REPLY BRIEF OF APPELLANTS

Transcription

1 E-Filed Document Feb :03: IA SCT Pages: 23 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI No IA SCT PURDUE PHARMA L.P.; PURDUE PHARMA INC.; THE PURDUE FREDERICK COMPANY, INC.; TEVA PHARMACEUTICALS USA, INC.; CEPHALON, INC.; JOHNSON & JOHNSON; JANSSEN PHARMACEUTICALS, INC.; ORTHO-MCNEIL-JANSSEN PHARMACEUTICALS, INC. n/k/a JANSSEN PHARMACEUTICALS, INC.; JANSSEN PHARMACEUTICA, INC. n/k/a JANSSEN PHARMACEUTICALS, INC.; ENDO HEALTH SOLUTIONS INC.; ENDO PHARMACEUTICALS INC.; ALLERGAN PLC f/k/a ACTAVIS PLC; ACTAVIS, INC.; WATSON PHARMACEUTICALS, INC.; WATSON LABORATORIES, INC.; ACTAVIS LLC; and ACTAVIS PHARMA, INC. f/k/a WATSON PHARMA, INC., APPELLANTS, vs. STATE OF MISSISSIPPI, APPELLEE. INTERLOCUTORY APPEAL FROM THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI REPLY BRIEF OF APPELLANTS ORAL ARGUMENT REQUESTED ENDO HEALTH SOLUTIONS INC. and ENDO PHARMACEUTICALS INC. /s/ J. Carter Thompson Jr. J. Carter Thompson, Jr., Esq. (MSB No. 8195) David F. Maron, Esq. (MSB No ) Samuel D. Gregory, Esq. (MSB No ) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ One Eastover Center 100 Vision Drive, Suite 400 CEPHALON, INC., TEVA PHARMACEUTICALS USA, INC., WATSON LABORATORIES, INC.,ACTAVIS LLC, and ACTAVIS PHARMA, INC. f/k/a WATSON PHARMA, INC. /s/ Stephen L. Thomas Stephen L. Thomas, Esq. (MSB No. 8309) Alan W. Perry, Esq. (MSB No. 4127) Simon Turner Bailey, Esq. (MSB No.

2 Jackson, Mississippi Telephone: (601) Facsimile: (601) and- Joshua M. Davis, Esq. (admitted pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC Telephone: (202) JOHNSON & JOHNSON; JANSSEN PHARMACEUTICALS, INC.; ORTHO- McNEIL-JANSSEN PHARMACEUTICALS, INC. n/k/a JANSSEN PHARMACEUTICALS, INC.; JANSSEN PHARMACEUTICA, INC. n/k/a JANSSEN PHARMACEUTICALS, INC. /s/ Chad R. Hutchinson Chad R. Hutchinson, Esq. (MSB No ) Adam J. Spicer, Esq. (MSB No ) BUTLER SNOW LLP 1020 Highland Colony Parkway, Ste Ridgeland, MS Telephone: Facsimile: and- Charles C. Lifland, Esq. (admitted pro hac vice) O MELVENY & MYERS LLP 400 S. Hope Street Los Angeles, CA Telephone: (213) Facsimile: (213) clifland@omm.com ) Bradley Arant Boult Cummings LLP One Jackson Place 188 E. Capitol Street, Suite 400 Jackson, MS Telephone: Facsimile: sthomas@babc.com aperry@babc.com sbailey@babc.com -and- Steven A. Reed, Esq. (admitted pro hac vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA Telephone: (215) sreed@morganlewis.com Brian M. Ercole (admitted pro hac vice) MORGAN, LEWIS & BOCKIUS LLP 200 S. Biscayne Blvd., Suite 5300 Telephone: (305) Miami, FL bercole@morganlewis.com PURDUE PHARMA L.P.; PURDUE PHARMA, INC.; and THE PURDUE FREDERICK COMPANY, INC. /s/ Joseph Anthony Sclafani R. David Kaufman, Esq., (MSB No. 3526) Joseph A. Sclafani, Esq., (MSB No ) Brunini, Grantham, Grower & Hewes, PLLC The Pinnacle Building, Suite E. Capitol Street (39201) Post Office Drawer 119 Jackson, Mississippi Telephone: (601) Facsimile: (601) dkaufman@brunini.com jsclafani@brunini.com -and- Christopher A. Shapley, Esq. (MSB No.

