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State v. Pharma

United States District Court, D. New Hampshire

January 9, 2018

State of New Hampshire
v.
Purdue Pharma, et al.

          James T. Boffetti, Esq.

          Mark Cheffo, Esq.

          W. Daniel Deane, Esq.

          Mara Cusker Gonzalez, Esq.

          Linda Singer, Esq.

          David A. Vicinanzo, Esq.

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         The State of New Hampshire has sued Purdue Pharma[1] based on misrepresentations Purdue allegedly made to the state's consumers concerning the risks and benefits of the company's opioid pain medications. The State filed its complaint in Merrimack County Superior Court and Purdue later removed the case to this court. Purdue argues that the court has subject matter jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), but the State has challenged Purdue's jurisdictional argument in a motion to remand. The current dispute turns on whether the case is removable under CAFA as a “class action.”

         I. BACKGROUND

         For at least 20 years, Purdue has manufactured, marketed, and sold opioid pain medications in New Hampshire and elsewhere.[2]During this period, Purdue spent hundreds of millions of dollars promoting its medications in ways that falsely and misleadingly minimized the risks of opioid addiction and overstated the benefits Purdue's medications could provide. As a direct result, opioid addiction, overdoses, and deaths have exploded, to the point where the Center for Disease Control has described the current situation as a “public health epidemic.” Doc. No. 4 at 8.

         The State contends that Purdue's false and misleading marketing campaign has injured the State, its municipalities, and its consumers. It asserts claims for violations of New Hampshire's Consumer Protection Act (“CPA”), N.H. Rev. Stat. § 358-A; violations of the New Hampshire Medicaid Fraud and False Claims Act, N.H. Rev. Stat. § 167:61-b, Public Nuisance, Unjust Enrichment, and Fraudulent or Negligent Misrepresentation. The State seeks to recover damages for its own injuries as well as injunctive relief, civil penalties, restitution, abatement, and attorneys' fees on behalf of itself, its municipalities, and its consumers.

         II. STANDARD OF REVIEW

         The State bases its remand motion on 28 U.S.C. § 1447(c), which requires a federal court to remand a removed case if the court lacks subject matter jurisdiction.

         Purdue has responded by claiming that CAFA gives the court jurisdiction to consider the State's complaint. A defendant who removes a case under CAFA must plausibly allege that each of CAFA's jurisdictional requirements have been satisfied. See Dart Cherokee Basin Operating Co. v. Owens,135 S.Ct. 547, 554 (2014). If the plaintiff disputes the evidentiary basis for the defendant's assertion of jurisdiction, the defendant must also establish a “reasonable probability” that the facts support the defendant's jurisdictional claim. See Pazul v. Tough Mudder,819 F.3d 548, 552 (1st Cir. 2016) (amount in controversy requirement). At that ...


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