defined 	that 	way 	in 	Indiana
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statutes 	concerning 	products 	liability;3 here, 	however, 	it 	was
not. 	Second, 	“consumer 	transaction” 	was 	specifically 	defined 	to
include 	corporations, 	and 	there 	is 	no 	indication 	that 	definition
would 	not 	include 	a 	scenario 	like 	this 	one 	where 	the 	party
making 	the 	payment 	is 	not 	the 	end-user. 	Third, 	the 	IDCSA 	states
that 	“[t]his 	chapter 	shall 	be 	liberally 	construed 	and 	applied 	to
promote 	its 	purposes 	and 	policies,” 	which 	include 	“protect[ing]
consumers 	from 	suppliers 	who 	commit 	deceptive 	and 	unconscionable
sales 	acts” 	and 	“encourag[ing] 	the 	development 	of 	fair 	consumer
sales 	practices.” 	Ind. 	Code 	§ 	24-5-0.5-1. 	Finally, 	the 	two
federal 	district 	courts 	to 	consider 	this 	issue 	have 	both 	found
that TPPs can be consumers under the IDCSA.
CVS 	argues 	in 	the 	alternative 	that 	the 	Court 	should 	certify
the 	question 	regarding 	the 	definition 	of 	“consumer” 	under 	the
IDCSA 	to 	the 	Indiana 	Supreme 	Court. 	Rule 	64(A) 	of 	the 	Indiana
Rules 	of 	Appellate 	Procedure 	provides, 	in 	relevant 	part, 	that
“any 	federal 	district 	court 	may 	certify 	a 	question 	of 	Indiana
law 	to 	the 	Supreme 	Court 	when 	it 	appears 	to 	the 	federal 	court
that 	a 	proceeding 	presents 	an 	issue 	of 	state 	law 	that 	is
determinative 	of 	the 	case 	and 	on 	which 	there 	is 	no 	clear
controlling 	Indiana 	precedent.” 	The 	decision 	to 	certify 	a
3 In 	the 	products 	liability 	context, 	it 	makes 	sense 	to
limit 	causes 	of 	action 	to 	those 	who 	actually 	use 	the 	product, 	as
they are the ones damaged by any defect.
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state-law 	question 	“rests 	in 	the 	sound 	discretion 	of 	the 	federal
court.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
Despite 	the 	lack 	of 	guidance 	from 	Indiana 	courts 	on 	this
issue, 	the 	Court 	finds 	that 	it 	is 	not 	a 	good 	candidate 	for
certification. 	The 	Court 	is 	not 	inclined 	to 	delay 	this 	complex
case 	with 	the 	hope 	that 	one 	part 	of 	it 	could 	be 	resolved 	with
certification. 	Moreover, 	the 	two 	other 	federal 	district 	courts
to 	confront 	this 	issue 	have 	both 	interpreted 	the 	statute 	the
same 	way 	that 	this 	Court 	has, 	without 	seeking 	to 	certify 	a
question.
2. 	Transactions that Occurred Prior to July 1, 2014
CVS 	alternatively 	argues 	that 	Plaintiffs’ 	claims 	under 	the
IDCSA 	prior 	to 	July 	1, 	2014 	should 	be 	dismissed. 	The 	version 	of
the 	IDCSA 	prior 	to 	July 	1, 	2014 	enumerated 	the 	types 	of 	conduct
that 	could 	be 	considered 	a 	“deceptive 	act.” 	See 	Lawson 	v. 	Hale,
902 	N.E.2d 	267, 	273-74 	(Ind. 	Ct. 	App. 	2009). 	The 	version 	that
has 	been 	in 	effect 	since 	July 	1, 	2014 	has 	a 	new 	catch-all 	fraud
category. 	CVS 	argues 	that 	its 	alleged 	conduct 	does 	not 	fit 	into
any 	of 	the 	pre-2014 	enumerated 	categories. 	Plaintiffs 	disagree,
stating 	that 	the 	following 	category 	applies: 	“That 	a 	specific
price 	advantage 	exists 	as 	to 	such 	subject 	of 	a 	consumer
transaction, 	if 	it 	does 	not 	and 	if 	the 	supplier 	knows 	or 	should
reasonably 	know 	that 	it 	does 	not.” 	(Pls.’ 	Opp’n 	to 	Mot. 	to
Dismiss 	23, 	ECF 	No. 	20-1 	(quoting 	Ind. 	Code 	§ 	24-5-0.5-3(b)(6));
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see 	also 	id. 	(“That 	is 	exactly 	what 	Plaintiffs 	allege 	here 	—
TPPs 	were 	guaranteed 	to 	pay 	no 	more 	than 	their 	contracted 	price
or 	the 	U&C 	price, 	which 	CVS 	then 	manipulated 	to 	ensure 	that 	no
price advantage existed.” (emphasis in original)).)
