Searcy, et al v. Gilead Sciences Inc

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JONATHAN SEARCY, on behalf of himself 	)
and all others similarly situated, et al., 	)
)
Plaintiffs, 	)
)
vs. 	) 	Case No. 4:20-cv-1523-MTS
)
GILEAD SCIENCES, INC., 	)
)
Defendant. 	)
MEMORANDUM AND ORDER
Before the Court is Plaintiffs’ Motion for Class Certification, Doc. [206], along
with Defendant’s Motions to Exclude Testimony, Docs. [215] & [216], and Plaintiffs’
Conditional Motion to Remand, Doc. [252]. 	After oral argument, a thorough review of
the parties’ briefing, and due consideration, the Court concludes that class certification is
not appropriate here. For the reasons explained below, the Court will deny each Motion.
I.
Not all that long ago, infection with the human immunodeficiency virus (HIV)
typically progressed to acquired immunodeficiency syndrome (AIDS), and AIDS onset
virtually always proved fatal. 	See AIDS, Stedman’s Medical Dictionary (Nov. 2014).
That need not be so today. 	Therapeutics have transformed HIV infection from a lethal
disease into a manageable chronic condition. 	See id. 	Gilead Sciences, Inc. (“Gilead”), a
biopharmaceutical company and the Defendant in this action, manufactures therapies that
treat HIV. 	Plaintiffs, two HIV-positive men, were prescribed and took medications, as
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directed by their healthcare providers, that Gilead manufactured. 	The medications they
took worked exactly as prescribed, effectively managing their HIV. 	What is more, the
medications did so safely; neither Plaintiff alleges that he suffered any personal injury
from taking them. 	So why have they sued Gilead after taking its lifesaving medications
without adverse effect? 	Plaintiffs’ operative Complaint claims that they overpaid for
Gilead’s medications based on its alleged misconduct. And they now seek to represent a
class of individuals who purchased the relevant medications in Missouri.
A.
Gilead owned the exclusive rights to tenofovir, and it sought to develop an oral
prodrug1 form of the compound. 	At points in time, Gilead developed the two prodrugs
that are relevant to this action, tenofovir disoproxil fumarate (TDF) and tenofovir
alafenamide (TAF). 	Plaintiffs maintain that TAF is safer and more effective than TDF.
They allege that though Gilead knew this to be true, it concealed TAF’s allegedly
superior safety profile and deliberately delayed TAF’s release to prolong market share
dominance through a patent-extension strategy. 	Gilead then launched TAF around two
years before TDF’s patent expired, which Plaintiffs allege allowed Gilead to convince
patients 	to 	switch 	from 	its 	patent-expiring 	TDF-based 	medications 	to 	TAF-based
medications.
Plaintiffs Jonathan Searcy and Ervin Kirk each were prescribed, purchased, and
took TDF-based medications but switched to TAF-based medications. 	Each maintains
1 That is, a biologically inactive compound that can be metabolized in the body to produce a
desired drug.
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that 	he 	would 	not 	have 	taken 	the 	TDF-based 	drugs 	were 	TAF-based 	alternatives
available, and each alleges that he would not have “paid what he paid” for the TDF-based
medications had he known they were “less effective and more dangerous than they
needed to be,” or had he “known of Gilead’s deceptive and misleading conduct.” 	Doc.
[69] ¶¶ 48–49, 53–54.
Plaintiffs assert that when Gilead sold TDF-based medications as “the safest
antiviral HIV drug known to [it],” Doc. [208] at 16, Gilead violated the Missouri
Merchandising Practices Act (MMPA) and was unjustly enriched under Missouri law,
Doc. [69] ¶¶ 73–82, 83–88. 	The Court previously denied Gilead’s Motion to Dismiss
both claims against it.2 Now, Plaintiffs ask the Court to certify a class consisting of:
All persons (as defined by Mo. Rev. Stat § 407.010.5) who purchased any
TDF-based 	drug, 	including 	Atripla, 	Complera, 	Stribild, 	Truvada, 	or
Viread, in Missouri, primarily for personal, family or household purposes
between July 1, 2003, and November 1, 2015.
There are important exclusions from the class. 	Besides the usual conflict exclusions,
specifically excluded from the class are Missouri residents who, before the entry of
judgment in this case, have filed claims that they suffered a personal injury from TDF
medication, including any person who is, has been, or becomes a plaintiff identified by
name claiming personal injuries in (1) the coordinated proceeding entitled 	Gilead
2 See Johnson v. Gilead Scis., Inc., 563 F. Supp. 3d 981 (E.D. Mo. 2021). Intervening case law,
along with Plaintiffs’ acknowledgement that TDF-based drugs still have value, leads the Court to
question whether it properly denied Defendant’s Motion to Dismiss. 	See, e.g., Hennessey v.
