In re: Allergan Erisa v.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2729
_____________
In re: ALLERGAN ERISA LITIGATION
ANDREW J. ORMOND, on behalf of the Allergan, Inc.
Savings and Investment Plan, the Actavis, Inc. 401(k) Plan,
himself, and a class consisting of similarly situated
participants of the Plan; JACK XIE,
Appellants
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 2:17-cv-01554 & 2:17-cv-05070)
District Judge: Honorable Susan D. Wigenton
_______________
Argued
May 19, 2020
Before: JORDAN, BIBAS, and NYGAARD, Circuit
Judges.
(Filed: September 18, 2020)
_______________
Jacob H. Zamansky
Samuel E. Bonderoff [ARGUED]
Zamansky, LLC
50 Broadway – 32nd Floor
New York, NY 10004
Gary S. Graifman
Kantrowitz Goldhamer & Graifman
210 Summit Avenue
Montvale, NJ 07645
Michael J. Klein
Abraham Fruchter & Twersky
One Penn Plaza – Suite 2805
New York, NY 10119
Mark Levine
324 Third Avenue
Pelham, NY 10803
Patrick K. Slyne
Stull Stull & Brody
6 East 45th Street
New York, NY 10017
Counsel for Appellants
Anjuli M. Cargain
Robert D. Eassa
Paul J. Killion
Duane Morris
One Market Plaza
Spear Tower, Suite 2200
San Francisco, CA 94105
2
Joseph F. Falgiani
Joseph G. Harraka, Jr. [ARGUED]
David G. Tomeo
Robert D. Towry
Becker, LLC
354 Eisenhower Parkway
Plaza II, Suite 1500
Livingston, NJ 07039
Counsel for Appellee
_______________
OPINION
_______________
JORDAN, Circuit Judge.
In this appeal from the dismissal of a putative class
action, we are asked to decide whether plaintiffs Andrew J.
Ormond and Jack Xie, former employees of Allergan plc
(“Allergan,” or the “Company”) and participants in the
Company’s employee stock ownership plan (“ESOP”), have
plausibly alleged that the defendants breached certain fiduciary
duties under the Employee Retirement Income Security Act of
1974 (“ERISA”).1 According to the plaintiffs, the defendants,
who are numerous individuals and entities responsible for
1
The named plaintiffs brought suit individually,
derivatively on behalf of the Plans (as defined below), and as
representatives of a purported class of similarly-situated Plan
participants. We refer to these constituencies collectively as
“the plaintiffs.”
3
administering or supervising the Company’s benefit plans,2
knew or should have known that the Company’s stock price
was artificially inflated as a result of an illegal price-fixing
conspiracy, yet they took no action to prevent the plaintiffs
from acquiring Allergan stock at falsely inflated prices.
Having considered the complaint, we agree with the
District Court that, even when viewed in the light most
favorable to the plaintiffs, the well-pled factual allegations fail
to support a plausible inference that the Company conspired
with competitors to fix prices. Because all of the plaintiffs’
causes of action ultimately rest on the premise that the
defendants knew or should have known about that supposed
illegal conduct, the absence of allegations sufficient to support
the existence of it is fatal to each of their claims. Furthermore,
we discern no abuse of discretion in the District Court’s
decision to deny the plaintiffs leave to amend the complaint.
The plaintiffs’ perfunctory request in that regard not only failed
to include a proposed amended complaint but also lacked any
description of or explanation about the modifications they
might make. Accordingly, we will affirm.
2
The defendants are comprised of: Allergan; its
Employee Benefits Plan, Oversight, and Investment
Committees (and the individual members of those committees,
both known and unknown); the individual members of the
Company’s Board of Directors (the “Director Defendants”);
and any other known or unknown committees or individuals
who served as Plan fiduciaries from October 29, 2013 through
November 2, 2016 (the “Class Period”).
4
I. BACKGROUND
A. Factual Background
The plaintiffs are participants in the Allergan, Inc.
Savings and Investment Plan (the “Plan,” and, together with its
predecessor plans, the “Plans”),3 which includes various
investment options for its participants. One of those is an
ESOP feature, through which participants can buy Allergan
stock. According to the plaintiffs, the various defendants in
this dispute were Plan fiduciaries within the meaning of ERISA
and owed them commensurate duties under that statute.