3 6733) 111 Woodmont Way Ridgeland, MS and- Patrick J. Fitzgerald, Esq. (admitted pro hac vice) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 155 N. Wacker Drive, Suite 2700 Chicago, IL Telephone: (312)

4 TABLE OF CONTENTS Pagee TABLE OF AUTHORIT TIES... ii i INTRODUCTION... 1 ARGUMENT... 2 I. THE MCPA VESTS ORIGINAL JURISDICTION FOR THE STATE S SECTION 9 CLAIMS EXCLUSIVELY IN CHANCERY OR COUNTY COURT WHERE DEFENDANTS RESIDE OR HAVE A PRINCIPAL PLACE OF BUSINESSS... 2 A. B. C. The RAA Did Not Repeal MCPA Section Venue Is Improper in Hinds County Under Section The Court Can and Should Harmonize the RAA and MCPA Section II. VENUE IS IMPROPER UNDER MISSISSIPPI CODE SECTION CONCLUSIO ON i

5 TABLE OF AUTHORITIES Page(s) Cases Adams v. Miss. State Oil & Gas Bd., 139 So. 3d 58 (Miss. 2014)...3, 4 Balouch v. State, 938 So. 2d 253 (Miss. 2006)...2, 5 Brocato v. Miss. Publishers Corp., 503 So. 2d 241 (Miss. 1987)...7 Capital City Ins. Co. v. GB Boots Smith Corp., 889 So. 2d 505 (Miss. 2004)...7 Carl Ronnie Daricek Living Trust v. Hancock Cty., 34 So. 3d 587 (Miss. 2010)...3, 4, 9 City of Natchez v. Sullivan, 612 So. 2d 1087 (Miss. 1992)...13 Crenshaw v. Roman, 942 So. 2d 806 (Miss. 2006)...1, 6, 7, 8 Edmonds v. State, -- So. 3d --, 2017 WL (Miss. June 29, 2017)...5 Flight Line, Inc. v. Tanksley, 608 So. 2d 1149 (Miss. 1992)...6 Gade v. Nat l Solid Wastes Mgmt. Ass n, 505 U.S. 88 (1992)...12 Guice v. Miss. Life Ins. Co., 836 So. 2d 756 (Miss. 2003)...12 Holmes v. McMillan, 21 So. 3d 614 (Miss. 2009)...6 Estate of Jones v. Quinn, 716 So. 2d 624 (Miss. 1998)...6 Lawson v. Honeywell Int l, Inc., 75 So. 3d 1024 (Miss. 2011)...5 Lockhard v. United States, 546 U.S. 142 (2005)...6 ii

6 Miss. Gaming Comm n v. Imperial Palace of Miss., Inc., 751 So. 2d 1025 (Miss. 1999)...10 Office of Governor Div. of Medicaid v. Johnson, 950 So. 2d 1033 (Miss. Ct. App. 2006)...12 Parsons v. Miss. State Port Auth. at Gulfport, 996 So. 2d 165 (Miss. Ct. App. 2008)...5 Penn Nat l Gaming, Inc. v. Ratliff, 954 So. 2d 427 (Miss. 2007)...9 Smith v. Kan. City So. Ry. Co., 214 So. 3d 272 (Miss. 2017)...12 Tunica Cty. v. Hampton Co. Nat. l Sur., LLC, 27 So. 3d 1128 (Miss. 2009)...9 Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997 (Miss. 2004)...6 Wilkerson v. Goss, 113 So. 3d 544 (Miss. 2013)...11 Constitutional Provisions MISS. CONST. art. 4, MISS. CONST. art. 4, MISS. CONST. art. 4, Statutes and Rules MISS. CODE ANN passim (1)(a) (1)(b)...11, , 4, 8, (b) , 4, 9 M.R.C.P. 82(a)...8 M.R.C.P. 82(c)...7, 8, 9 iii

7 Other Authorities Jeffrey Jackson et al., Mississippi Civil Procedure (2017 ed.)...12 MS LEGIS 283 (2012), 2012 Miss. Laws Ch. 382 (H.B. 1162)...5 Model Registered Agents Act (2006)...10 iv