Gap, Inc., 86 F.4th 823, 827–831 (8th Cir. 2023); Ellis v. Nike USA, Inc., 158 F.4th 932, 934 n.3
(8th Cir. 2025) (citing id.); see also Davis v. Washington Univ. in St. Louis, 960 F.3d 478, 482
(8th Cir. 2020) (“To survive a motion to dismiss, a complaint must contain ‘sufficient factual
matter’ to state a facially plausible claim for relief.”).
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Tenofovir Cases, JCCP No. 5043 (S.F. Super. Ct.), (2) the action entitled Holley v. Gilead
Sciences, Inc., 4:18-cv-6972-JST (N.D. Cal.) (“Holley”), or (3) any action consolidated
for pretrial purposes with Holley.
B.
Federal Rule of Civil Procedure 23 governs class actions and 	provides the
necessary prerequisites. 	It is Plaintiffs’ burden to demonstrate that their proposed class
satisfies those requirements. 	Stuart v. State Farm Fire & Cas. Co., 910 F.3d 371, 374
(8th Cir. 2018). 	These include the threshold requirements of numerosity, commonality,
typicality, and adequacy. 	See Fed. R. Civ. P. 23(a). 	The class must also be “clearly
defined and adequately ascertainable,” Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc.,
821 F.3d 992, 996 (8th Cir. 2016), and fit “within ‘one of the three subsections of Rule
23(b),’” Stuart, 910 F.3d at 374 (quoting Webb v. Exxon Mobil Corp., 856 F.3d 1150,
1155 (8th Cir. 2017)). Here, Plaintiffs seek certification pursuant to Rule 23(b)(3), which
requires “that the questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the controversy.” 	Fed. R.
Civ. P. 23(b)(3). 	Although “[a] district court has broad discretion to determine whether
certification is appropriate,” Stuart, 910 F.3d at 375 (internal quotations omitted), it
“must undertake a rigorous analysis to ensure that the requirements of Rule 23 are met,”
Sandusky, 821 F.3d at 998 (citation omitted).
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II.
Prior to a Rule 23 analysis, Plaintiffs face an initial issue that they have not shown
they can overcome. The U.S. Court of Appeals for the Eighth Circuit has recognized that
the “constitutional requirement of standing is equally applicable to class actions.” 	Avritt
v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010). 	In Avritt, the Eighth
Circuit held that “a class cannot be certified if it contains members who lack standing.”
Id. (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 263–64 (2d Cir. 2006)). 	“[T]o
put it another way,” the Eighth Circuit held that “a named plaintiff cannot represent a
class of persons who lack the ability to bring a suit themselves.” Avritt, 615 F.3d at 1034;
accord Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773, 778 (8th Cir. 2013) (“In order
for a class to be certified, each member must have standing and show an injury in fact
that is traceable to the defendant and likely to be redressed in a favorable decision.”).
Because the Court concludes that Plaintiffs’ class definition “include[s] individuals who
lack standing,” the Court cannot certify it. 	See Johannessohn v. Polaris Indus. Inc., 9
F.4th 981, 988 & n.3 (8th Cir. 2021).3
3 Avritt, like the Second Circuit in Denney, concluded that Article III bars certification when a
class definition includes someone who lacks standing. 	Since then, the Eighth Circuit seems to
have hedged on whether the bar is a Rule 23(b)(3) one or an Article III one. See Halvorson, 718
F.3d at 778 (discussing the standing issue in tandem with predominance); see also Neale v. Volvo
Cars of N. Am., LLC, 794 F.3d 353, 366 (3d Cir. 2015) (comparing Avritt and Halvorson and
noting that it was “not clear to us whether the Eighth Circuit’s standing analysis rests on Article
III or Rule 23”). 	Whether the issue is rooted in Article III or Rule 23, it leads to the same
result—no certification here.
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A.
To have Article III standing, a plaintiff “must have a personal stake in the case.”
TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citation modified). 	More
specifically, Article III standing requires “(1) an injury in fact; (2) a causal connection
between the injury and conduct complained of; and (3) [a] likelihood that the injury will
be redressed by a favorable decision.” 	Id. at 987 (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61 (1992)). “To establish injury in fact, a plaintiff must show that he
or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560).