The central tenet of the plaintiffs’ complaint is that,
although the public was unaware, at least some of the
defendants knew or should have known that, prior to the
divestiture of its generic-drug business,4 Allergan had
3
The Plan, which traces its origins back to 1988, exists
in its current form following a series of name changes,
corporate acquisitions, and other modifications that are not
relevant to the disposition of this appeal.
4
Allergan completed the sales of its “Global Generics”
and “ANDA Distribution” businesses to Teva Pharmaceuticals
on August 2, 2016 and October 3, 2016, respectively. (App.
70-71.) The plaintiffs do not allege that Allergan engaged in
price fixing subsequent to the divestitures. To the extent it is
relevant, and no party argues that it is, the slight discrepancy
between the date of Allergan’s divestitures and the end of the
Class Period appears to be attributable to November 2, 2016
being the last date that Allergan publicly announced quarterly
5
conspired with other generic-drug manufacturers to fix prices,
thereby artificially boosting its financial performance, and, in
turn, its stock price.5 As support for their price-fixing theory,
the plaintiffs allege that, during October 2014 to June 2015, a
time when generic-drug prices in general were surging,
Allergan received inquiries both from members of Congress
and the Antitrust Division of the Department of Justice
(“DOJ”) seeking information about large price increases in
certain of the generic drugs it manufactured. According to
news reports cited by the plaintiffs, the DOJ charged some
unidentified person or entity involved in the generic-drug
industry with price-fixing, as part of “a sweeping criminal
investigation into suspected price collusion,” and the DOJ was
“expected to remain active in pursuing generic-drug price
fixing[.]” (App. 73.) The plaintiffs do not allege that Allergan
was ever charged in connection with the DOJ investigation.
Nevertheless, they say that the defendants’ failure to remove
Allergan stock as an investment option from the Plan, or
otherwise take any action to protect the Plan participants from
financial and operating results reflecting the operations of the
divested generics businesses.
5
The plaintiffs also contend that the Company lacked
effective internal controls over its financial reporting systems.
That contention appears simply to be support for their
overarching argument that Allergan’s financials did not reflect
the effects of the alleged price-fixing conspiracy. Indeed, the
complaint is devoid of any well-pled allegations that could,
premised only on the Company’s supposed lack of internal
controls, state a distinct claim for breach of fiduciary duties
under ERISA.
6
Allergan’s inflated stock prices, violated fiduciary duties owed
under ERISA.
B. Procedural Background
This case originated as two separate actions filed by Xie
and Ormond, Xie’s in the United States District Court for the
Central District of California, and Ormond’s in the District
Court here. Xie agreed to transfer his case, and, shortly
thereafter, the actions were consolidated in the District Court
under the caption “In re Allergan ERISA Litigation.” (App. 8.)
Following consolidation, the plaintiffs filed a three-count
amended complaint – the operative complaint here – alleging:
a failure to prudently manage the Plans’ assets, in violation of
ERISA §§ 404(a)(1)(B) and 405 (Count One); breach of the
duty of loyalty, in violation of ERISA §§ 404(a)(1)(A) and 405
(Count Two); and failure to adequately monitor other
fiduciaries and provide accurate information, in violation of
ERISA § 404 (Count Three).
The defendants moved to dismiss the complaint in its
entirety, which was granted. Regarding Count One, the
District Court held that it was insufficiently pled for two
independent reasons. First, according to the Court, the
plaintiffs failed to “set forth sufficient facts to establish” or
even imply that the defendants had “engaged in collusive
and/or fraudulent activity during the Class Period such that
they could have insider information to that effect.” (App. 13.)
Second, even if the defendants possessed any such insider
information, the Court determined that the plaintiffs still could
not state a claim because, under Fifth Third Bancorp v.
7
Dudenhoeffer, 573 U.S. 409 (2014),6 a prudent fiduciary could
have concluded that any of the plaintiffs’ proposed alternatives
to doing nothing about their supposed knowledge of the alleged
price-fixing would do more harm than good to the Plan
participants.
