Allergan, Inc. v. Athena Cosmetics, Inc. , 640 F.3d 1377 ( 2011 )

United States Court of Appeals
for the Federal Circuit
__________________________
ALLERGAN, INC.,
Plaintiff-Appellant,
and
MURRAY A. JOHNSTONE, M.D. AND DUKE
UNIVERSITY,
Plaintiffs,
v.
ATHENA COSMETICS, INC., PHARMA TECH
INTERNATIONAL, INC., AND NORTHWEST
COSMETIC LABORATORIES, INC.,
Defendants-Appellees,
and
COSMETIC ALCHEMY, LLC
Defendant-Appellee,
and
NUTRA-LUXE M.D.,
Defendant,
and
STELLA INTERNATIONAL, LLC,
PRODUCT INNOVATIONS, LLC, AND METICS, LLC,
Movants-Appellees,
and
PETER THOMAS ROTH, INC. AND
PETER THOMAS ROTH LABS LLC,
Defendants-Appellees,
ALLERGAN v. ATHENA COSMETICS 2
and
LIFETECH RESOURCES, LLC AND ROCASUBA,
INC.,
Defendants-Appellees,
and
GLOBAL MDRX, COSMETIC TECHNOLOGIES,
INC., DMI, LA CANADA VENTURES INC.,
AND SUSAN F. LIN, M.D.,
Defendants.
__________________________
2010-1394
__________________________
Appeal from the United States District Court for the
Central District of California in consolidated case nos. 07-
CV-1316 and 09-CV-0328, Judge James V. Selna.
__________________________
Decided: May 24, 2011
__________________________
MARK A. PERRY, Gibson, Dunn & Crutcher, LLP, of
Washington, DC, argued for plaintiff-appellant. With him
on the brief were JEFFREY T. THOMAS and BLAINE H.
EVANSON, Gibson, Dunn, & Crutcher, LLP, of Irvine,
California.
STEPHEN BENSON, Katten Muchin Rosenman, LLP, of
Chicago, Illinois, argued for defendants-appellees Athena
Cosmetics, Inc., et al. With him on the brief was ROBERT
B. BREISBLATT.
3 ALLERGAN v. ATHENA COSMETICS
JEFFREY L. WEISS, Weiss & Moy, P.C., of Scottsdale,
Arizona, argued for defendants-appellees Cosmetic Al-
chemy, LLC and Movants-appellees Stella International,
LLC, et al.
MARTIN C. WASHTON, Towle Denison Smith & Manis-
calco, LLP, of Los Angeles, California, argued for defen-
dants-appellees Lifetech Resources, LLC, et al. With him
on the brief was AMANDA R. WASHTON.
__________________________
Before NEWMAN, GAJARSA, and PROST, Circuit Judges.
GAJARSA, Circuit Judge.
This case arises from the district court’s dismissal of
Allergan, Inc.’s (“Allergan”) claim for relief under Califor-
nia Business & Professions Code (“UCL”) §§ 17200 et
seq.—the unfair competition provisions—for lack of stand-
ing. The issue before the court is whether a party must
allege an injury compensable by restitution to have stand-
ing under the UCL. The California Supreme Court makes
clear in two recent decisions, Kwikset Corp. v. Superior
Court of Orange County, 246 P.3d 877 (Cal. 2011) and
Clayworth v. Pfizer, Inc., 233 P.3d 1066 (Cal. 2010), that
UCL § 17204, as amended by Proposition 64, requires
that a party need only allege an injury in fact that was
caused by defendant’s unfair competition. We therefore
reverse and remand.
BACKGROUND
Allergan manufactures and sells Latisse®, a FDA-
approved product that uses PGF, a prostaglandin com-
pound, to treat inadequate eyelash growth. Allergan’s
First Am. Compl. 5. In fact, Allergan is the only author-
ized manufacturer of a prostaglandin product for the
stimulation of hair growth. Id. The only other FDA-
ALLERGAN v. ATHENA COSMETICS 4
approved uses for prostaglandin compounds are to treat
glaucoma and ocular hypertension. Id. The numerous
defendants 1 in this case allegedly manufacture, market,
and/or sell products containing PGF for hair and/or eye-
lash growth. Id. at 6-9.
Allergan filed an action in the United States District
Court for the Central District of California, alleging that
the defendants infringed or induced infringement of U.S.
