a disgorgement claim exists, whether this allegation states an
integrated claim arising from a common right of the class that
can be collectively used to satisfy the $75,000
B. Disgorgement Claim
The court finds that plaintiff's complaint alleges a claim for
disgorgement. Paragraphs 138-139 of the complaint state that "it
would be inequitable for Andrx to be permitted to retain any of
the proceeds of the Hoechst-Andrx Agreement" and that "it would
be inequitable for the Hoechst Defendants to be permitted to
retain any of the plaintiff Class'[s] overpayment for Cardizem
CD." This language, captioned by plaintiff as a claim for "unjust
enrichment," states a colorable claim for the disgorgement of
profits resulting from the overpayments that defendants earned as
the result of their allegedly illegal agreement in restraint of
trade. See In re Corriea, 719 A.2d 1234, 1240 (D.C. 1998)
(holding that "[t]he remedy of disgorgement, much like that of a
constructive trust, is meant `to provide just compensation for
the wrong', not to impose a penalty; it is `given in accordance
with the principles governing equity jurisdiction, not to inflict
punishment but to prevent an unjust enrichment.'" (emphasis
added) (citing Sheldon v. Metro-Goldwyn Pictures Corp.,
309 U.S. 390, 399, 60 S.Ct. 681, 84 L.Ed. 825 (1940))); see also
Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 95
L.Ed.2d 365 (1987) (stating that "[a]n action for disgorgement .
. . is a remedy only for restitution. . . . Restitution is
limited to `restoring the status quo and ordering the return of
that which rightfully belongs'" to the plaintiff). Given
plaintiff's averments of unjust enrichment and plaintiff's
statements that it would be inequitable for defendants to retain
this money — aside from any action at law entitling any
individual plaintiff to their discrete, specific overpayment —
the court reads the complaint to allege a claim for disgorgement.
As discussed below, the language of the complaint, especially as
to defendant Andrx, shows that plaintiff seeks to disgorge a
certain sum of money — the unjust enrichment — because it would
be "inequitable" for defendants to keep this sum.
The court's interpretation of the plain language of the
complaint is further supported by other court's readings of
substantially similar language which led them to the same
conclusion. Three other district courts have been presented with
motions to remand, determined that the presence or absence of a
disgorgement claim was determinative, and found that
substantially similar language in plaintiff's complaint alleged a
disgorgement claim. See Betnor, Inc. v. Hoechst
Aktiengesellschaft, Civ. No. C-98-3609 (MHP), Memorandum and
Order at 10-11 (N.D.Cal. Apr. 14, 1999); Sams v. Hoechst
Aktiengesellschaft, Civ. No. 2:98-348, Order at 3 (E.D.Tenn.
Apr. 9, 1999); Zuccharini v. Hoechst AG, Civ. No.
98-74043(NGE), Transcript of Hearing at 17 (E.D.Mich. Dec. 2,
1998). The court agrees with these assessments and, accordingly,
finds that plaintiff's complaint alleges a claim for
Neither side disputes the general rule that each member of the
plaintiff's class must independently satisfy the jurisdictional
amount-in-controversy requirement to meet the elements of
28 U.S.C. § 1332. See Zahn v. International Paper Co.,
414 U.S. 291, 294-95, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973); Snyder v.
Harris, 394 U.S. 332, 336, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969).
Defendants do not claim that each member of the plaintiff class
independently has sustained greater that $75,000 in damages.
Instead, both sides focus on what has been characterized as an
exception to this general rule. As both Zahn and Snyder
state, the value of the claims of the entire class can be
considered collectively against the statutory threshold when the
members of the class "unite to enforce a single title or right in
which they have a common and undivided interest." Snyder,
394 U.S. at 335, 89 S.Ct. 1053; Zahn, 414 U.S. at 294, 94 S.Ct.
505. In other words, as often stated by other courts, plaintiff's
claims can be aggregated when they make an integrated claim.
See, e.g., Manufacturers Cas. Ins. Co. v. Coker, 219 F.2d 631,
634 (4th Cir. 1955).
Although the case law and commentary on this issue admittedly
show that what is and what is not an aggregable claim is
sometimes less than clear,*fn4 plaintiff's claim for
disgorgement, as described in the complaint, is not within the
zone of doubt. As stated above, plaintiff's complaint claims
that, without reference to any actual damages sustained by any
individual plaintiff, defendants must disgorge the profits
derived from their illegal anticompetitive activities, including
the Hoechst-Andrx Agreement.*fn5 If any given plaintiff does not
collect his, her, or its share, then it does not change the
amount of profits of which defendants must be disgorged. Thus,
according to the complaint, the plaintiff class has a collective
right to a disgorgement in the amount of the unjust enrichment,
and that amount does not depend upon the number of plaintiffs.
This is precisely the type of scenario in which the Court of
Appeals for the Sixth Circuit held that a plaintiff's claims must
be considered integrated and aggregable. In Sellers v.
O'Connell, the court of appeals stated that "[a]n identifying
characteristic of a common and undivided interest is that if one
plaintiff cannot or does not collect his share, the shares of the
remaining plaintiffs are increased." 701 F.2d 575, 579 (6th Cir.
1983). As described above, this is the situation presented by
plaintiff's disgorgement claim. Moreover, based on the plain
language of plaintiff's complaint, the disgorgement remedy would
inure to the benefit of the class rather than vindicate any
alleged violations of individual rights. See Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1359 n. 14 (11th Cir. 1996).
