OPINION & ORDER Plaintiff Sandoz Inc. (“Plaintiff” or “Sandoz”) commenced this action on August 27, 2020 against Defendants Medwiz Solutions, LLC (“Medwiz”), unknown members of Medwiz, and individuals Blanche Reiss (“Reiss”) and Batya Gorelick (“Gorelick”) (together, “Individual Defendants”) (collectively, “Defendants”). (Complaint (“Compl.”), ECF No. 1.) Plaintiff asserts claims of fraud/fraudulent inducement, negligent misrepresentation, unjust enrichment, and claims under the Racketeer Influence and Corrupt Organization Act (“RICO”) pursuant to 18 U.S.C. §1961 et seq. in connection with Defendants’ alleged submission of falsified debit memos to Plaintiff in order to receive return credits on nonrefundable products. (Id.) Presently before the Court is Defendants’ motion to dismiss Plaintiff’s Complaint. (ECF No. 22.) For the following reasons, Defendants’ motion to dismiss is granted in part and denied in part. BACKGROUND The following facts are drawn from Plaintiff’s Complaint and are assumed as true for the purposes of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). I. Sandoz’s Return Goods Policy Plaintiff Sandoz is a manufacturer and seller of generic pharmaceuticals and biosimilars. (Compl. 12.) Sandoz sells its products directly to certain customers, including its Authorized Servicing Wholesalers. (Id.) An Authorized Servicing Wholesaler (“ASW”) may purchase products from Sandoz and sell the products to other distributers and pharmacies. (Id. 13.) Customers who purchased Sandoz products directly from an ASW may have an indirect contract with Sandoz. (Id. 14.) Sandoz published a Return Goods Policy (“Return Policy”) dated January 1, 2015 detailing the policy and procedures for returning Sandoz products. (Id. 15; see Exhibit A to Plaintiff’s Complaint, ECF No. 1-1.) Under the Return Policy, purchasers with a direct or indirect contract with Sandoz may return and receive credit for Sandoz products that are within six months of its expiration date or up to 12 months of its post-expiration date, subject to other terms and conditions. (Compl. 16.) Periodically, Sandoz sells products that are within one year of their expiration dates (“short-dated products”) at significantly discounted prices. (Id. 17.) Sales of short-dated products are final and such products are not eligible for credit for any customer, regardless of whether the customer has a direct or indirect contract with Sandoz. (Id.) When short-dated products are sold, the orders state that the discounted purchases are final and not returnable for credit. (Id. 18.) Specifically, all short-dated purchase orders state that the offer is for short-dated products limited to the quantities and dating listed, that no rebates apply to these products, that all quantities listed are not returnable for credit, that the products are sold on a first-come, first-serve basis, and that the customer agrees that all short-dated products will be labeled as short-dated inventory on all purchase orders and invoices. (Id. 19.) For returns that allow for credit under the Return Policy, the customer receives a credit in the amount of the lower of the current or most recent contract price available to the customer, a standard selling price as determined by Sandoz if no contract exists, or the actual purchase price paid for the product. (Id. 20.) Customers may also return products that are not eligible for credit for the limited purposes of processing and proper disposal. (Id. 21.) II. The Return Process The Return Policy instructs customers on how to return Sandoz products. (Id. 22.) To submit a return, the returning facility sends the product to Sandoz’s third-party processor FedEx Supply Chain, formerly known as Genco Pharmaceutical Services (“FedEx/Genco”).1 (Id. 23.) Each return request submitted to FedEx/Genco must be accompanied by a “debit memo” which provides detailed information regarding the returned product. (Id. 25.) The debit memo requires information regarding: the returning facility’s name, address, and DEA number; the name of the ASW from which the product was purchased (for indirect contracts); and the product description, batch, or lot number, National Drug Code (“NDC”), expiration date, and quantity returned. (Id. 26.) Sandoz relies on the information in the debit memo to determine whether a product is eligible for credit and the appropriate amount for credit. (Id. 27.) Sandoz will not issue any credit for returned products if the returning facility fails to provide the required information in the debit memo or if the debit memo shows that the returning facility does not have a direct or indirect contract with Sandoz. (Id.
28-29.) A returning facility can include a proposed value for the returned product in the debit memo, but Sandoz ultimately determines the credit amount based on the documentation provided. (Id. 30.) A customer with a direct contract with Sandoz receives credit directly from Sandoz’s customer support and a customer with an indirect contract receives credit from Sandoz through FedEx/Genco in the form of a check. (Id.