The 	Court 	agrees 	with 	Plaintiffs 	that 	CVS’s 	alleged 	conduct
could 	fall 	under 	the 	“specific 	price 	advantage” 	category. 	CVS
cites 	one 	case 	from 	Ohio 	interpreting 	a 	more 	specific 	“price
advantage” 	provision 	in 	Ohio’s 	Consumer 	Sales 	Practice 	Act, 	see
Martin 	v. 	Lamrite 	West, 	Inc., 	41 	N.E.3d 	850, 	852-53 	(Ohio 	Ct.
App. 	2015), 	but 	can 	point 	to 	no 	authority 	in 	Indiana 	indicating
that 	the 	conduct 	alleged 	here 	would 	not 	constitute 	a 	deceptive
act concerning a “specific price advantage.”
The 	next 	question 	is 	whether 	Plaintiffs 	adequately 	pled
violations 	of 	the 	pre-July 	2014 	IDCSA. 	CVS 	argues 	that
Plaintiffs 	are 	improperly 	attempting 	to 	amend 	their 	Complaint
through 	their 	opposition. 	CVS 	is 	correct 	that 	Plaintiffs’
Complaint 	never 	specifically 	mentions 	the 	“price 	advantage”
issue; 	however, 	they 	do 	say 	generally 	that 	“[t]he 	acts,
practices, 	misrepresentations 	and 	omissions 	by 	Defendant
described 	above, 	and 	Defendant’s 	dissemination 	of 	deceptive 	and
misleading 	U&C 	prices, 	occurring 	in 	the 	course 	of 	conduct
involving 	trade 	or 	commerce, 	constitute 	unfair 	methods 	of
competition 	and 	unfair 	or 	deceptive 	acts 	or 	practices 	within 	the
meaning 	of 	each 	of 	the 	above-enumerated 	[consumer 	protection]
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statutes.” 	(Compl. 	¶ 	64, 	ECF 	No. 	1.) 	While 	ideally 	the
Complaint 	would 	have 	been 	more 	specific, 	the 	Court 	finds 	that
the 	“price 	advantage” 	issue 	is 	sufficiently 	covered 	by
Plaintiffs’ 	allegation 	about 	“deceptive 	and 	misleading 	U&C
prices” to put CVS on notice, and does not warrant dismissal.
C. 	Plaintiffs’ Claims under State Laws Other than Indiana
1. 	Plaintiffs’ 	Standing 	to 	Bring 	Non-Indiana 	State
Law 	Claims 	on 	Behalf 	of 	Class 	Members 	from 	Other
States
Plaintiffs’ 	Complaint 	pleads 	violations 	of 	37 	different
state 	consumer 	protection 	laws 	on 	behalf 	of 	putative 	class
members. 	However, 	because 	the 	named 	Plaintiffs 	are 	both 	Indiana
TPPs, 	CVS 	argues 	they 	do 	not 	have 	standing 	to 	bring 	claims 	based
on other states’ consumer protection laws.
“The 	interplay 	between 	Article 	III 	standing 	and 	class
standing 	presents 	a 	surprisingly 	difficult 	question.” 	In 	re
Solodyn 	(Minocycline 	Hydrochloride) 	Antitrust 	Litig., 	No. 	CV 	14-
MD-02503-DJC, 	2015 	WL 	5458570, 	at 	*13 	(D. 	Mass. 	Sept. 	16, 	2015).
In 	Ortiz 	v. 	Fibreboard 	Corp., 	the 	United 	States 	Supreme 	Court
held 	that 	where 	“class 	certification 	issues 	are 	. 	. 	. 	‘logically
antecedent’ 	to 	Article 	III 	concerns, 	. 	. 	. 	Rule 	23 	certification
should 	be 	treated 	first, 	‘mindful 	that 	[the 	Rule’s] 	requirements
must 	be 	interpreted 	in 	keeping 	with 	Article 	III 	constraints 	. 	.
. 	.’” 	527 	U.S. 	815, 	831 	(1999) 	(quoting 	Amchem 	Products, 	Inc. 	v.
Windsor, 	521 	U.S. 	591, 	612-13 	(1997)). 	In 	the 	wake 	of 	Ortiz,
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“[c]ourts 	have 	taken 	different 	views 	about 	how 	to 	evaluate
Article 	III 	and 	class 	standing 	at 	the 	motion 	to 	dismiss 	stage
where 	putative 	class 	representatives 	assert 	claims 	arising 	under
the 	laws 	of 	states 	where 	they 	neither 	reside 	nor 	allege 	to 	have
suffered injury.” Solodyn, 2015 WL 5458570, at *14.