8 INTRODUCTION This action belongs in Rankin County. Alternatively, if the Court adopts the State s interpretation of the Registered Agents Act ( RAA ), MISS. CODE ANN , then the State s Mississippi Consumer Protection Act ( MCPA ) claims must be dismissed outright. The State does not dispute that under the plain language of Section 9 of the MCPA, actions like this one seeking injunctive relief under the MCPA shall be brought in the chancery or county court of the county in which [the defendant] resides or has his principal place of business. MISS. CODE ANN Traditionally, this meant that a foreign corporation with no principal place of business in Mississippi still could be subject to suit under Section 9 if the corporation had a registered agent in the State, since under this Court s venue jurisprudence such a corporation was deemed to reside in the county where its registered agent is located. But the State argues that a new statute, Section 15 of the RAA, dramatically changed the law, and that a foreign corporation without a principal place of business in Mississippi no longer resides in the county of its registered agent. State Br The inevitable conclusion of that interpretation is that even when a foreign corporation has a registered agent in Mississippi venue does not exist in Mississippi for MCPA Section 9 claims if the corporation, as in this case, does not also have a principal place of business in the State. Seeking to avoid the logical consequences of its own interpretation of the RAA, the State first makes a straw man argument that venue is proper under MCPA Section 9 because one of the defendants changed its registered agent after this lawsuit was filed. State Br. 1-2, That, of course, ignores this Court s longstanding precedent holding that proper venue is determined at the time the lawsuit is originally filed. Crenshaw v. Roman, 942 So. 2d 806, 809 (Miss. 2006) (emphasis added) (citation and internal quotation marks omitted). 1

9 Alternatively, the State urges this Court too enact a judicial fix: find that the RAA repealed MCPA Section 9, and employ a facially y inapplicable general venue provisio CODE C ANN. on, MISS But the State does not argue that the RAA expressly repealed Section 9 of the MCPA, nor does it attempt to satisfy the standard for repeal by implication. As for the expedient of adopting the facially inapplicable Section , this Court has held time and again that courts have neither the authority to write into the statute something whichh the legislators didd not write therein, nor to engraft upon it any exception not included by them. Balouch v. State, 938 So. 2d 253, 260 (Miss. 2006). In the end, it is the role of the Mississippi Legislature, not the courts, to addresss any unintended consequences of the RAA and the Legislature s decision not to include language that supports the State s position about venue. Defendants have offered a reasonable, practical alternative to outright dismissal: the Court can and should harmonize the RAA and Section 9 by finding that while a defendant s registered agent does not definitively determine venue, it can be a factor, particularly where the defendant otherwise consents to suit in the county of its registered agent. Absent an amendment to the statutes at issue by the Legislature, that is the only way this case can proceed in any Mississippi forum. This Court thus shouldd find that this case may proceed in Rankin County wheree two Defendants had registered agents at the time the case was originally filed. ARGUMENT I. THE MCPA VESTS ORIGINAL JURISDICTION FOR THE STATE S SECTION 9 CLAIMS EXCLUSIVELY IN CHANCERY OR COUNTY COURT WHERE DEFENDANTS RESIDE OR HAVE A PRINCIPAL PLACE OF BUSINESS The State does not dispute that under the plain language of Section 9, MCPA actions seeking injunctive relief shall be brought in thee chancery or county court of the county in which the defendant resides or has its principal place of business. Defs. Br. 8. And the State does not and cannot contend that any Defendant resides or has its principal place of business in 2