The District Court then proceeded to dismiss Count
Two – the duty of loyalty claim – as being merely “derivative
of [the] insufficiently pled duty of prudence claim[]” in Count
One (App. 17-18.) And, absent any well-pled claim for a
breach of an ERISA duty, the Court concluded that Count
Three – the duty to monitor claim – necessarily failed too.
Finally, the District Court denied the plaintiffs’ request for
leave to amend their complaint because “[t]here [wa]s nothing
to suggest that providing another opportunity to amend the
pleadings would be beneficial or result in a different outcome.”
(App. 19 n.11.)
The plaintiffs timely appealed. After the briefing for
this appeal was completed, but shortly before oral argument,
6
Dudenhoeffer was a watershed decision by the
Supreme Court in which it rejected the consensus among courts
of appeals that ESOP fiduciaries are entitled to a “presumption
of prudence.” Id. at 412. Instead, the Court held that, “[t]o
state a claim for breach of the duty of prudence on the basis of
inside information, a plaintiff must plausibly allege an
alternative action that the defendant could have taken that
would have been consistent with the securities laws and that a
prudent fiduciary in the same circumstances would not have
viewed as more likely to harm the fund than to help it.” Id. at
428.
8
the Supreme Court granted certiorari review of the Second
Circuit’s decision in Jander v. Retirement Plans Committee of
IBM, 910 F.3d 620 (2d Cir. 2018), another case involving
ERISA’s duty of prudence in the ESOP context. Because the
Supreme Court’s decision in Jander had the potential to clarify
or modify Dudenhoeffer, the parties jointly requested that we
hold this matter curia advisari vult, pending the Supreme
Court’s decision in that case. We did so. When the Supreme
Court issued its decision in Jander earlier this year, this matter
was reinstated as an active appeal.7
II. DISCUSSION8
A. Plaintiffs’ ERISA Claims9
The “thrust” of the plaintiffs’ allegations in Counts One
and Two of the complaint is that the “[d]efendants
7
The Supreme Court elected not to reach the merits of
the dispute in Jander because the parties raised new arguments
that were not presented to the Second Circuit. Ret. Plans
Comm. of IBM v. Jander, 140 S. Ct. 592, 594–95 (2020).
Instead, the Court vacated the Second Circuit’s opinion and
remanded the matter for the Second Circuit to decide in the first
instance whether it wished to consider those new arguments.
Id. at 595. On remand, the Second Circuit declined to consider
the new arguments and reinstated its original decision. Jander
v. Ret. Plans Comm. of IBM, 962 F.3d 85, 86 (2d Cir. 2020).
8
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
9
“We review de novo a district court’s grant of a
9
[imprudently and disloyally] allowed the investment of the
Plans’ assets in Allergan Stock throughout the Class Period
despite the fact that [d]efendants knew or should have known
that that investment was imprudent[.]” (App. 25.) According
to the plaintiffs, Allergan stock was a poor investment during
the Class Period because “Allergan and several of its
pharmaceutical industry peers colluded to fix generic-drug
prices in violation of federal antitrust laws, creating excess
revenues as a result of anticompetitive behaviors and putting
Allergan at risk of criminal prosecution and civil and criminal
penalties[.]” (App. 71.) Moreover, the plaintiffs say, “[the
d]efendants, as Allergan insiders, knew or should have known
that the Company was conspiring to raise its profits in violation
motion to dismiss for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6).” Foglia v. Renal Ventures Mgmt.,
LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014) (citation omitted).
In conducting such a review, “[w]e take as true all the factual
allegations of the … Complaint and the reasonable inferences
that can be drawn from them, but we disregard legal
conclusions and recitals of the elements of a cause of action,
supported by mere conclusory statements. To survive a motion
to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its
face.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d
Cir. 2010) (internal quotation marks and citations omitted). A
claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
(internal quotation marks and citation omitted). “[W]e may
affirm a judgment of a lower court for any reason supported by
the record ….” In re Ross, 858 F.3d 779, 786 (3d Cir. 2017)
(citation omitted).
10
of antitrust laws.” (App. 74.) Thus, the threshold issue in
analyzing the ERISA claims here is whether the plaintiffs have
plausibly alleged any facts to back up their assertion that
Allergan participated in an unlawful price-fixing conspiracy.