Patent Nos. 6,262,105, 7,351,404, and 7,388,029 under 35
U.S.C. § 271. Allergan also alleged that the defendants
violated UCL §§ 17200 et seq. Section 17200 defines
“unfair competition” as “any unlawful, unfair or fraudu-
lent business act or practice . . . .” Allergan alleged that
the defendants violated the UCL by “unlawfully market-
ing, selling, and distributing hair and/or eyelash growth
products without a prescription, without an approved new
drug application [from] the FDA or the California De-
partment of Health Services, and in violation of state and
federal misbranding laws.” Allergan’s First Am. Compl.
11. It also alleged that the use of defendants’ products
“can result in significant adverse reactions and substan-
tial harm” and that the products are not “recognized . . .
as safe and effective.” Id. at 12-13. Furthermore, Aller-
1 The defendants are Athena Cosmetics, Inc.;
Pharma Tech International, Inc.; Northwest Cosmetic
Laboratories, Inc.; Cosmetic Alchemy, LLC; Stella Inter-
national LLC; Product Innovations LLC; Metics LLC;
Lifetech Resources, LLC; and Rocasuba, Inc. Although
appearing in the caption, Nutra-Luxe, M.D., Peter Tho-
mas Roth, Inc. and Peter Thomas Roth Labs LLC did not
file a brief in opposition to Allergan’s appeal. The remain-
ing defendants, Global MDRX; Cosmetic Technologies,
Inc.; DMI La Canada Ventures Inc.; and Susan F. Lin,
M.D., are not named in Allergan’s August 10, 2009 com-
plaint, its “operative complaint” for this appeal. Appel-
lant’s Br. 2.
5 ALLERGAN v. ATHENA COSMETICS
gan claimed that the “[d]efendants’ unfair competition has
resulted in and continues to result in serious and irrepa-
rable injury to Allergan, including but not limited to lost
sales, revenue, market share, and asset value.” Id. at 14.
A party found to have violated the UCL may be en-
joined or required to “restore to a person in interest any
money or property, real or personal, which may have been
acquired by means of such unfair competition.” UCL
§ 17203. Thus, the remedies available to injured parties
are an injunction and restitution, id., both of which Aller-
gan requested, Allergan’s First Am. Compl. 15.
Defendants Athena Cosmetics, Inc., Pharma Tech In-
ternational, Inc., and Northwest Cosmetic Laboratories,
LLC (collectively, “Athena”) moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c),
claiming that Allergan lacked standing to pursue its claim
that Athena violated UCL §§ 17200 et seq. Allergan, Inc.
v. Athena Cosmetics, Inc., Case Nos. 07-CV-1316 and 09-
CV-328, slip op. at 1 (Mar. 3, 2010) (“Dismissal Opinion”).
According to Athena, because Allergan did not allege an
injury that was compensable by restitution, it failed to
meet the standing requirements of UCL § 17204. Id. at 3.
Section 17204 states that “actions for relief pursuant
to this chapter shall be prosecuted . . . by a person who
has suffered injury in fact and has lost money or property
as a result of the unfair competition.” At the time the
Rule 12(c) motion was filed and decided, California state
courts had generally held that “[b]ecause remedies for
individuals under the [unfair competition law] are re-
stricted to injunctive relief and restitution, the import of
the [loss of money or property] requirement [in UCL
§ 17204] is to limit standing to individuals who suffer
losses of money or property that are eligible for restitu-
tion.” Citizens of Humanity, LLC v. Costco Wholesale
ALLERGAN v. ATHENA COSMETICS 6
Corp., 171 Cal. App. 4th 1, 22 (Cal. Ct. App. 2009) (cita-
tion omitted) overruled by Kwikset, 246 P.3d at 895.