In 	Plumbers’ 	Union 	Local 	No. 	12 	Pension 	Fund 	v. 	Nomura
Asset 	Acceptance 	Corp., 	the 	First 	Circuit 	dismissed 	defendants
against 	whom 	absent 	class 	members, 	but 	not 	the 	named 	plaintiffs,
had 	alleged 	claims. 	632 	F.3d 	762, 	770-71 	(1st 	Cir. 	2011).
However, 	the 	Court 	acknowledged 	Ortiz 	and 	clarified 	that 	the
holding of Plumbers’ Union was with one “qualification”:
The 	qualification, 	on 	which 	we 	reserve 	judgment, 	is
one 	where 	the 	claims 	of 	the 	named 	plaintiffs
necessarily 	give 	them 	— 	not 	just 	their 	lawyers 	—
essentially 	the 	same 	incentive 	to 	litigate 	the
counterpart 	claims 	of 	the 	class 	members 	because 	the
establishment 	of 	the 	named 	plaintiffs’ 	claims
necessarily establishes those of other class members.
Id. 	at 	770. 	Several 	district 	courts 	have 	used 	this 	rationale 	to
defer 	ruling 	on 	standing 	issues 	until 	the 	Rule 	23 	analysis 	in
antitrust 	suits. 	See, 	e.g., 	Solodyn, 	2015 	WL 	5458570, 	at 	*14
(deferring 	consideration 	of 	standing 	where 	“[a]ll 	members 	of 	the
putative 	class 	have 	a 	common 	interest 	in 	litigating 	claims
arising 	from 	the 	Defendants’ 	[conduct]” 	(citation 	omitted)); 	In
re 	Nexium 	(Esomeprazole) 	Antitrust 	Litig., 	968 	F. 	Supp. 	2d 	367,
407 	(D. 	Mass. 	2013) 	(“This 	Court 	holds 	that 	the 	requisite
‘identity 	of 	issues’ 	and 	‘alignment 	of 	incentives’ 	is 	present
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amongst 	the 	End–Payors 	here. 	All 	members 	of 	the 	putative 	class
have 	a 	common 	interest 	in 	litigating 	claims 	arising 	from 	the
Defendants’ 	allegedly 	anticompetitive 	collusion 	designed 	to
cause 	the 	End–Payors 	to 	pay 	supracompetitive 	prices 	across 	the
several 	states.”); 	see 	also 	In 	re 	Relafen 	Antitrust 	Litig., 	221
F.R.D. 	260, 	269 	(D. 	Mass. 	2004) 	(certifying 	class 	that 	did 	not
have 	named 	plaintiffs 	from 	each 	state 	because 	“[t]he 	more
traditional 	inquiry, 	which 	. 	. 	. 	would 	require 	class 	counsel 	to
identify 	representatives 	from 	each 	state 	involved 	in 	a
multistate 	class 	action, 	would 	render 	class 	actions 	considerably
more 	cumbersome 	to 	initiate, 	and 	in 	turn, 	less 	effective 	in
overcoming 	a 	lack 	of 	incentives 	to 	prosecute 	individual 	rights
and 	in 	‘achiev[ing] 	economies 	of 	time, 	effort, 	and 	expense.’”
(quoting Amchem, 521 U.S. at 615)).
However, 	courts 	in 	other 	jurisdictions 	have 	noted 	that
“deferring 	[the] 	standing 	determination 	would 	‘allow 	named
plaintiffs 	in 	a 	proposed 	class 	action, 	with 	no 	injuries 	in
relation 	to 	the 	laws 	of 	certain 	states 	referenced 	in 	their
complaint, 	to 	embark 	on 	lengthy 	class 	discovery 	with 	respect 	to
injuries 	in 	potentially 	every 	state 	in 	the 	Union.’” 	In 	re
Niaspan 	Antitrust 	Litig., 	42 	F. 	Supp. 	3d 	735, 	758 	n.20 	(E.D. 	Pa.
2014) 	(citation 	omitted) 	(collecting 	cases). 	CVS 	cites 	a 	number
of 	cases 	where 	courts 	have 	dismissed 	claims 	because 	the 	named
plaintiffs 	did 	not 	have 	individual 	standing. 	See, 	e.g., 	In 	re
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Aggrenox 	Antitrust 	Litig., 	94 	F. 	Supp. 	3d 	224, 	251 	(D. 	Conn.