10 Hinds County. Nor does the State contest that Section 9 s use of the word shall is mandatory, in contrast to the permissive language used in other Mississippi venue statutes. See id. at 9. Instead, the State argues that the RAA repealed Section 9. Alternatively, the State argues that even if Section 9 governs this case, venue is still proper in Hinds County. The State is wrong on both counts. The RAA and Section 9 can and should be read in harmony to allow this case to be heard in Rankin County, where two Defendants had registered agents at the time this case was filed and where Defendants thus consented to transfer. A. The RAA Did Not Repeal MCPA Section 9 The State defends the trial court s holding that the RAA effectively overruled Section 9 of the MCPA for actions brought against a foreign corporation without a principal place of business in Mississippi. R ; R.E ; see State Br. 5 ( [A]fter the adoption of the RAA, Section of the MCPA did not contain valid criteria for determining venue for foreign corporations without a principal place of business in Mississippi. ); id. at 8 (similar). But the State does not even try to show that there was an express or implied repeal of Section 9. In order for a subsequent act to repeal a former one expressly, it must point out the statute repealed with sufficient certainty. Adams v. Miss. State Oil & Gas Bd., 139 So. 3d 58, 67 (Miss. 2014) (citation and internal quotation marks omitted); accord Carl Ronnie Daricek Living Trust v. Hancock Cty., 34 So. 3d 587, 598 (Miss. 2010) (same). It is undisputed that the RAA does not point out Section 9 of the MCPA at all. The relevant RAA provision, rather, provides in full: The appointment or maintenance in this state of a registered agent does not by itself create the basis for personal jurisdiction over the represented entity in this state. The address of the agent does not determine venue in an action or proceeding involving the entity. 3

11 MISS. CODE ANN If it was the purpose of the legislature to repeal a section of the Code... it should have said so explicitly in the repealing act. Carl Ronnie Daricek Living Trust, 34 So. 3d at (bracketing omitted). Nor does the State make any attempt to establish that the RAA impliedly repealed Section 9. That implied repeals are not favored has been the universal declaration of this and all other courts. Id. at 599 (citation and internal quotation marks omitted). Courts will not hold [an earlier statute to be] repealed by implication [by a later statute], unless there is a plain and unavoidable repugnancy between them. Adams, 139 So. 3d at 67 (citation and internal quotation marks omitted). Even when statutes are in apparent conflict, they should if possible be construed in harmony with each other to give effect to each. Carl Ronnie Daricek Living Trust, 34 So. 3d at 599 (citation and internal quotation marks omitted). There is no plain and unavoidable repugnancy between the RAA and Section 9. One states that an MCPA action seeking injunctive relief shall be brought in the chancery or county court of the county in which [the defendant] resides or has his principal place of business. MISS. CODE ANN The other provides that [t]he address of the agent does not determine venue in an action or proceeding involving the entity. MISS. CODE ANN In other words, one statute discusses where an MCPA Section 9 claim must be brought; the other addresses the role, if any, of a defendant s registered agent in determining venue generally. There is no conflict between these statutes at all, much less the sort of hopelessly unavoidable conflict that could justify a finding of implied repeal. Carl Ronnie Daricek Living Trust, 34 So. 3d at (no implied repeal because the two statutes at issue were not hopelessly in conflict ). And in the State s lengthy description of the RAA s legislative history, see infra Part I.C, there is not one indication that the Legislature even considered, much less intended to repeal, Section 9 of the MCPA. Indeed, the preamble to the RAA lists dozens of 4

12 Mississippi statutes that would be repealed and otherwise affected by the new legislation, and Section 9 does not appear. See MS LEGIS 283 (2012), 2012 Miss. Laws Ch. 382 (H.B. 1162). The State s only response is that the last expression of the Legislature must prevail over the former, and Defendants argument would have the MCPA s venue provision (the older statute) prevail over the RAA (the newer one). State Br. 17 n.12 (citing Parsons v. Miss. State Port Auth. at Gulfport, 996 So. 2d 165 (Miss. Ct. App. 2008)). The State overlooks, however, that this principle applies only when two statutes involve the same subject, and even then, if there is an apparent conflict, [the statutes] should if possible be construed in harmony with each other to give effect to each. Parsons, 996 So. 2d at 169. As noted, MCPA Section 9 and the RAA do not involve the same subject, there is no conflict between them, and in any case they can be read in harmony. See infra Part I.C. At bottom, the State is not asserting any real conflict between the RAA and Section 9, but rather resorting to a policy argument that this Court should avoid the consequences of the State s interpretation of the RAA namely, that the State is precluded... from enforcing the MCPA against a foreign corporation unless it consented to be sued in Hinds County. State Br. 18, 19. But this Court repeatedly has held that [t]he function of the Court is not to decide what a statute should provide, but to determine what it does provide. Lawson v. Honeywell Int l, Inc., 75 So. 3d 1024, 1027 (Miss. 2011); Edmonds v. State, -- So. 3d --, 2017 WL , at *3 (Miss. June 29, 2017) (quoting same). This Court cannot add to the plain meaning of the statute or presume the legislature failed to state something other than what was plainly stated. Lawson, 75 So. 3d at 1030 (citation, internal quotation marks, and alteration omitted); Balouch, 938 So. 2d at 260 ( The courts have neither the authority to write into the statute something which the legislators did not write therein, nor to engraft upon it any exception not included by them. ). In short, the mere fact that the Legislature may not have foreseen all of the consequences of a 5