The district court determined that Allergan had failed
to plead an injury that was eligible for restitution. Rely-
ing on Korea Supply, it held that a plaintiff seeking
restitution must have an ownership interest or a vested
interest in the money it seeks to recover. Dismissal
Opinion at 4-5 (citing Korea Supply Co. v. Lockheed
Martin Corp., 29 Cal. 4th 1134, 1149 (2003)). The district
court reasoned that Allergan did not have an ownership
interest in its lost profits or market share because the
defendants’ profits from sales of their products came from
third party consumers, not Allergan. Dismissal Opinion
at 4-5 (citing Korea Supply, 29 Cal. 4th at 1149). More-
over, the district court held that Allergan lacked a vested
interest in its lost profits or market share because its
expectation of receiving this money was contingent on
payment by a third party. Id. at 5 (citing Korea Supply,
29 Cal. 4th at 1150).
The district court concluded that Allergan had not
sufficiently plead an injury that could be compensated by
restitution. Id. at 6. Earlier California precedent held
that a party that failed to plead an injury compensable by
restitution lacked standing under the UCL. Relying on
this precedent, the district court found that Allergan
lacked standing to obtain any relief under the UCL. Id. at
3-12. Finding that there was no just reason for delay in
appealing this claim, the district court entered judgment
pursuant to Federal Rule of Civil Procedure 54(b) and
dismissed Allergan’s claim for relief under the UCL as to
all defendants with prejudice. 2 Allergan now appeals the
2 Although Athena brought the motion for judgment
on the pleadings, Allergan and all the defendants, except
Nutra-Luxe, M.D., Global MDRX, Cosmetic Technologies,
7 ALLERGAN v. ATHENA COSMETICS
dismissal of its UCL claims. Allergan’s patent claims
remain pending before the district court, but the action is
stayed until the outcome of this appeal. Although the
patent claims are not presently at issue, they give rise to
this court’s jurisdiction over the appeal. See 28 U.S.C.
§ 1295(a)(1) (stating that this court has jurisdiction “of an
appeal from a final decision of a district court of the
United States . . . if the jurisdiction of that court was
based, in whole or in part, on section 1338 of this title . . .
.” (emphases added)). We therefore have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(1).
STANDARD OF REVIEW
When this court reviews a judgment on the pleadings,
we follow the procedural law of the regional circuit.
Imation Corp. v. Koninklijke Philips Elecs. N.V., 586 F.3d
980, 985 (Fed. Cir. 2009) (citation omitted). In the Ninth
Circuit, a grant of judgment on the pleadings is reviewed
de novo. Or. Nat. Desert Ass’n v. U.S. Forest Serv., 550
F.3d 778, 782 (9th Cir. 2008) (citation omitted). On
review, the court must “accept all material allegations in
the complaint as true and construe them in the light most
favorable to [the nonmoving party].” Turner v. Cook, 362
F.3d 1219, 1225 (9th Cir. 2004).
DISCUSSION
The resolution of this appeal turns on the allegations
a party asserting a claim under the UCL must state to
satisfy the standing requirements of UCL § 17204. Sub-
Inc., DMI La Canada Ventures Inc., and Susan F. Lin,
M.D., stipulated that the district court’s March 3, 2010
order dismissing Allergan’s UCL claim applied to them.
Allergan, Inc. v. Athena Cosmetics, Inc., Case No. 09-CV-
0328 (May 5, 2010) (D.I. 101); Allergan, Inc. v. Athena
Cosmetics, Inc., Case No. 07-CV-1316 (Mar. 11, 2010) (D.I.
518, 519).
ALLERGAN v. ATHENA COSMETICS 8
sequent to the adoption of Proposition 64—a California
voter’s amendment that restricted the scope of standing
under section 17204—California courts required an
additional limitation for a plaintiff to have standing under
the UCL: namely, that the party asserting the claim must
allege an injury compensable by restitution. As discussed
below, the recent California Supreme Court decisions in
Kwikset Corp. v. Superior Court of Orange County, 246
P.3d 877 (Cal. 2011) and Clayworth v. Pfizer, Inc., 233
P.3d 1066 (Cal. 2010), make clear that section 17204 only
requires that a party allege an injury in fact and that the
injury was caused by the defendant. Moreover, section
17204 does not mandate a “business dealings require-
ment,” as the defendants argue. Finally, because we hold
that Allergan’s pleadings meet the standing requirements
of section 17204, we need not reach the issue of whether it
plead an injury that could be compensated by restitution.
See Clayworth, 233 P.3d at 1087.
I.
A.
Prior to November 2004, section 17204 allowed the
Attorney General, local officials, and “any person acting
for the interests of itself, its members or the general
public” to file an action for relief under the UCL. UCL
§ 17204 (2003). Because a broad range of parties had
standing to bring a claim under the UCL, frivolous law-
suits were frequently filed by plaintiffs who had “not used
the defendant's product or service, viewed the defendant's
advertising, or had any other business dealing with the
defendant.” Cal. Prop. 64 § 1, approved by voters, Gen.
Elec. (Nov. 2, 2004). In some instances, these actions
were nothing more than shakedown schemes that tar-
geted small businesses for minor violations of regulations.