2015); 	Niaspan, 	42 	F. 	Supp. 	3d 	at 	757-58; 	In 	re 	HSBC 	Bank, 	USA,
N.A., 	Debit 	Card 	Overdraft 	Fee 	Litig., 	1 	F. 	Supp. 	3d 	34, 	48-49
(E.D.N.Y. 	2014); 	Pardini 	v. 	Unilever 	U.S, 	Inc., 	961 	F. 	Supp. 	2d
1048, 	1061 	(N.D. 	Cal. 	2013); 	In 	re 	Dairy 	Farmers 	of 	Am., 	Inc.
Cheese 	Antitrust 	Litig., 	No. 	09-CV-3690, 	2013 	WL 	4506000, 	at 	*8
(N.D. 	Ill. 	Aug. 	23, 	2013); 	In 	re 	Refrigerant 	Compressors
Antitrust 	Litig., 	No. 	2:09-MD-02042, 	2012 	WL 	2917365, 	at 	*6-7
(E.D. 	Mich. 	July 	17, 	2012); 	Cornelius 	v. 	Fidelity 	Nat’l 	Title
Co., 	No. 	C08-754MJP, 	2009 	WL 	596585, 	at 	*9-10 	(W.D. 	Wash. 	Mar.
9, 	2009). 	In 	addition, 	the 	court 	in 	Corcoran 	recently 	dismissed
claims 	brought 	by 	California 	named 	plaintiffs 	under 	the 	laws 	of
38 	other 	states, 	rejecting 	the 	plaintiffs’ 	argument 	that 	this
issue 	would 	be 	more 	appropriately 	handled 	at 	the 	class
certification 	stage. 	Corcoran 	v. 	CVS 	Health 	Corp., 	No. 	15-cv-
3504YGR, 2016 WL 4080124, at *2-3 (N.D. Cal. July 29, 2016).
Although 	there 	is 	authority 	going 	both 	ways 	on 	this 	issue,
the 	trend 	in 	the 	First 	Circuit 	seems 	to 	be 	deferring 	the
standing 	analysis 	to 	the 	class 	certification 	stage, 	so 	long 	as
the 	named 	plaintiffs 	have 	“essentially 	the 	same 	incentive 	to
litigate 	the 	counterpart 	claims 	of 	the 	class 	members 	because 	the
establishment 	of 	the 	named 	plaintiffs’ 	claims 	necessarily
establishes 	those 	of 	other 	class 	members.” 	Plumbers’ 	Union, 	632
F.3d 	at 	770. 	Here, 	the 	scheme 	alleged 	by 	Plaintiffs 	— 	that 	CVS
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has 	been 	fraudulently 	reporting 	its 	U&C 	price 	to 	TPPs 	— 	is 	the
same 	across 	the 	country. 	Plaintiffs 	have 	a 	collective 	interest
in 	litigating 	their 	claims 	together 	to 	attempt 	to 	recover 	and
have 	CVS 	change 	its 	system 	going 	forward. 	Moreover, 	“this 	is
not 	a 	case 	where 	the 	Named 	Plaintiffs 	are 	attempting 	‘to 	piggy-
back 	on 	the 	injuries 	of 	the 	unnamed 	class 	members.’ 	Rather, 	each
of 	the 	Named 	Plaintiffs 	asserts 	a 	personal 	injury 	resulting 	from
Defendants’ 	allegedly 	[fraudulent 	conduct].” 	In 	re 	Grand 	Theft
Auto 	Video 	Game 	Consumer 	Litig. 	(No. 	II), 	No. 	06-MD-
1739(SWK)(MHD), 	2006 	WL 	3039993, 	at 	*3 	(S.D.N.Y. 	Oct. 	25, 	2006)
(internal 	citation 	omitted). 	Put 	another 	way, 	CVS 	is 	not
challenging 	Plaintiffs’ 	standing 	to 	bring 	their 	own 	claims; 	it
is 	challenging 	their 	standing 	to 	bring 	claims 	on 	behalf 	of 	the
class. 	See 	id. 	(“The 	relevant 	question, 	therefore, 	is 	not
whether 	the 	Named 	Plaintiffs 	have 	standing 	to 	sue 	Defendants 	—
they 	most 	certainly 	do 	— 	but 	whether 	their 	injuries 	are
sufficiently 	similar 	to 	those 	of 	the 	purported 	Class 	to 	justify
the 	prosecution 	of 	a 	nationwide 	class 	action.”). 	This 	question
would 	be 	appropriately, 	and 	more 	efficiently, 	addressed 	at 	the
class 	certification 	stage. 	Accordingly, 	the 	Court 	denies
without 	prejudice 	Defendant’s 	Motion 	to 	Dismiss 	with 	respect 	to
Plaintiffs’ claims under state laws other than Indiana.