Absent such allegations, there was nothing that the defendants
knew or should have known that ought to have prompted them
to protect the putative class from acquiring Allergan stock. As
the District Court correctly held, the plaintiffs’ complaint is
deficient at this initial step.
The factual allegations that supposedly demonstrate that
Allergan was involved in such a conspiracy are scant and can
be summarized as follows: (i) the market for generic drugs is
highly competitive; (ii) the prices for several generic drugs
increased markedly over a brief period of time; (iii) certain
members of Congress sought to investigate the increases; (iv)
in connection with that investigation, Allergan was asked to
provide information about price increases for certain generic
drugs it manufactures; (v) several months later, Allergan
received a subpoena from the DOJ requesting information
about the marketing and pricing of some of its generic products
and communications with competitors regarding the same; and
(vi) over a year after receiving the subpoena, the DOJ brought
price-fixing charges against at least one unnamed party – but
not Allergan – related to generic drugs, and the DOJ was
“expected to remain active in pursuing generic-drug price
fixing[.]” (App. 73.)
Considered holistically, and taking all reasonable
inferences in the plaintiffs’ favor, those allegations fail to
support a plausible inference that Allergan conspired with
other generic-drug manufacturers to fix prices. At most, the
plaintiffs’ complaint can be described as alleging parallel price
11
increases among generic-drug manufacturers, including
Allergan. But, despite the plaintiffs’ insistence to the contrary,
the Supreme Court has been clear “that an allegation of parallel
conduct and a bare assertion of conspiracy will not suffice.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Rather,
because “parallel conduct[, without more,] does not suggest
conspiracy,” allegations of parallel conduct “must be placed in
a context that raises a suggestion of a preceding agreement, not
merely parallel conduct that could just as well be independent
action.” Id. at 557; see also In re Chocolate Confectionary
Antitrust Litig., 801 F.3d 383, 398 (3d Cir. 2015) (“[E]vidence
of conscious parallelism cannot alone create a reasonable
inference of a conspiracy. To move the ball across the goal
line, a plaintiff must also show that certain plus factors are
present. Plus factors are ‘proxies for direct evidence’ because
they tend[ ] to ensure that courts punish concerted action—an
actual agreement—instead of the unilateral, independent
conduct of competitors.” (second alteration in original)
(internal quotation marks and citations omitted)); Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 226 (3d Cir. 2011) (“The
law is well-established that evidence of parallel conduct by
alleged co-conspirators is not sufficient to show an
agreement.” (internal quotation marks and citations omitted)).
The plaintiffs have not placed their allegations in any
such context. That Allergan received requests for information
from Congress and the DOJ as part of broad investigations,
requests the Company apparently complied with, does not on
its own suggest the existence of an agreement among Allergan
and its competitors. That is particularly so where, as here, there
are no well-pled allegations either of communications or
interactions among Allergan and its competitors, or even of
12
opportunities for such communications or interactions. Nor are
there allegations that the information gathering exercises the
Company was subjected to resulted in any charge of
wrongdoing against either Allergan or any of its competitors
with respect to a product that Allergan manufactures. 10 The
plaintiffs have thus failed to plausibly allege Allergan’s
participation in an illegal price-fixing conspiracy. Because the
defendants could not have had insider information about a
price-fixing conspiracy that did not exist, or at least the
existence of which was not adequately pled, it follows that the
plaintiffs’ ERISA claims, each of which is predicated on the
defendants’ knowledge of that purported conspiracy, must
fail.11
10
The complaint is devoid of any well-pled allegations
that, during the approximately 28 months that passed between
Allergan’s receipt of the DOJ’s subpoena and the filing of the
operative complaint, Allergan was subject to any further
scrutiny with respect to price-fixing, including further requests
for information.
11
Although not directly dependent on the defendants’
knowledge of a price-fixing conspiracy, the plaintiffs’ duty to
monitor claim is indirectly based on the defendants having that
knowledge because “whether [p]laintiffs’ monitoring claim
survives depends on whether their underlying breach of
fiduciary duty [of prudence and loyalty] claims survive.”
(Appellants’ Reply Br. at 27 n.18.) Rinehart v. Lehman Bros.