13 statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning. Lockhard v. United States, 546 U.S. 142, 146 (2005) (citation and internal quotation marks omitted). B. Venue Is Improper in Hinds County Under Section 9 The State asserts that even if the RAA did not repeal MCPA Section 9, venue in Hinds County is still proper for two reasons. State Br Neither withstands scrutiny. First, the State argues that Cephalon s change of registered agent in May 2016 six months after the State filed this lawsuit renders Rankin County an improper forum. State Br. 1-2, But the State ignores this Court s decisions holding that proper venue is determined at the time the lawsuit is originally filed. Crenshaw v. Roman, 942 So. 2d 806, 809 (Miss. 2006) (emphasis added) (quoting Austin v. Wells, 919 So. 2d 961, 964 (Miss. 2006)); accord Wayne Gen. Hosp. v. Hayes, 868 So. 2d 997, 1002 (Miss. 2004) (same). Thus, in determining whether venue is proper, events subsequent to the filing of a lawsuit are of no consequence. Estate of Jones v. Quinn, 716 So. 2d 624, 628 (Miss. 1998); see Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155 (Miss. 1992) ( If venue is proper when and where suit is filed, it may not be ousted by later events. ); Holmes v. McMillan, 21 So. 3d 614, 618 (Miss. 2009) (finding venue improper in Hinds County because defendant resided in Rankin County at the time of the accident [giving rise to the suit] ). Here, it is undisputed that, at the time this lawsuit was originally filed in December 2015, Cephalon had its registered agent in Rankin County, not Hinds County. Defs. Br. 3. The post-suit change championed by the State is of no consequence. Estate of Jones, 716 So. 2d at In any event, service on the Secretary of State is merely the default rule for a corporation that withdraws its registered agent and has no governors to accept service in Mississippi. MISS. CODE ANN (b). The Secretary of State is not Cephalon s new registered agent but rather occupies a separate default position by operation of law. 6

14 Second, the State argues that Mississippi Rule of Civil Procedure 82(c) supports venue in Hinds County. But the State never mentioned Rule 82(c) in the trial court, and the trial court never addressed it. The argument is therefore waived. See Brocato v. Miss. Publishers Corp., 503 So. 2d 241, 244 (Miss. 1987) (holding that appellate courts may affirm on an alternative ground only if it was raised in the pleadings in the court below ). Waiver aside, the State s Rule 82(c) argument is contrary to this Court s precedent. According to the State, MISS. CODE ANN supplies venue in Hinds County for the State s non-mcpa common law claims, and Rule 82(c) allows a plaintiff to bring all its claims in any county in which any one of the claims could properly have been brought. State Br. 16 (quoting Miss. R. Civ. P. 82(c)). But this Court repeatedly has rejected the use of Rule 82(c) to circumvent mandatory venue provisions like MCPA Section 9. See Capital City Ins. Co. v. GB Boots Smith Corp., 889 So. 2d 505 (Miss. 2004); Crenshaw, 942 So. 2d 806. In Capital City Insurance, the Court rejected the argument that if venue is proper as to one claim or party under one venue statute, it is automatically proper for all claims and parties under Rule 82(c). 889 So. 2d at To the contrary, the Court held that venue statutes are rank[ed], and if venue is improper under a mandatory statute, neither a permissive statute nor Rule 82(c) can cure the problem. Id. Likewise, in Crenshaw, the Court held that [s]tatutory construction gives preference to one [venue] statute over the other. 942 So. 2d at 811. [T]herefore, had the Legislature intended for each statute to have equal footing or equal force then both statutes should have had the mandatory shall language. Accordingly, we find that mandatory language, shall, in the general venue statute, controls in this case over the permissive language, may found in [another venue statute]. Id. at 811 (citation, internal quotation marks, and alteration omitted). Crenshaw expressly rejected the argument that M.R.C.P. 82(c) allows venue to remain in [the plaintiff s 7

