We can’t say much about the Seroquel order (with the somewhat unwieldy full caption, Pennsylvania Employees Benefit Trust Fund v. Astrazeneca Pharmaceuticals LP), because of Bexis’ firm’s involvement in the litigation (although not this aspect). But there's one aspect of the opinion having nothing whatever to do with anything related to Seroquel that caught our eye.
That’s the way that the court handled a common trick that pleaders use when trying to blur and fuzz up allegations. We're talking about the little phrase “and/or.” Heck, we’ve even done it ourselves on occasion. And the other side does it all the time in cases brought against our clients.
Judge Conway said “not so fast – not after Iqbal and Twombly.
Here’s what happened. The legal issue in Pennsylvania Employees was whether certain statements became part of the “benefit of the bargain” for purposes of express warranty. In a nutshell, except in really unusual situations, a plaintiff has to be aware of the claimed express warranty at the time of sale in order to claim benefit from it. The allegation that the plaintiffs claimed established this element was: “[t]hrough its labeling, as well as its sales and marketing practices and documents given or shown to physicians treating [plaintiff’s] participants and/or [plaintiff] itself.” Slip op. at 5.
The court begged to differ. The allegations “of direct contact with Defendant are vaguely stated.” Id.
Plaintiff indicates that AstraZeneca’s marketing materials and Seroquel labeling were “given or shown to physicians treating [plaintiff’s] participants and/or [plaintiff] itself.” Such equivocal allegations suggest that [plaintiff] itself is unsure whether it received any direct marketing information from [defendant] regarding uses of [the drug] that were unapproved by the FDA.
Slip op. at 5-6 (emphasis original). Because of plaintiffs' weasly use of “and/or,” “the Court need not credit Plaintiff’s bald allegations of any direct communication of express warranties from Defendant for purposes of the motion to dismiss.” Slip op. at 6.
Is Iqbal/Twombly the beginning of the end for the venerable “and/or”? We hadn’t considered this particular twist before, so we decided to take a look. It seems that on Westlaw as of this moment there are 168 cases where the term “and/or” appears in the same paragraph as the names of one or the other of the two leading Supreme Court cases (we’re thankful they’re not named something like Smith v. Jones). That would appear to be a good – although not foolproof – place to look. It’s a large enough sample that, if something’s up with “and/or,” we should find it.
Initially, we note that “and/or” shows up in both the Twombly and Iqbal decisions themselves. The discussions in those cases, however, don’t focus specifically on deficiencies of “and/or” the way the Seroquel opinion does. So we have to look to the lower courts.
The first place we look, of course, is in drug/device product liability litigation. That's what we're most interested in.
We think that, although less explicit than the Pennsylvania Employees opinion, use of “and/or” contributed at least partially to the Twombly-based dismissal of RICO claims brought by TPPs in In re Actimmune Marketing Litigation, 614 F. Supp.2d 1037 (N.D. Cal. 2009). The operative allegation was that “tens of thousands of consumers and/or [TPPs] paid for [drug] prescriptions needlessly.” Id. at 1051. While not focusing as explicitly on “and/or,” the court in Actimmune found that allegation insufficient because it did not distinguish between the various persons (which is what the “and/or” smudged up) who allegedly paid too much:
Plaintiffs need to allege what specific information the individual plaintiffs or their physicians had about the drug, the extent to which they relied upon that information, and that the information relied upon was false, misleading or otherwise fraudulent. Plaintiffs also need to allege when the drug was prescribed, purchased and administered, and whether these actions would not have been taken if not for the concealment/misrepresentations of facts.
Id. at 1052. We wouldn’t base a motion solely on Actimmune, but with Pennsylvania Employees as the lead case, Actimmune is useful supporting precedent.
Another candidate for best supporting actor in this area is In re Schering-Plough Corp. Intron/Temodar Consumer Class Action Litigation, 2009 WL 2043604 (D.N.J. July 10, 2009), which we’ve already generally discussed, here. The “and/or” aspect of Intron is at *12-13, where the statements that certain drugs were “not FDA-approved and/or effective” or alternatively were “off-label and/or not effective” fell under Iqbal/Twombly as insufficient averments specifically that the drugs in question were “ineffective”:
Plaintiffs’ allegations of insufficient evidence and lack of FDA approval are not adequate to plead RICO injury because they fail to assert that the Subject Drugs were ineffective, unsafe, or somehow worth less than what Plaintiffs paid for the drugs. Instead, Plaintiffs have merely alleged that the Subject Drugs were not FDA approved for certain conditions or that the relative effectiveness of the Subject Drugs had not been proven through conclusive evidence.
Id. at *13. As in Actimmune, the “and/or” allegations in Intron directly contributed to the pleading deficit that resulted in dismissal.
There is more outside the drug/device area. In Gregory v. Dillard’s, Inc., 565 F.3d 464 (8th Cir. 2009) (en banc), the court says this just before getting into why the complaint is insufficiently pleaded under Iqbal/Twombly:
Because this section refers to all plaintiffs and uses the “and/or” formulation, it does not connect any particular plaintiff to any particular allegation. A section of the complaint asserting “class action allegations” similarly uses “and/or” within a series of allegations and refers to “one or more” actions taken by [defendant] without specifying which action or actions allegedly apply to which plaintiff or plaintiffs.
Id. at 473 n.9 (emphasis added). That first part is a very useful quote for challenging an “and/or” pleading under Iqbal/Twombly. And that the decision is by a court of appeals sitting en banc doesn't hurt either.
A couple of district courts have done essentially the same thing. In J & J Sports Productions, Inc. v. Torres, 2009 WL 1774268, at *3 (M.D. Fla. June 22, 2009), the court found an Iqbal violation “due to three uses of 'and/or' in one sentence,” which made violative conduct “only one of several possibilities.” Another specific condemnation of “and/or” is in Graco, Inc. v. PMC Global, Inc., 2009 WL 904010, *29 n.25 (D.N.J. March 31, 2009), where use of the phrase to list alleged participating defendants “fail[ed] to allege with specificity that any other conspirator was involved.”
On the other hand, Landavazo v. Toro Co., 301 Fed. Appx. 333, 335 (5th Cir. 2008), labels a sentence containing two “and/ors” “merely a legal conclusion. . .not enough to raise his right to relief above the speculative level,” but we’re not 100% sure that the use of “and/or” was the specific culprit. The same is true of Willey v. J.P. Morgan Chase, N.A., 2009 WL 1938987, at *4 (S.D.N.Y. July 7, 2009), describing the phrase “deliberately and/or recklessly” as a mere “formulaic recitation.” In both cases we can’t be sure whether the courts focused on the adjectives or the connector.
But there are other cases that, from their context, probably include the use of “and/or” as a basis for Rule 12 dismissals under Iqbal/Twombly: Anyone seeking to challenge “and/or” allegations under Rule 12 should look closely at: Bergdoll v. City of York, 2009 WL 25093, at *4 (M.D. Pa. Jan. 5, 2009); Novae Corporate Underwriting Ltd. v. Atlantic Mutual Insurance Co., 556 F. Supp.2d 489, 497 (E.D. Pa. 2008); In re MIPS Technologies, Inc., Derivative Litigation, 2008 WL 3823726, at *6 (N.D. Cal. August 13, 2008); and West v. Ortiz, 2008 WL 544735, at *11 (D. Colo. Feb. 26, 2008). In each of these cases the vagueness dismissals appear to include the uncertainty introduced by the use of “and/or” in the relevant pleadings.
So it may well be – at least in federal court – that “and/or” is on the verge of ending a rather long run of making pleadings difficult or impossible to understand.
It’s about time.