Holdings Inc., 817 F.3d 56, 68 (2d Cir. 2016) (“Plaintiffs
cannot maintain a claim for breach of the duty to monitor ...
absent an underlying breach of the duties imposed under
ERISA[.]” (alteration in original) (citation omitted)).
13
The plaintiffs’ arguments to the contrary are not
persuasive. First, they criticize the District Court’s holding
that the allegations in the complaint “do not rise above the
speculative level of misconduct.” (Appellants’ Opening Br. at
15 (quoting (App. 13)).) As they see it, they specifically
alleged an “unconscionable increase in price [for a drug
Allergan manufactures,]” and that increase “is well beyond
speculation; it is fact.” (Appellants’ Opening Br. at 15.) But
that criticism ignores the central thesis of their own allegations.
The plaintiffs do not contend that an increase in generic-drug
prices, even a dramatic one, is itself a legal wrong that should
have prompted the defendants to prevent the putative class
from acquiring Allergan stock. Rather, they theorize that the
price increase in this case constituted misconduct because it
was attributable to an unlawful price-fixing conspiracy. As
already discussed, however, even parallel price increases
among competitors, without more, do not by themselves
indicate the existence of an illegal conspiracy. Accordingly,
while the plaintiffs have alleged that the price for at least one
drug that Allergan manufactured increased significantly, that
fact does “not nudge[] their claims [of misconduct in the form
of illegal price-fixing] across the line from conceivable to
plausible[.]” Twombly, 550 U.S. at 570.
The plaintiffs next argue that the District Court ignored
their “well-pled and plausible allegations that ‘(i) Allergan and
several of its pharmaceutical industry peers colluded to fix
generic drug prices in violation of federal antitrust laws …
putting Allergan at risk of criminal prosecution and civil and
criminal penalties; [and] (ii) the DOJ investigation and the
underlying conduct could result in criminal charges[.]’”
(Appellants’ Opening Br. at 16 (quoting (App. 71)).) This
argument fails because the allegations referred to are not well-
14
pled facts but are instead conclusions entitled to no deference.
See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“[A] court
considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth. While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”) The District
Court did not err in refusing to credit such assertions absent
supporting factual allegations.
Third, the plaintiffs say that the District Court was
wrong to dismiss their complaint on the basis that they had “not
set forth sufficient facts to establish or even [imply] that
[d]efendants engaged in collusive and/or fraudulent activity
during the Class Period such that they could have insider
information to that effect.” (App. 13.) According to the
plaintiffs, “nothing in ERISA suggests that [p]laintiff[s] must
prove that collusive or fraudulent activity occurred; ERISA
indisputably does not require allegations of scienter.”
(Appellants’ Opening Br. at 17.) But they again ignore the
premise of their own complaint. Regardless of whether ERISA
requires proof of “collusive or fraudulent activity,” the
plaintiffs specifically chose a theory of liability predicated on
Allergan’s participation in an unlawful price-fixing
conspiracy. In advancing that theory, they assumed the burden
of plausibly alleging both the existence of a price-fixing
conspiracy and Allergan’s participation in it. The plaintiffs
identify no other insider information that the defendants should
have acted on with respect to their administration of the Plans.
Moreover, it is simply not accurate that the District Court either
explicitly or implicitly analyzed the price-fixing allegations
under some heightened pleading standard. The plaintiffs’
claims were not dismissed because of a failure to adequately
15
allege scienter. Rather, the claims were rejected as insufficient
because the plaintiffs’ antitrust allegations fall far short of
plausibly suggesting the existence of a price-fixing conspiracy
to begin with, as judged under ordinary pleading standards.
The District Court was correct in saying so.
Finally, citing Braden v. Wal-Mart Stores, Inc., 588
F.3d 585 (8th Cir. 2009), the plaintiffs contend that “[i]t could
not be expected that at this stage [they] would have more
information regarding what [d]efendants knew about
Allergan’s concealed impropriety.” (Appellants’ Opening Br.
at 18.) But this contention too misses the mark. The deficiency
in the plaintiffs’ pleading was the lack of factual allegations
plausibly suggesting Allergan actually engaged in any
misdeeds (i.e., there was nothing for the defendants to know),
not that the plaintiffs insufficiently alleged the defendants’
knowledge of the supposed misdeeds.