15 chosen forum]. Id. As the Court explained, Rule 82(c) does not support a plaintiff establishing venue under one statute when venue is improper under a separate mandatory statute. Id. That is the situation here: Section 9 s venue provision mandates that an MCPA action seeking injunctive relief shall be brought in one of the specified counties. MISS. CODE ANN Were there any doubt, Rule 82(a) provides that [t]hese rules shall not be construed to extend or limit the jurisdiction of the courts of Mississippi. But allowing a party to bring an MCPA injunctive-relief claim outside the mandatory forum specified in Section 9 would do just that. The State argued in the trial court and has argued in other cases before this Court that Section 9 s mandatory shall language vests original jurisdiction over the State s Section 9 claims exclusively in the chancery or county court. Section 9 unequivocally states that such actions shall be brought in the chancery or county court. MISS. CODE ANN (emphases added); see Defs. Br Notably, in other appeals before this Court, the State has affirmatively argued that Section 9 is a jurisdictional provision in place dictating the case be filed in only one of two courts. State of Mississippi s Pet. for Interlocutory Appeal in State v. CVS Health Corp., No M536 (Apr. 18, 2017) at 1; see also, e.g., id. at 8 (arguing that Section 9 declares that the Attorney General can only bring a suit for injunctive relief under the MCPA in chancery or county court, not in circuit court ); id. at 7 (similar). In its Complaint in this very case, the State identified Section 9 as the basis for jurisdiction. R. 48 (Compl. 25). Yet now without confronting its own position on Section 9 s jurisdictional nature in this case and others the State argues that Rule 82(c) expands jurisdiction to forums other than the chancery or county court of the county in which [the defendant] resides or has his principal place of business. MISS. CODE ANN The State s argument should be rejected. 8

16 Simply put, cases like Capital City Insurance and Crenshaw are grounded on the principle that the legislative power of this state resides exclusively in the Legislature, MISS. CONST. art. 4, 33, and that includes the power to enact general laws addressing venue, id. 88, 90. Rule 82(c) should be construed to avoid conflict with this principle. C. The Court Can and Should Harmonize the RAA and MCPA Section 9 The State spends most of its brief arguing that the RAA overruled this Court s decision in Penn National Gaming, Inc. v. Ratliff, 954 So. 2d 427 (Miss. 2007), and the longstanding rule that a foreign corporation with no principal place of business in Mississippi is deemed to reside for venue purposes in the county where its registered agent is located. State Br The Court should reject that view. The plain text of the RAA allows for a more practical interpretation. The RAA states that the address of the agent does not determine venue in an action or proceeding involving the entity. MISS. CODE ANN (emphasis added). There is one reading of this language that avoids dismissal of MCPA Section 9 actions like this one brought against foreign corporations without a principal place of business in Mississippi: that the location of a defendant s registered agent does not, by itself, determine venue. In other words, while the address of a registered agent is not dispositive in a venue analysis, it can still be relevant. This more practical interpretation would allow the Court to regard the location of two Defendants registered agents at the time the suit was filed, Rankin County, as the closest available proxy for residence and thus read the statutes in harmony with each other to give effect to each. Tunica Cty. v. Hampton Co. Nat. l Sur., LLC, 27 So. 3d 1128, 1133 (Miss. 2009) (citation and internal quotation marks omitted); see also Carl Ronnie Daricek Living Trust, 34 So. 3d at 599. Nothing in the so-called legislative history relied upon by the State forecloses this harmonizing interpretation. For one, this Court has recognized that legislative intent can be 9