9 ALLERGAN v. ATHENA COSMETICS
See Angelluci v. Century Supper Club, 158 P.3d 718, 728
n.10 (Cal. 2007).
To address these problems, the California voters
adopted Proposition 64, which narrowed the standing
requirements under the UCL. The intent of the proposi-
tion was to “prohibit private attorneys from filing law-
suits for unfair competition where they have no client who
has been injured in fact under the standing requirements
of the United States Constitution.” Cal. Prop. 64 § 1(e).
Proposition 64 therefore amended section 17204 to limit a
private person’s right to sue under the UCL to someone
who has “suffered injury in fact and has lost money or
property as a result of such unfair competition.” Id. § 3.
The proposition emphasized that a private person must
meet these standing requirements by also amending
section 17203 to state that “[a]ny person may pursue
representative claims or relief on behalf of others only if
the claimant meets the standing requirements of Section
17204.” Id. § 2 (emphasis added). Proposition 64 did not
amend the Attorney General’s and local officials’ right to
bring unfair competition claims on behalf of the general
public. Id. §§ 2, 3.
B.
After Proposition 64 was adopted, both state and fed-
eral California courts interpreted the limitation of stand-
ing under section 17204 to mean that the money or
property lost by individuals alleging unfair competition
must be “eligible for restitution.” Buckland v. Threshold
Enters., Ltd., 155 Cal. App. 4th 798, 817 (Cal. Ct. App.
2008) overruled by Kwikset, 246 P.3d at 895; see also
Walker v. Geico Gen. Ins. Co., 558 F.3d 1025, 1027 (9th
Cir. 2009); Walker v. USAA Cas. Ins. Co., 474 F. Supp. 2d
1168, 1173 (C.D. Cal. 2007); Citizens, 171 Cal. App. 4th at
22. This conclusion rested on connecting the “lost money
ALLERGAN v. ATHENA COSMETICS 10
or property” language in section 17204 with the language
in section 17203 that allowed restitution “as may be
necessary to restore any person in interest any money or
property.” The use of money or property in both sections
led courts to conclude that section 17204 limited standing
to those who had an injury compensable by restitution.
See, e.g., Buckland, 155 Cal. App. 4th at 817-18.
In its most recent decisions, the California Supreme
Court has rejected this reasoning. It concluded in Kwikset
and Clayworth that “ineligibility for restitution is not a
basis for denying standing under section 17204 and
disapprove[d] those cases [including Citizens and Buck-
land] that have concluded otherwise.” Kwikset, 246 P.3d
at 895. In Kwikset, the court held that to satisfy the
standing requirements of section 17204, a plaintiff must
allege exactly what the statutory text requires: “(1) . . . a
loss or deprivation of money or property sufficient to
qualify as injury in fact, i.e. economic injury, and (2) . . .
that [the] economic injury was the result of, i.e. caused by,
the unfair business practice . . . .” Id. at 885.
The plaintiff in Kwikset, who had purchased locks
falsely labeled “Made in the U.S.A.,” had standing to sue
under the UCL because (1) he paid for a lock; and (2)
purchased the lock because its label said “Made in the
U.S.A.” and would not have purchased the lock if it were
not made in the United States. Id. at 889-91. In rejecting
the judicially-imposed requirement to allege an injury
compensable by restitution, the court explained that
“nothing in the text or history of Proposition 64 suggests”
that the drafters intended “to make standing under
section 17204 expressly dependent on eligibility for resti-
tution under section 17203.” Id. at 894-95. Thus, the
availability of injunctive relief under section 17203 is not
contingent on a party’s ability to plead an injury com-
pensable by restitution. Id.
11 ALLERGAN v. ATHENA COSMETICS
The California Supreme Court used the same ration-
ale to find standing in Clayworth. There, several phar-
macies sued pharmaceutical manufacturers, alleging that
the manufacturers had engaged in price fixing. Clay-
worth, 233 P.3d at 1070. As a result of this price-fixing,
the pharmacies had paid manufacturers an artificially
high price for the drugs and sought restitution and in-
junctive relief under the UCL. Id. at 1070-71. The court
held that the pharmacies had standing because they “lost
money or property[, i.e., the overcharges the pharmacies
paid,] as a result of the defendant[s’] unfair business
practices[, i.e. the price-fixing],” which satisfied the re-
quirements of section 17204. Id. at 1087 (citation omit-
ted). The court recognized that “section 17204 requires
only that a party have ‘lost money or property.’” Id. at
1087 (footnote omitted). “That a party may ultimately be
unable to prove a right to damages (or, here, restitution)
does not demonstrate that it lacks standing to argue for
its entitlement to them.” Id. (citations omitted).