At issue here is the injury in fact requirement. Many consumer cases against drug
manufacturers easily establish Article III’s injury requirement because they allege that
the drug at issue caused them physical harm. 	See, e.g., In re Vioxx Prods. Liab. Litig.,
360 F. Supp. 2d 1352, 1353–54 (J.P.M.L. 2005). 	Physical injuries straightforwardly
suffice as Article III injuries. 	See TransUnion, 594 U.S. at 425; Hein v. Freedom From
Religion Found., Inc., 551 U.S. 587, 642 (2007) (Souter, J., dissenting). 	This case is an
unusual one in that there is no physical harm alleged. While Plaintiffs claim that Gilead’s
decisions around tenofovir caused unnecessary deaths and injuries to others, the proposed
class specifically excludes those who claim they suffered a personal injury from TDF-
based medications. 	So, the putative class members cannot use physical injury as their
concrete injury.
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With no physical injury, Plaintiffs point to what would be another clearly concrete
injury, monetary or economic harm, which “ha[s] long been recognized as sufficient to
lay the basis for standing.” 	Sierra Club v. Morton, 405 U.S. 727, 733 (1972). 	Plaintiffs
themselves have plausibly alleged that they overpaid for their TDF-based medications
given Gilead’s misrepresentations, which is a concrete economic injury sufficient to
establish Article III standing. See George v. Omega Flex, Inc., 874 F.3d 1031, 1032 (8th
Cir. 2017) (per curiam) (“George’s assertions of paying more than CSST is worth . . . [is
an] economic injury sufficient to establish Article III standing.”); accord In re Recalled
Abbott Infant Formula Prods. Liab. Litig., 97 F.4th 525, 529 (7th Cir. 2024); In re
Evenflo Co., Inc., Mktg., Sales Pracs. & Prods. Liab. Litig., 54 F.4th 28, 35 (1st Cir.
2022); In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Pracs. & Liab.
Litig., 903 F.3d 278, 285 (3d Cir. 2018).
Take 	Plaintiff 	Searcy. 	See 	Biden 	v. 	Nebraska, 	600 	U.S. 	477, 	489 	(2023)
(explaining that if at least one plaintiff has standing, the action may proceed). 	Searcy
alleged that he would not have paid what he paid for his TDF-based medications had he
known that “they were less effective and more dangerous than they needed to be,” or had
he known of Gilead’s “deceptive and misleading conduct.” 	Doc. [69] ¶ 54. 	Admissible
evidence shows that, for at least one of his TDF-based prescriptions, he spent $200.
These facts support a reasonable inference that this alleged overpayment suffices as an
economic injury here.4 	See McNaught v. Nolen, 76 F.4th 764, 770 (8th Cir. 2023)
4 There may be several reasons why this amount will not suffice as a statutory injury under the
Missouri Merchandising Practices Act or that Searcy is not entitled to damages, but this
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(explaining that a plaintiff must allege sufficient facts to support a reasonable inference
that he can satisfy the elements of standing). 	Put differently, Plaintiffs “plausibly allege
an injury in fact—that they paid more for [the medications] than they would have paid
had they known [the relevant information]. 	This difference in price states a concrete
economic harm that satisfies Article III standing’s injury in fact element, no matter the
label we give it.” Debernardis, 942 F.3d at 1090 (Sutton, J., concurring).
But while Plaintiff Searcy has standing, not everyone encompassed in the class
definition would. 	The products at issue here, prescription medications, are not standard
retail goods. Not every consumer pays the same price—or even close to the same price—
for them at the point of sale. 	See Doc. [227-3] ¶ 81; see also Marc A. Rodwin,
Negotiating Medicare Drug Prices: A New Attempt to Control Purchase Prices, 53 J.L.
Med. & Ethics 147, 147 (2025) (noting drug prices and copayment amounts vary widely
among patients within the United States). 	The same is true for the medications at issue
here, and that is where Plaintiffs’ class definition runs into problems. Plaintiffs propose a
class of all persons who purchased a TDF-based drug. This definition encompasses those
who paid nothing for the medication at the point of sale. See Doc. [250] at 33 (answering
in the affirmative that those who “paid very little, to nothing, for” the medications were
encompassed in the class definition). 	And many class members paid nothing. 	For
example, evidence in the record shows that across all prescriptions for TDF-containing
overpayment is a plausible economic injury. 	See Debernardis v. IQ Formulations, LLC, 942
F.3d 1076, 1090 (11th Cir. 2019) (Sutton, J., concurring). 	For this reason, the Court will deny
Plaintiffs’ Conditional Motion to Remand. See Doc. [252]; see also Davis v. United States, 564
U.S. 229, 249 n.10 (2011) (faulting a party for “confus[ing] weakness on the merits with absence
of Article III standing”).