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2. 	Failure 	to 	Separately 	Plead 	the 	Elements 	of 	Each
State’s Consumer Protection Statute
Plaintiffs’ 	Complaint 	lists 	37 	state 	consumer 	protection
statutes, 	followed 	by 	an 	allegation 	that 	“[t]he 	acts, 	practices,
misrepresentations 	and 	omissions 	by 	Defendant 	described 	above,
and 	Defendant’s 	dissemination 	of 	deceptive 	and 	misleading 	U&C
prices, 	occurring 	in 	the 	course 	of 	conduct 	involving 	trade 	or
commerce, 	constitute 	unfair 	methods 	of 	competition 	and 	unfair 	or
deceptive 	acts 	or 	practices 	within 	the 	meaning 	of 	each 	of 	the
above-enumerated 	statutes.” 	(Compl. 	¶ 	64, 	ECF 	No. 	1.) 	CVS
claims 	this 	is 	insufficient 	because 	Plaintiffs 	do 	not 	“attempt[]
to 	allege 	that 	CVS’s 	conduct 	violates 	those 	general 	statutory
terms 	as 	interpreted 	by 	each 	state.” 	(Def.’s 	Mot. 	to 	Dismiss 	14,
ECF 	No. 	13.) 	According 	to 	CVS, 	“[o]ther 	courts 	have 	dismissed
claims 	alleged 	using 	a 	similar 	blunderbuss 	strategy, 	including
claims 	filed 	by 	the 	Indiana 	Funds’ 	same 	counsel 	in 	another
consumer 	protection 	case.” 	(Id. 	at 	15.) 	However, 	the 	cases 	CVS
cites 	do 	not 	support 	this 	proposition. 	In 	Indiana/Kentucky/Ohio
Reg’l 	Council 	of 	Carpenters 	Welfare 	Fund 	v. 	Cephalon, 	Inc.,
which 	involved 	Plaintiffs’ 	counsel, 	the 	court 	only 	analyzed 	the
Indiana statute because the plaintiff “agree[d] that we need not
consider 	any 	other 	state’s 	statute 	at 	this 	stage.” 	No. 	13-7167,
2014 	WL 	2115498, 	at 	*8 	(E.D. 	Pa. 	May 	21, 	2014). 	The 	plaintiff’s
claim 	was 	dismissed 	because 	it 	did 	not 	meet 	the 	requirements 	of
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the 	Indiana 	statute; 	the 	other 	state 	claims 	were 	dismissed
because 	the 	named 	plaintiff 	could 	no 	longer 	bring 	its 	own 	claim.
Id. at *9, 10.
The 	other 	two 	cases 	cited 	by 	CVS, 	which 	were 	not 	class
actions, 	involved 	bare-bones 	complaints. 	See 	Williams 	v. 	Davey
Tree 	Expert 	Co., 	No. 	8:10-MC-68-T-30TBM, 	2010 	WL 	3490992, 	at 	*1
(M.D. 	Fla. 	Aug. 	16, 	2010) 	(“This 	recitation 	of 	a 	laundry 	list 	of
causes 	of 	action 	not 	only 	fails 	to 	include 	the 	elements 	for 	each
claim, 	but 	also 	fails 	to 	provide 	any 	factual 	detail 	so 	as 	to
give 	Defendant 	fair 	notice 	of 	what 	the 	claims 	are 	and 	the
grounds 	upon 	which 	each 	rests.”); 	Protegrity 	Corp. 	v. 	Paymetric,
Inc., 	No. 	3:13-CV-01549(VLB), 	2014 	WL 	3849972, 	at 	*3 	(D. 	Conn.
Aug. 	5, 	2014) 	(dismissing 	complaint 	that 	“does 	not 	even 	offer 	a
‘formulaic 	recitation 	of 	the 	elements 	of 	a 	cause 	of 	action’”
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))).
CVS 	is 	adequately 	on 	notice 	of 	the 	conduct 	Plaintiffs 	claim
violates 	the 	various 	state 	consumer 	protection 	statutes. 	At 	the
class 	certification 	stage, 	Plaintiffs 	will 	need 	to 	delve 	into
the 	specifics 	of 	each 	statute 	to 	prove 	that 	the 	class
representatives 	are 	sufficiently 	typical; 	for 	the 	moment, 	their
pleading is sufficient.
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3. 	Failure 	to 	State 	a 	Claim 	under 	Various 	States’
Consumer Protection Laws
CVS 	further 	argues: 	(1) 	that 	Plaintiffs 	“have 	no 	claim
under 	the 	twenty-five 	statutes 	expressly 	requiring 	residence 	or
injury 	within 	the 	relevant 	state,” 	(2) 	that 	“[e]leven 	statutes
limit 	suits 	to 	consumers 	or 	natural 	persons, 	which 	the 	Indiana
Funds 	are 	not,” 	and 	(3) 	that 	“[s]ix 	statutes 	bar 	class 	actions.”