This further supports the conclusion that plaintiff's claim of
disgorgement must be aggregated.
The three other district courts to address this issue in cases
related to the instant matter reached the same conclusion. See
Betnor, Inc. v. Hoechst Aktiengesellschaft, Civ. No. C-98-3609
(MHP), Memorandum and Order at 10-11 (N.D.Cal. Apr. 14, 1999);
Sams v. Hoechst Aktiengesellschaft, Civ. No. 2:98-348, Order at
3 (E.D.Tenn. Apr. 9, 1999); Zuccharini v. Hoechst AG, Civ. No.
98-74043(NGE), Transcript of Hearing at 17 (E.D.Mich. Dec. 2,
1998).*fn6 This conclusion is also consistent with the existing
case law in this circuit. See National Welfare Rights Org. v.
Weinberger, 377 F. Supp. 861, 866 (D.D.C. 1974). In NWRO, Judge
Pratt recited the two tests available when determining whether a
class has an aggregable interest. In the "interest distribution
test," an aggregable claim exists "when the adversary of the
class has no interest in how the claim is to be distributed among
the class members." Id. (citation omitted). This is the same
factor described above from Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1359 n. 14 (11th Cir. 1996),
which, as the court has already explained, supports aggregation
in this case. The second test, the "essential party test," calls
for aggregation "when none of the class members could bring suit
without directly affecting the rights of his co-parties." Id.
(citation omitted). This is the same factor described above from
Sellers v. O'Connell, 701 F.2d 575, 579 (6th Cir. 1983), which,
as described above, also supports aggregation in this case.
The cases cited by plaintiff are not to the contrary. For
example, plaintiff primarily relies upon Gilman v. BHC
Securities, Inc., 104 F.3d 1418 (2d Cir. 1997), to support its
position that it does not seek to enforce any type of collective
right or interest in this lawsuit. In Gilman, the putative
plaintiff class was seeking to recover for certain payments made
to plaintiffs' stock brokers by the executors of the stock
brokers' orders. No one disputed the premise that none of the
individual plaintiffs would satisfy the amount-in-controversy
requirement individually. As in this case, the defendants relied
upon an aggregation theory, arguing that the relevant payments
were put into a common fund and, therefore, gave plaintiffs a
common right or interest in a given res. The Court of Appeals for
the Second Circuit properly rejected this argument, however,
stating that "[t]he only right or title allegedly held by the
[plaintiffs] is the right to sue BHC for the undisclosed
extracontractual benefit that [the defendant stock brokers']
derived from their securities trades; that right is distinct to
each plaintiff, and is based on [the defendant stock brokers']
handling of that person's separate transactions." Id. at 1425.
This distinction, however, is exactly the reason that plaintiff's
argument fails in the case now before this court. Plaintiff's
allegation of disgorgement against Andrx, for example, does not
depend, rely upon, or arise out of the vindication of individual
rights of the putative class members. In the words of the
complaint, disgorgement is appropriate because "[i]t would be
inequitable for Andrx to be permitted to retain any of the
proceeds of the Hoechst-Andrx Agreement." Complaint ¶ 138. This
statement, in the context of the allegations in the complaint,
leads this court to believe that plaintiff, on behalf of the
putative class, seeks to recover the amount that Andrx has been
unjustly enriched, as the caption states, and not the individual
In summary, the case law on point from this circuit
corroborates the conclusion reached by the court based upon the
prevailing law from other jurisdictions. Plaintiff's claim for
disgorgement does not depend upon the vindication of individual
class members' rights, but instead upon the disgorgement of money
alleged to be unlawfully and inequitably held by defendants,
particularly defendant Andrx. Defendants have no interest in how
the claim is to be distributed among the class members because,
if plaintiff was to prevail on its claim as alleged, the number
of other plaintiffs to be paid would not reduce or increase the
amount of money to be disgorged. Plaintiff's claim for
disgorgement must be considered one seeking to recover under a
single collective right in which the putative class has a common
and undivided interest and therefore may be considered
collectively when making the amount-incontroversy
determination. By the complaint's own terms, the illegal
agreement among the defendants includes payments in contravention
of law of at least forty million dollars per year. This agreement
is the primary basis for plaintiff's allegations. Accordingly,
the court finds that the amount-in-controversy exceeds $75,000,
as required by 28 U.S.C. § 1332. Therefore, plaintiff's motion to
remand will be denied.
The court will grant defendant Andrx's motion to stay this case
pending resolution by the Judicial Panel on Multidistrict
Litigation of defendants' motion to consolidate and transfer this
and other related cases. Given the potential for common and
overlapping issues in many of these cases, which is confirmed by
the opinions read by the court from other districts in resolving
the motion to remand, the court finds that such a stay would
further judicial economy and eliminate the potential for
conflicting pretrial rulings were the case ultimately
transferred. Therefore, defendant Andrx's motion for a stay of
proceedings will be granted.
For the reasons stated above, the court HEREBY ORDERS that:
1. Plaintiff's Motion  to Remand for Lack of Subject Matter
Jurisdiction is DENIED.
2. Defendant Andrx Pharmaceuticals, Inc.'s Motion (12) for a
Stay Pending Multidistrict Coordination is GRANTED.
3. This matter is stayed pending resolution of any Motion for
Coordination and Consolidation of Pretrial Proceedings in Related
Actions Pursuant to 28 U.S.C. § 1407 pending before the Judicial
Panel on Multidistrict Litigation.