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medications filled at CVS pharmacies in Missouri between January 1, 2010, and October
31, 	2015, 	consumers 	paid 	nothing 	for 	approximately 	fifty-six 	percent 	of 	these
prescriptions. Doc. [227-3] ¶ 164.
Though many paid nothing for these medications, they are life-saving ones that
undeniably have value and worth. TDF-based medications remain approved by the Food
and Drug Administration. 	Doctors prescribe them, pharmacists dispense them, and
patients take them even today. 	While a jury could (at least theoretically) agree that
Plaintiffs overpaid for the medications, Plaintiffs themselves acknowledge that these
drugs have value. Doc. [208-28] ¶ 73. For this reason, purchasers who paid nothing out
of pocket for medications that are worth something necessarily lack an economic injury.
See In re Johnson & Johnson, 903 F.3d at 288 (concluding that plaintiff “received the
benefit of her bargain” and “suffered no economic injury” where she failed to allege that
she received “an economic benefit worth one penny less than what she paid”); Mathison
v. Bumbo, 8:08-cv-0369-DOC, 2008 WL 8797937, at *5 (C.D. Cal. Aug. 18, 2008)
(noting that if plaintiffs “did not pay anything” for product at issue, then “they got exactly
what they paid for,” which “does not confer standing to sue”).
In response to this problem, Plaintiffs argue that even those who paid nothing or
minuscule amounts still suffered an Article III injury because Missouri law entitles them
to benefit of the bargain damages. But “under Article III, an injury in law is not an injury
in fact.” TransUnion, 594 U.S. at 427. Therefore, there is no such thing as an anything-
hurts-so-long-as-the-Missouri-General-Assembly-says-it-hurts 	theory 	of 	Article 	III
injury. 	See Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 463 (6th Cir. 2019); see also
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Dinerstein v. Google, LLC, 73 F.4th 502, 521 (7th Cir. 2023) (noting “TransUnion put an
end to federal courts hearing claims premised on nonexistent injuries”). 	Article III
“requires at a minimum that the injury ‘exist’ in the real world independent of a
legislature’s choice to confer the right to sue and independent of the plaintiff’s claim to
be hurt.” 	Debernardis, 942 F.3d at 1089 (Sutton, J., concurring). 	Claiming that a legal
entitlement to benefit of the bargain damages is itself a cognizable Article III injury,
misses 	the 	“easy-to-miss 	distinctions 	between 	(1) 	injury 	in 	fact 	(a 	constitutional
imperative), (2) statutory injury (an element of the plaintiff’s cause of action), and (3)
damages (a remedies calculation).” 	Id. at 1090. 	For these reasons, the Court concludes
that Plaintiffs have not shown that each member of the proposed class would have
standing to assert an MMPA claim.
B.
No 	different 	is 	the 	standing 	analysis 	for 	the 	unjust 	enrichment 	claims 	of
individuals who paid nothing for their TDF-based medications at the point of sale. After
all, those who paid nothing out of pocket conferred no benefit upon Defendant. 	See
Xpedior Creditor Tr. v. Credit Suisse First Bos. (USA) Inc., 341 F. Supp. 2d 258, 273
(S.D.N.Y. 2004) (finding no standing to assert unjust enrichment claim where plaintiff
“d[id] not allege that [defendant] was enriched at [plaintiff’s] expense”); Fed. Deposit
Ins. Corp. v. Brit.-Am. Corp., 755 F. Supp. 1314, 1324 (E.D.N.C. 1991) (finding no
standing to assert unjust enrichment claim where plaintiff did not show that he conferred
the benefit); Weiner v. Bank of King of Prussia, 358 F. Supp. 684, 704 (E.D. Pa. 1973)
(“The plaintiff cannot possibly assert a cause of action for unjust enrichment against
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banks which never received any money from him.”). 	They did not do so even if they
caused another entity (i.e., a third-party payor) to do so. See Calderon v. Sixt Rent a Car,
LLC, 114 F.4th 1190, 1211 (11th Cir. 2024) (noting courts have concluded that the
collateral source doctrine cannot be used to satisfy a requirement of showing injury-in-
fact for standing purposes); Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 299 (4th Cir.
2005) (concluding plaintiff lacked standing where “he suffered no out-of-pocket loss
himself” because plaintiff’s “medical insurance provided by his employer paid the
[relevant] expenses”).
Put “[i]n more pedestrian terms,” even under a theory of unjust enrichment, a
patient who paid nothing out-of-pocket when she purchased her lifesaving prescription,
and suffered no personal injury as a result, could not satisfactorily answer the question:
“What’s it to you?” See Antonin Scalia, The Doctrine of Standing as an Essential
Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983). Therefore,
the Court concludes that it cannot certify Plaintiffs’ class for their unjust enrichment
claim.
