United Food & Commercial Workers Central Pennsylvania & Regional Health & Welfare Fund v. Amgen, Inc.

MEMORANDUM

Appellants’ complaint cannot survive a motion to dismiss because it failed to plead its allegations of fraud under RICO, 18 U.S.C. § 1962 (c), and California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq., with particularity. See Fed.R.Civ.P. 9(b); see also Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25 (9th Cir.2009); Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir.1988). The complaint did not identify statements or representations made by Amgen that were literally false or misleading at the time they were made, as required in a civil RICO action based on mail and wire fraud. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 , 1399-1401 (9th Cir.1986); see also 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1962(c) (RICO). Nor did the complaint identify material omissions in derogation of an independent statutory or fiduciary duty to disclose. Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466 , 1472 (9th Cir.1987). Though the complaint alleged that Amgen concealed adverse test results while promoting Aranesp and Epo-gen for various off-label uses, the complaint did not…