In short, the District Court properly concluded that the
plaintiffs failed to adequately allege the existence of the price-
fixing conspiracy that underlies the complained-of breaches of
fiduciary duty. That failure defeats each of the plaintiffs’
claims.12
12
Beyond that failure, the District Court also held that
the plaintiffs failed to adequately allege that either Allergan or
the Director Defendants were fiduciaries of the Plans, and
dismissed all claims against them on that basis. The plaintiffs
expressly state that they “do not contest” the Court’s dismissal
of Allergan, (Appellants’ Opening Br. at 6 n.1,) but do not
address the Director Defendants’ dismissal on that basis. By
that omission, the plaintiffs have forfeited their right to
challenge that aspect of the District Court’s decision on appeal.
16
B. Leave to Amend13
The plaintiffs also argue that the District Court abused
its discretion by denying them leave to file an amended
complaint and dismissing their claims with prejudice. More
specifically, they say that the District Court was wrong to view
their complaint as the fourth attempt to state a claim and that
Accordingly, we will also affirm Allergan’s and the Director
Defendants’ dismissal with prejudice, as well as the dismissal
of Count Three, which was pled only against those defendants,
on the ground that none of those defendants are Plan fiduciaries
under ERISA.
13
“[W]e review a Rule 15 motion for leave to amend a
complaint for abuse of discretion[.]” United States ex rel.
Customs Fraud Investigations, LLC. v. Victaulic Co., 839 F.3d
242, 248 (3d Cir. 2016). “We are mindful that the pleading
philosophy of the Rules counsels in favor of liberally
permitting amendments to a complaint.” CMR D.N. Corp. v.
City of Philadelphia, 703 F.3d 612, 629 (3d Cir. 2013) (citation
omitted). But, “[s]tanding in tension with the long-standing
amendment rule is our longer-standing rule that, to request
leave to amend a complaint, the plaintiff must submit a draft
amended complaint to the court so that it can determine
whether amendment would be futile.” Fletcher-Harlee Corp.
v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.
2007) (citation omitted). Ultimately, a motion to amend is
committed to the “sound discretion of the district court.”
Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 272
(3d Cir. 2001).
17
they “should not be precluded from the possibility of being
afforded at least one opportunity to cure the pleading
deficiencies outlined by the District Court in its opinion.”
(Appellants’ Opening Br. at 50.) We agree that the complaint
at issue should not have been viewed as the “fourth” attempt at
presenting a viable pleading.14 But the Court did not actually
deny leave to amend on that basis. It articulated a different
reason for denying leave, namely that the plaintiffs had failed
to identify what modifications they proposed to make to their
complaint. That was true. Despite the flaws pointed out by the
defendants in the motion to dismiss and associated briefing, the
plaintiffs gave no hint as to how they would further amend their
complaint.15 In light of that, we cannot say the District Court
abused its discretion in denying leave to amend.
The District Court analyzed the plaintiffs’ request for
leave to amend as follows:
14
The plaintiffs’ previous three complaints were a
function of this case originating as two separate lawsuits that
were eventually consolidated, not incremental attempts to
resolve identified deficiencies. None of the three prior
complaints were subject to challenge by a dispositive motion.
15
The plaintiffs’ request merely consisted of statements
that “[m]ost courts navigating the post-Dudenhoeffer world
have been relatively lenient about allowing plaintiffs to file
amended complaints where they have fallen short of satisfying
Dudenhoeffer’s difficult pleading standard[,]” and “[i]n this
Court, dismissal is frequently granted without prejudice to the
filing of an amended complaint.” (App. 138.)
18
Although [p]laintiffs have requested to amend
their Consolidated Complaint if [d]efendants’
motion is granted, a review of this matter’s
procedural history shows that, collectively,
[p]laintiffs have now filed four complaints.
There is nothing to suggest that providing
another opportunity to amend the pleadings
would be beneficial or result in a different
outcome. See, e.g., Graham v. Fearon, 721 F.