* 	* 	*
In sum, individuals who paid nothing for their lifesaving TDF medications, which
caused them no bodily injury, lack standing. 	Plaintiffs’ proposed class definition
concededly contains individuals who lack standing. 	See Doc. [250] at 33. 	The Court
therefore cannot certify it. 	Further, altering the class definition to somehow exclude
these individuals—were that even possible—would be to no avail because Plaintiffs’
proposed class suffers from other maladies.
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III.
As explained above, certification is proper only if the trial court is satisfied, after a
“rigorous analysis,” that the prerequisites of Rule 23 have been satisfied. Comcast Corp.
v. Behrend, 569 U.S. 27, 33 (2013). 	Beyond the standing issue that Plaintiffs fail to
overcome as discussed above, Rule 23 issues also stand in the way of class certification
here. The Court chooses to briefly address a few of them given that all of them would be
independent grounds for denial of Plaintiffs’ Motion for Class Certification. 	See United
States v. Files, 63 F.4th 920, 935 n.4 (10th Cir. 2023) (Newson, J., joined by Tjoflat, J.,
concurring) (discussing when it may be advisable for district courts to provide alternative
grounds for their decisions).
A.
To certify a damages class under Rule 23(b)(3), Plaintiffs must meet the “more
demanding” requirement that “‘questions of law or fact common to class members
predominate over any questions affecting only individual members.’” Comcast, 569 U.S.
at 33–34. 	This analysis “necessarily requires an examination of the underlying elements
necessary to establish liability for plaintiffs’ claims.” Blades v. Monsanto, 400 F.3d 562,
569 (8th Cir. 2005) (citing Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259
F.3d 154, 172 (3d Cir. 2001)). 	Here, individual issues predominate because prescribing
decisions are patient-specific and give rise to individualized issues that are central to
questions of causation and loss.
An ascertainable loss is a necessary element of an MMPA claim. Owen v. Gen.
Motors Corp., 533 F.3d 913, 922 (8th Cir. 2008). So too is causation. Id. (“[T]here is no
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denying that causation is a necessary element of an MMPA claim.”). 	And “the plain
language of the MMPA demands a causal connection between the ascertainable loss and
the unfair or deceptive merchandising practice.” 	Id. 	Here, Plaintiffs maintain that they
“and the class purchased TDF-based drugs with the expectation that TDF-based drugs
had a certain risk profile, and that they were the most effective and safest version of the
therapy known to Gilead.” Doc. [69] ¶ 82. That contention might establish causation for
an ascertainable loss, at least for those purchasers who had such an expectation and
belief. 	But Gilead’s allegedly unfair or deceptive practices would not have caused an
ascertainable loss for those who had no such expectation or belief, that is, those who
would have taken a TDF-based drug regardless of the challenged conduct. 	See In re
Avandia Mktg., Sales Pracs. & Prods. Liab. Litig., 100 F. Supp. 3d 441, 446 (E.D. Pa.
2015), aff’d, 639 F. App’x 866 (3d Cir. 2016) (finding no ascertainable loss under the
MMPA where plaintiff “received the drug she was prescribed, took the drug, and alleges
neither that the drug failed to do its job . . . nor that she was injured by taking the drug”).
Plaintiffs simply assume that every person who took TDF-based medications not
only believed that they were the most effective and safest medications but also that they
would not have purchased the medications had they known the truth (as Plaintiffs see it).
Evidence in the record says otherwise, as does common sense. First, in line with industry
practice, Gilead repeatedly updated the labeling on its drugs during the proposed class
period as more information became available. 	Doc. [227-1] ¶ 34 (“Similar to all
prescription medications, TDF medication labels have been iterative, modified over time
to reflect evolving science around potential bone and kidney risks as we learned more
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about the drug.”). 	Compare also, e.g., Doc. [220-57] (prescribing information for
Stribild, revised Aug. 2012), with Doc. [220-58] (prescribing information for Stribild,
revised Dec. 2014). 	What Gilead communicated to putative class members, and what
each understood, unquestionably will vary and be subject to individual proof. 	Second,
doctors make prescribing decisions—and patients choose whether to take prescribed
medications—for a host of different reasons. 	The record shows that numerous patients
continued 	purchasing 	TDF-based 	medications 	even 	after 	TAF-based 	ones 	became
available. In fact, Plaintiff Searcy is among them.