(Def.’s 	Mot. 	to 	Dismiss 	20-23, 	ECF 	No. 	13.)4 The 	Court 	finds
that 	it 	will 	be 	more 	efficient 	to 	address 	these 	issues 	at 	the
class 	certification 	stage. 	Accordingly, 	CVS’s 	Motion 	to 	Dismiss
with 	respect 	to 	these 	issues 	is 	denied 	without 	prejudice 	to
raising them again when the Court addresses class certification.
D. 	Plaintiffs’ 	Negligent 	Misrepresentation 	and 	Unjust
Enrichment Claims
1. 	Economic Loss Doctrine
The 	economic 	loss 	doctrine 	preserves 	the 	line 	between 	tort
and contract, providing that:
If 	tort 	claims 	are 	based 	on 	duties 	that 	are 	imposed 	by
contract, 	then 	under 	the 	economic-loss 	rule, 	contract
law 	provides 	the 	remedies 	for 	economic 	losses. 	The
economic-loss 	doctrine 	forbids 	a 	party 	from 	suing 	or
recovering 	in 	tort 	for 	economic 	or 	pecuniary 	losses
that 	arise 	only 	from 	breach 	of 	contract 	or 	are
associated 	with 	the 	contract 	relationship. 	In 	other
words, 	tort 	damages 	are 	generally 	not 	recoverable
unless 	the 	plaintiff 	suffers 	an 	injury 	that 	is
4 In response to these arguments, Plaintiffs have withdrawn
their 	claims 	under 	the 	consumer 	protection 	statutes 	in 	New
Jersey, 	Kansas, 	Ohio, 	and 	Texas. 	(See 	Pls.’ 	Opp’n 	to 	Mot. 	to
Dismiss 27-28, ECF No. 20-1.)
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independent 	and 	separate 	from 	the 	economic 	losses
recoverable under a breach-of-contract claim.
74 	Am. 	Jur. 	2d 	Torts 	§ 	24 	(2015); 	see 	Indianapolis-Marion 	Cty.
Pub. 	Library 	v. 	Charlier 	Clark 	& 	Linard, 	P.C., 	929 	N.E.2d 	722,
739 	(Ind. 	2010) 	(“A 	bright 	line 	distinction 	between 	the 	remedies
offered 	in 	contract 	and 	tort 	with 	respect 	to 	economic 	damages
. . . 	encourages 	parties 	to 	negotiate 	toward 	the 	risk
distribution 	that 	is 	desired 	or 	customary.” 	(citation 	omitted)).
Here, 	CVS 	argues 	that 	Plaintiffs’ 	claims 	stem 	from 	CVS’s
contractual 	duty 	to 	charge 	them 	the 	U&C 	price. 	However, 	as
Plaintiffs 	note, 	the 	court 	in 	Corcoran 	rejected 	that 	same
argument:
CVS 	argues 	that 	Plaintiffs’ 	fraud 	and 	negligent
misrepresentation 	claims 	are 	nothing 	more 	than
disguised 	breach 	of 	contract 	claims, 	which 	should 	be
dismissed 	under 	the 	economic 	loss 	doctrine. 	The 	Court
rejects 	the 	very 	premise 	of 	Defendants’ 	argument. 	To
support 	dismissal, 	Defendants 	contend 	the 	[Complaint]
does 	not 	allege 	any 	wrongdoing 	independent 	of 	its
contractual 	obligation 	to 	report 	an 	accurate 	U&C 	price
to 	third-party 	payors. 	Not 	so. 	The 	gravamen 	of
Plaintiffs’ 	allegations 	is 	that 	CVS 	created 	the 	HSP
program 	to 	report 	misleading 	U&C 	prices 	in 	a 	manner
that 	contravened 	industry 	standards 	with 	the 	intent 	to
deceive 	Plaintiffs 	and 	class 	members. 	Plaintiffs
additionally 	allege 	that 	CVS 	misrepresented 	the
availability 	of 	the 	HSP 	program 	and 	their 	ability 	to
participate 	therein. 	These 	allegations 	undoubtedly
fall 	outside 	of 	CVS’s 	contractual 	obligations 	to 	third
party payors.
169 	F. 	Supp. 	3d 	at 	988 	(emphasis 	added). 	CVS 	attempts 	to
distinguish 	Corcoran 	because 	the 	plaintiffs 	there 	were 	end-
payors; but this did not factor into the court’s analysis.