Here, Allergan has plainly alleged an economic injury
that was the result of an unfair business practice. The
unfair competition that Allergan alleges involves the
defendants’ manufacture, marketing and/or sale of hair
and eyelash growth products without a prescription,
federal or state approval, and proper labeling in violation
of federal and California laws. Allergan’s First Am.
Compl. 9-14. As a result of these acts, Allergan alleges
that it has “lost sales, revenue, market share, and asset
value.” Id. at 14. Allergan’s complaint sufficiently alleges
an injury that was caused by the defendants’ unfair
business practices. Under Kwikset, this satisfies the
requirements of section 17204, and therefore Allergan has
standing to pursue its claim for relief under the UCL. See
Kwikset, 246 P.3d at 894-95; Clayworth, 233 P.3d at 1087.
ALLERGAN v. ATHENA COSMETICS 12
C.
The defendants, however, maintain that Allergan
does not have standing because it fails to satisfy the so-
called “business dealings requirement” of section 17204.
One purpose of Proposition 64 was to eliminate lawsuits
that attorneys filed “for clients who have not used the
defendant’s product or service, viewed the defendant's
advertising, or had any other business dealing with the
defendant.” Cal. Prop. 64 § (1)(b)(3). The defendants
argued that this purpose of Proposition 64 limited stand-
ing under section 17204 to plaintiffs that had direct
business dealings with the defendant. Oral Arg. at 34:26-
34:50, available at http://www.cafc.uscourts.gov/oral-
argument-recordings/2010-1394/all.
Proposition 64 did not add a “business dealings re-
quirement” to standing under section 17204. The only
amendment Proposition 64 made to section 17204 re-
quired that a private person bringing an action pursuant
to the UCL must have “suffered injury in fact and . . . lost
money or property as a result of such unfair competition.”
Cal. Prop. 64 § 3. Reading this amendment to encompass
a business dealings requirement would contradict the
plain language of the statute and improperly elevate one
purpose of Proposition 64 over the language of the stat-
ute. See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328,
337 (1994) (“[I]t is the statute, and not the [voter’s find-
ings], which is the authoritative expression of the law . . .
.”).
The defendants also argued that Kwikset approved of
the business dealings requirement. Oral Arg. at 30:00-
31:00, available at http://www.cafc.uscourts.gov/oral-
argument-recordings/2010-1394/all. The crux of defen-
dants’ argument is the introduction of Kwikset, which
states that the purpose of Proposition 64 was to “elimi-
13 ALLERGAN v. ATHENA COSMETICS
nate standing for those who have not engaged in any
business dealings with would-be defendants . . . .” 246
P.3d at 881. This argument disregards the focus of Kwik-
set, which held that the only requirements to establish
standing under section 17204 are that (1) the plaintiff
suffered an injury in fact from the loss of money or prop-
erty; and (2) that this injury was caused by the defen-
dant’s unfair business practice. Id. at 885.
Moreover, the defendants’ argument ignores that
there are “innumerable ways” to show economic injury
from unfair competition and that the Kwikset court did
not “supply an exhaustive list of ways in which unfair
competition may cause economic harm.” Id. at 886.
While a direct business dealing is certainly one way in
which a plaintiff could be harmed, the California courts
have also recognized claims under the UCL where a direct
business dealing was lacking. See, e.g., Overstock.com,
Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 716
(Cal. Ct. App. 2007) (finding standing under section 17204
where plaintiff had plead that defendant’s unfair business
practices—intentional dissemination of false negative
reports—had “result[ed] in diminution in value of [plain-
tiff’s] assets and decline in its market capitalization and
other vested interests”). Thus, standing under section
17204 is not restricted by a direct business dealings
requirement. The only standing requirements under
17204 are those in the language of the statute and, as
explained in I.B., Allergan has satisfied those require-
ments.
CONCLUSION
For the foregoing reasons, we reverse the decision of
the district court and remand for further proceedings
consistent with this opinion.
REVERSED AND REMANDED
ALLERGAN v. ATHENA COSMETICS 14
COSTS
No costs.