This matter comes before the court on plaintiffs' motion to remand this matter to the Superior Court of the District of Columbia, where plaintiffs first filed suit. Defendants, having removed the case to federal court, oppose remand. Upon consideration of the brief in support of the motion, defendants' opposition, plaintiffs' reply and defendants' surreply,*fn1 the underlying complaint and the applicable law, the motion to remand is denied.
Robert Williams and Clifford Perry have sued Purdue Pharma Company, Purdue Pharma LP, Purdue Pharma, Inc., Purdue Frederick, P.F. Laboratories, Inc. [collectively "Purdue"], Abbott Laboratories and Abbott Laboratories, Inc. [collectively "Abbott"] for class relief, injunctive relief, refunds, and damages arising from the purchase or receipt of the pain medication OxyContin® ["OxyContin"].*fn2 Messrs. Williams and Perry seek to represent a class defined as "[a]ll persons who purchased or received OxyContin in the District of Columbia by prescription from 1995 to the present." The complaint was first served on Abbott on March 1, 2002, and the defendants timely filed a Notice of Removal, pursuant to 28 U.S.C. §§ 1441, 1442(a) and 1446, on March 21, 2002.
In the complaint, Purdue is alleged to own the patent for OxyContin Tablets and to, inter alia, manufacture, advertise, promote, sell and distribute the drug.*fn3 Abbott allegedly also has been engaged in the manufacture, advertisement, promotion and sale or distribution of OxyContin.*fn4 Plaintiffs contend that the defendants aggressively marketed and promoted OxyContin through a campaign of misinformation, knowing falsehoods and fraud in violation of The District of Columbia Consumer Protection Procedures Act, D.C. CODE ANN. §§ 28-3901, et seq. ["DCCPA"].
Specifically, plaintiffs assert that OxyContin is a synthetic morphine drug that defendants have marketed as providing a "smooth and sustained pain control for 12-hour dosing intervals" with "only a negligible risk, if any, of addiction." Complaint ¶ 14. Plaintiffs maintain that OxyContin does not have the benefits and effects predicted, that it poses a great risk of addiction, and that the defendants knew these facts and ignored them. Through an alleged campaign of misrepresentation and omission, plaintiffs aver, defendants were able to inflate the price for OxyContin, leading to approximately one billion dollars in sales in the United States in 2000. A portion of the sales are alleged to have occurred in the District of Columbia. Messrs. Williams and Perry state that they were prescribed OxyContin and purchased it through pharmacies in the District of Columbia.
The plaintiffs charge defendants with violating the DCCPA (Count One) and engaging in a conspiracy to violate the DCCPA (Count Two). With respect to Count One the complaint asserts,
Through their misleading marketing campaign, Defendants have violated the DCCPA, and are liable for a refund of all moneys acquired, for treble damages, or $1,500 per violations [sic], whichever is greater, and any additional legal and equitable relief as deemed appropriate by this Court. Complaint ¶ 60.
In addition, the complaint seeks punitive damages. Complaint ¶ 61. Count Two alleges a conspiracy among the defendants to use unfair, fraudulent and deceptive business practices and thereby to violate the DCCPA. Further, "As a direct, proximate and legal result of [these alleged] violations..., Plaintiffs and class members have suffered, and continue to suffer, common damages." Complaint ¶ 66. Exemplary damages are also sought on Count Two. Complaint ¶ 67.
In its prayer for relief, the complaint seeks, inter alia,
ù "[A]ll equitable injunctive and monetary relief and penalties due to Plaintiffs and class members... including treble damages and/or the statutory penalty amount;"
ù "[T]he refund of all monies spent by Plaintiffs and class members on OxyContin";
ù Interest, costs, expenses and attorneys' fees; and
ù "Such other and further relief as the Court deems just and proper...." ...