App’x 429, 439 (6th Cir. 2018) (“[B]ecause
Plaintiffs’ request was perfunctory and did not
point to any additional factual allegations that
would cure the complaint, the district court did
not abuse its discretion in denying a motion to
amend.”); In re Tribune Co. Fraudulent
Conveyance Litig., No. 12- 2652, 2017 WL
82391, at *20 (S.D.N.Y. Jan. 6, 2017) (denying
leave to amend where the request was cursory
and failed to indicate how the complaint’s
defects would be cured).
(App. 19 n.11.)
Although the Court noted the number of complaints
filed in this case, its ratio decidendi for denying leave was the
plaintiffs’ failure to explain how they proposed to further
revise their complaint. Again, the record supports that
reasoning, and the legal authorities relied on by the Court
particularly highlight its focus on the inadequacy of the request
for leave to amend.
To the extent the plaintiffs argue that they should be
permitted to amend because other antitrust and securities
19
litigation cases against Allergan, which also are premised on
the Company’s participation in a price-fixing conspiracy, have
survived motions to dismiss, we disagree for two reasons.
First, the complaints in those cases contained far more robust
factual allegations regarding Allergan’s participation in an
unlawful conspiracy. See In re Allergan Generic Drug Pricing
Sec. Litig., No. 2:16-cv-09449-KSH-CLW, 2019 WL
3562134, at *6 (D.N.J. Aug. 6, 2019) (“The complaint alleges
both direct and indirect evidence of an agreement. For
example, plaintiffs point to communications between
executives of different companies regarding price increases, at
least two of whom pleaded guilty to violating antitrust laws.
Plaintiffs also point to various opportunities to collude,
including a host of communications and various trade
association meetings; relevant market conditions and
attributes; and the timing of parallel price increases.”); In re
Generic Pharm. Pricing Antitrust Litig., 338 F. Supp. 3d 404,
420-35 (E.D. Pa. 2018) (detailing extensive allegations
regarding price increases, government investigations, market
conditions, and opportunities to conspire).
Second, and perhaps of greater significance, the
complaints in those cases were available to the plaintiffs before
they filed their opposition to the motion to dismiss in late-
March 2018. So too was the public information that many of
the allegations in those other complaints were derived from,
including, in particular, the widely publicized price-fixing civil
lawsuit commenced by a group of several state attorneys
general against Allergan and other generic-drug
manufacturers. The plaintiffs could have, and should have,
availed themselves of those sources of information, especially
in light of their admitted understanding that those sources were
relevant to their claims. (See App. 23 n.2 (statement in
20
complaint that “[a]ll allegations contained herein are based
upon … the investigation of [p]laintiffs’ counsel. Plaintiffs
through their counsel reviewed, among other things … other
lawsuits against Allergan … [and] public statements and media
reports[.]”).) They didn’t, nor did they refer to them when
asking the District Court to let them amend.
We do not ask district courts to be mind readers but have
instead recognized repeatedly that a district court does not
abuse its discretion by denying leave to amend when the party
seeking leave does not attach a draft amended complaint to its
request.16 E.g., United States ex rel. Zizic v. Q2Administrators,
LLC, 728 F.3d 228, 243 (3d Cir. 2013); DelRio-Mocci v.
Connolly Properties Inc., 672 F.3d 241, 251 (3d Cir. 2012);
Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482
F.3d 247, 252-53 (3d Cir. 2007). The plaintiffs here not only
failed to include a draft complaint with their request for leave,
they failed to say anything at all about how they intended to
amend their pleading.17 Given the complete lack of
information from the plaintiffs to aid the District Court in its
assessment of their request to file another amended complaint,
16
To be clear, however, we are neither adopting nor
endorsing the view that the converse is also true. Said
differently, by recognizing that a district court acts within its
discretion when it denies leave to amend where no proposed
amendment is included in the request we do not mean to imply
that a court necessarily abuses its discretion by allowing a party
to amend without having submitted a proposed amendment.
17
The plaintiffs’ briefing on appeal similarly is devoid
of any explanation as to what additional facts or theories they
would include in an amended pleading.
21
we cannot say that the Court acted outside the bounds of its
sound discretion in denying that request.
III. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s dismissal of this case and the denial of the plaintiffs’
request for leave to amend.
22