Searcy alleged in the Third Amended Complaint that he “would not have taken”
his TDF-based drug “at any point” if a TAF-based drug was “available and known to
him.” Doc. [69] ¶ 53. Evidence in the record, though, shows that Searcy remained on his
TDF-based medication even after the release of a TAF-based drug because of insurance
considerations. 	Doc. [214-17] at 236–37. 	What is more, Plaintiff Searcy finished the
remaining TDF-pills he had already purchased even after he moved to an insurance plan
that covered the new TAF-based drug. Id.5
Even putting aside Plaintiffs’ burden to prove the merits of their MMPA claim,
Defendant also has “the right . . . to present evidence negating [Plaintiffs’] direct or
circumstantial showing of causation and reliance.” 	In re St. Jude Med., Inc., 522 F.3d
5 This inconsistency, which goes to the heart of Plaintiffs’ claims, also raises adequacy issues.
See Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998) (noting that named
plaintiff’s offering of “differing accounts about the [things] that form the very basis for his
lawsuit surely would create serious concerns as to his credibility at any trial”); 1 McLaughlin on
Class 	Actions 	§ 4:27 	(21st 	ed.) 	(noting 	lapses 	in 	credibility 	will 	render 	the 	proposed
representative inadequate when they “go to the heart of the claims in the case”).
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836, 840 (8th Cir. 2008); accord Hudock v. LG Elecs. U.S.A., Inc., 12 F.4th 773, 776–77
(8th Cir. 2021) (“Defendants may offer individualized proof that class members did not
react in a uniform or even similar manner to the defendant’s misrepresentations.”
(citation modified)). 	Thus, “it is clear that resolution of [Gilead’s] potential liability to
each plaintiff under the consumer fraud statutes will be dominated by individual issues.”
St. Jude, 522 F.3d at 840. 	Indeed, a recent decision by the Eighth Circuit now renders
this conclusion abundantly clear. 	See In re Folgers Coffee Mktg., 159 F.4th 1151 (8th
Cir. 2025).
In Folgers, the plaintiffs identified over two dozen coffee products that allegedly
overstated how many cups they could make. Id. at 1153–54. A 30.5-ounce container, for
example, claimed it made “up to 240” six-ounce cups, based on brewing directions that
included both a less efficient single-serving method and a more efficient pot method. Id.
at 1154. 	But the “up to 240” cups figure is achievable only under the more efficient pot
method, which uses less coffee per cup. 	Id. 	The district court granted the plaintiffs’
motion for class certification, see 2024 WL 4093111 (W.D. Mo. July 31, 2024), but the
Eighth Circuit concluded that common questions would not predominate over individual
ones and therefore reversed.
“The difficulty for [the plaintiff],” the Eighth Circuit explained, was that “for
many people in his proposed class, the representations on the containers would not have
caused them any ascertainable loss; instead, they got exactly what they had bargained for
when they purchased the Folgers products at issue.” 	Folgers, 159 F.4th at 1156. 	It was
“ineluctable that a significant proportion of the proposed class did not read th[e]
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representations or, if they did, did not care about them one way or the other.” 	Id. (citing
State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 862 (Mo. banc 2008)). 	And a
“significant proportion” of those who read and cared about the representations, “likely
did not interpret the representations in the manner [the plaintiff] suggest[ed.]” Id. Some
“read the representations and believed that the promised number of cups could be
achieved 	only 	some 	of 	the 	time 	under 	certain 	conditions” 	or 	“understood 	the
representations to mean that other, non-recommended brewing methods could brew the
promised number of cups.” Id.
In sum, the court in 	Folgers concluded that “many class members weren’t
deceived, and figuring out who was and who wasn’t w[ould] require consumer-by-
consumer inquiries into each class member’s individual . . . circumstances, undermining
the efficiencies class actions are intended to provide.” 	See Folgers, 159 F.4th at 1156.
Folgers dooms any vestige of merit in Plaintiffs’ argument that common questions
predominate.
Many more factors go into a doctor’s prescribing decisions and a patient’s choice
to take a prescribed medication than choosing what coffee to buy. 	The “ineluctable”
conclusion from Folgers is true here. 	That is, even if Gilead hid from Plaintiffs and the
class members “the risk profile for the TDF-based drugs, and misrepresented, suppressed,
and concealed the reasons why the development of the TAF-based drugs were abandoned
in 2004,” Doc. [69] ¶ 82, some proportion of the proposed class did not believe that TDF-
based medications were the most effective and safest version of the therapy known to
Gilead or, even if they did, did not care about that representation one way or the other.