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Plaintiffs 	also 	point 	out 	that 	their 	Complaint 	states 	that
CVS 	is 	required 	to 	report 	an 	accurate 	U&C 	price 	by 	the 	NCPDP.
CVS 	takes 	issue 	with 	the 	merits 	of 	this 	claim, 	arguing 	that 	the
U&C 	field 	on 	the 	relevant 	NCPDP 	form 	is 	optional. 	This 	argument
may 	end 	up 	being 	successful 	further 	down 	the 	line, 	but 	at 	this
stage, 	the 	Court 	must 	take 	what 	the 	Plaintiffs 	pled 	at 	face
value. 	(See 	Compl. 	¶ 	16, 	ECF 	No. 	1 	(“Pursuant 	to 	the 	NCPDP
reporting 	standard, 	pharmacies 	are 	required 	to 	report 	the 	amount
of 	its 	U&C 	price 	for 	each 	prescription 	transaction 	using 	NCPDP’s
mandatory pricing segment code 426–DQ.”).)
The 	bottom 	line 	is 	that, 	based 	on 	the 	Complaint’s 	statement
that 	CVS 	orchestrated 	a 	fraudulent 	scheme 	that 	violated 	industry
standards, 	the 	economic 	loss 	doctrine 	does 	not 	bar 	their 	claims
at 	this 	stage. 	It 	may 	well 	come 	out 	in 	discovery 	that 	the 	only
basis 	for 	the 	claims 	is 	in 	contract, 	in 	which 	case 	this 	could 	be
revisited at summary judgment.
2. 	Negligent Misrepresentation
The 	elements 	of 	a 	claim 	for 	negligent 	misrepresentation
include 	(1) 	receipt 	of 	a 	misrepresentation 	made 	by 	a 	defendant
and 	(2) 	justifiable 	reliance 	on 	the 	misrepresentation. 	See
Restatement 	(Second) 	of 	Torts 	§ 	552 	(1977); 	Eby 	v. 	York-Div.,
Borg-Warner, 	455 	N.E.2d 	623, 	628 	(Ind. 	Ct. 	App. 	1983) 	(following
§ 	552). 	CVS 	argues 	that, 	even 	if 	the 	economic 	loss 	doctrine
does 	not 	apply, 	Plaintiffs’ 	negligent 	misrepresentation 	claim
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fails 	because: 	(1) 	“The 	Complaint 	alleges 	that 	U&C 	prices 	were
reported 	to 	‘Third-Party 	Payors’ 	generically; 	it 	does 	not 	allege
that 	U&C 	prices 	were 	reported 	to 	the 	Indiana 	Funds
specifically”; 	and 	(2) 	“the 	Indiana 	Funds 	have 	not 	plausibly
pled 	that 	they 	justifiably 	relied 	on 	an 	‘erroneous’ 	reported
price.” (Def.’s Mot. to Dismiss 28-29, ECF No. 13.)
Regarding 	the 	first 	issue, 	the 	Complaint 	makes 	clear 	that
CVS 	reported 	the 	U&C 	price 	to 	all 	TPPs, 	including 	the 	Indiana
Funds. 	The 	second 	issue 	is 	a 	closer 	question. 	CVS 	argues 	that
the 	Complaint 	admits 	that 	the 	HSP 	program 	was 	well 	advertised
and 	therefore 	Plaintiffs 	cannot 	claim 	they 	were 	unaware 	that 	the
HSP 	price 	was 	lower 	than 	the 	reported 	U&C 	price. 	CVS 	also
submitted 	a 	notice 	of 	supplemental 	authority 	(ECF 	No. 	32)
regarding 	the 	First 	Circuit’s 	recent 	decision 	in 	United 	States
ex 	rel. 	Winkelman 	v. 	CVS 	Caremark 	Corp., 	which 	affirmed
dismissal 	of 	a 	False 	Claims 	Act 	(“FCA”) 	claim 	against 	CVS
concerning 	its 	HSP 	program. 	827 	F.3d 	201, 	203 	(1st 	Cir. 	2016).
The 	First 	Circuit 	held 	that 	the 	“public 	disclosure 	bar” 	of 	the
FCA 	prohibited 	the 	plaintiffs 	in 	that 	case 	from 	maintaining 	a
qui 	tam 	lawsuit 	based 	on 	the 	allegation 	that 	CVS 	was 	required
to, 	but 	did 	not, 	report 	its 	HSP 	program 	prices 	to 	government
healthcare 	programs 	as 	its 	U&C 	price. 	Id. 	at 	203, 	213. 	“[T]he
public 	disclosure 	bar 	forecloses 	a 	qui 	tam 	action 	‘if
substantially 	the 	same 	allegations 	or 	transactions 	as 	alleged 	in
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the 	action 	. 	. 	. 	were 	publicly 	disclosed’ 	in 	a 	list 	of
enumerated 	sources.” 	Id. 	at 	208 	(quoting 	31 	U.S.C.
