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Allen Lefaivre, Individually and On Behalf of All Others Similarly Situated v. Kv Pharmaceutical Company; Ethex Corporation

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Submitted: September 21, 2010

Before BYE, BEAM, and SMITH, Circuit Judges.

Allen Lefaivre, individually and on behalf of all others similarly situated, brought this potential class action suit against KV Pharmaceutical Company, ETHEX Corporation, and Ther-Rx Corporation (collectively, “KV”). KV manufactures a hypertension medication called Metoprolol Succinate ER. Lefaivre alleged that KV breached its implied warranty of merchantability and violated the Missouri Merchantability Practices Act (MMPA) by failing to manufacture the medication in compliance with federal regulations. In response, KV moved to dismiss the suit, asserting that the claims were essentially claims for violation of federal regulations themselves and that no private cause of action existed. The district court held that Lefaivre’s state law claims were preempted by federal law because the claims were based entirely on violations of federal regulations, and the enforcement of federal regulations is solely the province of the federal government. We hold that Lefaivre’s claims are not impliedly preempted and accordingly reverse and remand.

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