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As discussed above, the record bears this out even among the named Plaintiffs here. 	As
such, determining which members of the class had an ascertainable loss is hopelessly
individualized, and class certification is therefore improper. See Orduno v. Pietrzak, 932
F.3d 710, 716 (8th Cir. 2019) (“Where too many individual questions predominate over
common ones, certification is inappropriate.”); Folgers, 159 F.4th at 1158 (“Since
common questions would not predominate over individual questions with respect to the
MMPA claim, we conclude that class certification was inappropriate.”).
Plaintiffs 	attempt 	to 	sidestep 	this 	predominance 	problem 	by 	arguing 	that
individualized inquiries are unnecessary since every member of the class automatically
suffered an ascertainable loss. 	Doc. [244] at 3 (arguing that all class members were
injured because “all bought TDF at objectively inflated prices”); Doc. [69] ¶ 82 (“[T]he
prices Gilead commanded for TDF-based drugs prior to the release of the TAF-based
analogs did not reflect the true value of those drugs, and Gilead was able to command
such prices only because of their unlawful conduct and misrepresentations concerning
TAF and TDF.”). Folgers dispenses with this argument, too. There, the plaintiff argued
that the misleading cup-count statements increased consumer demand for Folgers coffee,
which in turn raised market prices. 	Id. 	Because of this price inflation, all buyers, the
plaintiff argued, paid more than they otherwise would have—even those who were not
personally deceived—since the alleged misrepresentation drove up the market price for
everyone. 	Id. 	The Eighth Circuit turned away this “price-premium argument,” noting it
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“would allow those who suffered no ascertainable loss from Folgers’s representations to
piggyback on the injuries of others to pursue a remedy.” Id.6
“[A]ccepting [the plaintiff’s] price-inflation theory,” the Eighth Circuit explained,
“would write the ascertainable-loss requirement out of the statute and permit any
purchaser of these Folgers products to bring an MMPA claim, even if the purchaser
didn’t care about the representations or wasn’t misled by them.” 	Id. at 1158. 	And it
recognized the absurdity that such a theory would allow “a purchaser, fully aware of the
representations and their potential shortcomings, [to] buy the product for the sole purpose
of bringing an MMPA claim on behalf of others.” 	Id. 	“Surely someone with full
knowledge of the facts and a willingness to make the purchase anyway cannot have
suffered an ascertainable loss from the representations of the seller.” 	Id. (citing Coca-
Cola Co., 249 S.W.3d at 862).
B.
“[Plaintiffs’] unjust-enrichment claim fares no better.” Folgers, 159 F.4th at 1158.
The Eighth Circuit explained in Folgers that “[w]hether a particular transaction might be
considered inequitable or unjust turns on the specific circumstances of each transaction,
which again places individual inquiries front and center.” 	Id. 	It concluded, as “several
[other] courts and commentators” have, that unjust-enrichment claims “are generally
inappropriate for class treatment” for that reason. 	Id. 	With no further analysis, it
6 And, again, even if Plaintiffs were excused “from presenting direct proof of individual
reliance,” it “would not foreclose [Defendant] from presenting evidence of a lack of causation or
reliance, which too would raise individualized questions.” Folgers, 159 F.4th at 1156.
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concluded there was “no reason that general rule shouldn’t apply here,” id., and this
Court sees no reason it shouldn’t apply here, either.
C.
At least one additional shortcoming on Plaintiffs’ MMPA class certification
prospects bears mention, Plaintiffs’ damages model for calculating class-wide benefit of
the bargain damages does not pass muster. 	The Supreme Court has explained that “a
model purporting to serve as evidence of damages in [a] class action must measure only
those damages attributable to th[e] theory” of liability. Comcast, 569 U.S. at 35. “If the
model does not even attempt to do that, it cannot possibly establish that damages are
susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” 	Id.
Plaintiffs’ model purports to calculate class-wide damages by finding the difference
between two values, “each TDF drug’s artificially inflated market value over the class
period” and “each TDF drug’s true market value without Gilead’s [allegedly] unlawful
practices.” Doc. [208] at 20. Put another way, Plaintiffs’ model purports to calculate the
difference between the “as represented” value of the product and the “as is” or “actual”
value of the product. 	Id. 	It sounds straightforward enough, but the Court agrees with
Defendant that the way Plaintiffs calculate both measures is fundamentally flawed.