§ 3730(e)(4)(A)). 	The 	Court 	found 	that 	“publicly 	disclosed
materials 	[available 	before 	relators 	filed 	suit 	in 	August 	2011]
revealed, 	quite 	plainly, 	that 	CVS 	was 	not 	providing 	its 	HSP
price 	as 	its 	U&C 	price 	. 	. 	. 	.” 	Id. 	at 	209. 	CVS 	argues 	that
likewise 	here, 	Plaintiffs 	could 	not 	have 	justifiably 	relied 	on
the U&C price because the HSP price was so well publicized.
Plaintiffs 	counter 	that 	knowing 	the 	HSP 	price 	was 	not
enough 	to 	reveal 	the 	fraud 	because 	they 	were 	unaware 	of 	the
percentage 	of 	cash-paying 	customers 	enrolled 	in 	the 	HSP 	program.
Without 	that 	information, 	they 	could 	not 	determine 	whether 	the
U&C 	price 	— 	the 	price 	that 	the 	majority 	of 	cash 	customers 	pay 	—
was the HSP price or not.
The 	Court 	agrees 	with 	Plaintiffs 	- 	at 	least 	at 	this 	stage
of 	the 	litigation. 	The 	crux 	of 	their 	argument 	is 	that 	the 	HSP
price 	should 	have 	been 	reported 	as 	the 	U&C 	price, 	not 	because 	it
was 	the 	lowest 	price 	CVS 	charged, 	but 	because 	it 	was 	the 	price
most 	cash-paying 	customers 	paid. 	By 	contrast, 	Winkelman 	dealt
with 	Medicare 	Part 	D 	and 	Medicaid, 	and 	at 	least 	in 	Connecticut,
“regulations 	mandated 	that 	CVS 	provide 	Medicaid 	with 	‘the 	lowest
drug 	price’ 	that 	CVS 	was 	offering 	to 	consumers 	. 	. 	. 	.” 	Id.
(emphasis 	added). 	It 	was 	clear 	from 	the 	publicity 	that 	the 	U&C
price 	that 	CVS 	was 	charging 	Medicaid 	was 	not 	the 	lowest 	price.
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While 	CVS 	argues 	in 	its 	Reply 	that, 	because 	Plaintiffs 	are
sophisticated 	parties, 	they 	should 	have 	inquired 	as 	to 	the
percentage 	of 	customers 	enrolled 	in 	the 	HSP 	program, 	the 	Court
finds 	that, 	at 	the 	motion 	to 	dismiss 	stage, 	Plaintiffs 	have
sufficiently pled justifiable reliance.
3. 	Unjust Enrichment
Aside 	from 	the 	economic 	loss 	doctrine, 	CVS’s 	main 	argument
as 	to 	Plaintiffs’ 	unjust 	enrichment 	claim 	is 	that 	it 	concerns
the 	same 	conduct 	that 	CVS 	argues 	is 	not 	actionable 	under
consumer 	protection 	statutes 	or 	the 	common 	law 	of 	negligent
misrepresentation. 	Therefore, 	“[i]f 	the 	Court 	finds 	that
Plaintiffs 	have 	not 	stated 	valid 	claims 	for 	consumer 	protection
violations 	and 	negligent 	misrepresentation, 	the 	unjust
enrichment 	claim 	must 	fail 	as 	well, 	since 	Plaintiffs 	provide 	no
independent 	basis 	for 	finding 	that 	CVS 	acted 	‘unjustly’ 	by
reporting 	a 	U&C 	price 	that 	was 	not 	the 	HSP 	program 	price.”
(Def.’s 	Mot. 	to 	Dismiss 	31, 	ECF 	No. 	13.) 	Because 	the 	Court
finds 	that 	Plaintiffs 	have 	sufficiently 	alleged 	a 	fraudulent
scheme, the unjust enrichment claim may also go forward.
III. Conclusion
For 	the 	foregoing 	reasons, 	CVS’s 	Motion 	to 	Dismiss 	and
Motion 	to 	Certify 	Question 	to 	the 	Indiana 	Supreme 	Court 	are 	both
DENIED. 	As 	stated 	herein, 	denial 	of 	CVS’s 	Motion 	to 	Dismiss 	is
WITHOUT 	PREJUDICE 	to 	CVS 	raising 	its 	arguments 	concerning 	claims
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under 	state 	laws 	other 	than 	Indiana 	at 	the 	class 	certification
stage.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: November 1, 2016
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