The “as represented” value bases the amount that putative class members paid on
prices for wholesale sales. 	But it is undisputed that most putative class members had
some 	third-party 	payor, 	like 	insurance, 	Medicare, 	or 	Medicaid. 	Thus, 	for 	most
transactions at issue here, pharmacies broke them into two charges: the amount the
pharmacy charged to the consumer and the amount the pharmacy charged to the third-
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party payor. 	Doc. [227-3] ¶¶ 59–70. 	Putative class members were not even always
aware of these charges, let alone responsible to pay them. The damages model applied to
the named Plaintiffs illustrates its absurdity. 	As Defendants explain, the model would
award Plaintiff Searcy more than $25,000 for eight Stribild prescriptions and would
award Plaintiff Kirk more than $27,000 for thirteen Atripla prescriptions; however,
Searcy paid nothing out of pocket for his prescriptions, and Kirk paid only a total of
$400.01. See Doc. [224] at 24–25.7
What the Court views as worse, though, is the second half of Plaintiffs’ formula,
the supposed benchmark actual value of the medications. 	To determine the actual value
of Defendant’s TDF-based medications, Plaintiffs’ expert uses the price of generic
versions of the TDF-based medications. 	Doc. [208-28] ¶ 80. 	The Court agrees with
Defendant that the price of generic versions of the medications years after the class
period is not a reasonable proxy for the price at which Defendant would have sold its
branded TDF medicines, absent the challenged conduct.
Generic medications typically cost less than branded ones. 	See Doc. [227-3]
¶ 130; see also Mo. Rev. Stat. § 338.056.2 (allowing Missouri pharmacists generally to
select the “less expensive generically equivalent” drug instead of a prescribed brand
name drug). 	The size of the generic-to-brand price discount is commonly related to the
number of generic competitors. 	Doc. [227-3] ¶ 130; see also Frazer A. Tessema et al.,
7 In the same irrational way, this model would improperly assess damages to uninjured class
members, see In re Rail Freight Fuel Surcharge Antitrust Litig., 292 F. Supp. 3d 14, 143–44
(D.D.C. 2017) (finding plaintiffs’ class-wide damages model unreliable because it, in part,
assessed damages to uninjured class members), putting aside the antecedent issue of the
propriety of having uninjured class members in the class in the first place.
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Generic but Expensive: Why Prices Can Remain High for Off-Patent Drugs, 71 Hastings
L.J. 1019, 1021 (2020) (noting that while drugs with “just three” generic competitors
attain a 40% median reduction from brand-name price, “those with six manufacturers
attain a 62% median reduction”). 	Thus, regardless of Defendant’s alleged misconduct,
the market would expect to see generic TDF-based medication prices lower than brand-
name prices and would expect that the generic prices would continue to decrease as
generic competition increased. It follows then that Plaintiffs’ model simply observes the
effect of normal generic competition. 	All the while, the record shows that the prices
Defendant charged for its branded TDF-based medications increased over time—even as
the market gained additional information about TDF and TAF, after TAF came onto the
market, and even after entry of generic TDF-based medications. Doc. [227-3] ¶¶ 125–26.
The Supreme Court has made clear that “a model purporting to serve as evidence of
damages in [a] class action must measure only those damages attributable to that theory.”
Comcast, 569 U.S. at 35. 	Since the “model does not even attempt to do that, it cannot
possibly establish that damages are susceptible of measurement across the entire class for
purposes of Rule 23(b)(3).” Id. For this reason, Plaintiffs’ damages model fails Rule 23.
IV.
Given the multiple outcome-determinative issues discussed above, the Court
chooses not to rule on Defendant’s Motion to Exclude Testimony of Akhilesh Nagaich.
See 	also 	Cody 	v. 	St. 	Louis, 	103 	F.4th 	523, 	535 	(8th 	Cir. 	2024) 	(“The 	ultimate
admissibility of an expert’s opinion is therefore a red herring at the class-certification
stage.”). The Court notes, though, that in a case where Nagaich used the same timelines
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he used here, the United States District Court for the Northern District of California ruled
that “Nagaich may not testify as to any specific timelines because his opinions regarding
‘optimal TAF timelines’ lack sufficient basis in fact.” 	Holley v. Gilead Scis., Inc., 4:18-
cv-6972-JST, 2023 WL 2469632, at *5 (N.D. Cal. Feb. 27, 2023) (Tigar, J.). 	While a
review of the briefing on the Motion and Judge Tigar’s opinion appears to show that
Defendant’s Motion to Exclude is well taken, the Court will deny this Motion without
prejudice at this time. Defendant may reassert its arguments in the future, if necessary.
V.
For these reasons, class certification would not be appropriate in this action.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Class Certification, Doc.
[206], is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motions to Exclude Testimony,
Docs. [215] & [216], are DENIED without prejudice.
IT IS FINALLY ORDERED that Plaintiffs’ Conditional Motion for Remand,
Doc. [252], is DENIED.
Dated this 22nd day of January 2026.
MATTHEW T. SCHELP
UNITED STATES DISTRICT JUDGE
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