17 deduced from legislative acts alone.... Testimony to explain the motives which operated upon the law-makers, or to point out the objects they had in view, is wholly inadmissible. Miss. Gaming Comm n v. Imperial Palace of Miss., Inc., 751 So. 2d 1025, 1028 (Miss. 1999) (citation omitted); see also id. (finding trial court erred in taking testimony from legislators on intent of statute). Here, the State s legislativee history is even more tenuous because it does not even involve statements by law-makers but instead by a group of private lawyers and law professorss who made up the Secretary of State s Study Group. The State tries to backdoor the Study Groupp materials in because they reference a model act, State Br. 11 n.7, but the Model Registered Agents Act does not address the peculiarities of Mississippi law. If anything, the comments to that model act warned state legislatures that adoption of the RAA could impact other venue laws, and thus existing law on venue should be reviewed when this Act is considered for adoption in a state. R ; R.E (Model Registered Agentss Act 15 cmt. (2006)). If any inference can be drawn from the model act, it is that the Mississippi Legislature considered the RAA s effect on Section 9 and chose not to amend either statute to avoid the consequences the State decries here. II. VENUE IS IMPROPER UNDER MISSISSIPPI CODE SECTION The State also errs in arguing that the court below properly applied Section to find venue appropriate in Hinds County. State Br. 17. The State argues that Section is not limited to actions initially brought in circuitt court. State Br. 17. But that is a straw man, since Defendants never argued that Section was so limited. Instead, as Defendants opening brief explained, Section can apply to actions brought in chancery court, but only wheree the circuit court would have had original jurisdiction. Defs. Br. 11. The corollary also is true: Section cannot apply where, as here, the circuit court would have lacked jurisdiction as a result of MCPA Section 9. Indeed, the 100

18 State acknowledges that Section [(1)](a) is restricted to civil actions of which the circuit has original jurisdiction. State Br. 17 n.13. For the same reason, the State s reliance on Wilkerson v. Goss, 113 So. 3d 544 (Miss. 2013), and similar cases is unavailing. State Br. 18. As the State acknowledges, it is factually accurate that the circuit court would have had original jurisdiction of those actions. Id. at 18 n.15. Those cases accordingly provide no support for applying Section to an action brought in chancery court in which the circuit court would have lacked original jurisdiction. The State argues in a footnote that Section s limitation to actions of which the circuit court has original jurisdiction applies only to subparagraph (a) and not to subparagraph (b). State Br. 17 n.13. That is incorrect. Those provisions state: (1) (a) (i) Civil actions of which the circuit court has original jurisdiction shall be commenced [1] in the county where the defendant resides, or, [2] if a corporation, in the county of its principal place of business, or [3] in the county where a substantial alleged act or omission occurred or [4] where a substantial event that caused the injury occurred.... (b) If venue in a civil action against a nonresident defendant cannot be asserted under paragraph (a) of this subsection (1), a civil action against a nonresident may be commenced in the county where the plaintiff resides or is domiciled. MISS. CODE ANN (1)(a), (b). The State misconstrues the two subparagraphs. Read naturally, paragraph (b) addresses the same category of cases to which paragraph (a) applies namely, cases of which the circuit court has original jurisdiction. In such cases, paragraph (b) simply provides an additional venue option where none of the four options set forth in paragraph (a) is available. Unsurprisingly, then, the leading treatise on Mississippi civil procedure describes the plaintiff s home county 11

19 option of paragraph (b) as applying only in rare circumstances, namely actions in circuit court where none of the four venue criteria in paragraph (a) are met. Jeffrey Jackson et al., Mississippi Civil Procedure 3:11 (2017 ed.); see Smith v. Kan. City So. Ry. Co., 214 So. 3d 272, 275 (Miss. 2017) (stating that Section (1) applies to circuit court actions brought against a nonresident defendant). The State, for its part, cites no case holding that paragraph (b) applies to actions that fall outside the original jurisdiction of the circuit court, and none exists. That makes sense, since the State s interpretation simply is not tenable in light of the [statute s] surrounding provisions. Gade v. Nat l Solid Wastes Mgmt. Ass n, 505 U.S. 88, 99 (1992). The State s erroneous reading would produce a sweeping authorization for venue in a plaintiff s home county not only in circuit court cases that fall outside the four options of paragraph (a), but also in every case against a non-resident, regardless of whether the circuit court would have original jurisdiction. That would undermine the Legislature s choice not to provide such a venue option in the general venue statute for the chancery court, MISS. CODE ANN That statute specifies venue options for chancery court actions and does not authorize venue in the plaintiff s home county. See id. Worse, the State s reading of Section (1)(b) would gut the specific and mandatory venue language in MCPA Section 9 with respect to claims against non-residents, reversing the well-settled rule that the terms of a specific venue statute prevail over those in a general one. Guice v. Miss. Life Ins. Co., 836 So. 2d 756, 759 (Miss. 2003); see also Office of Governor Div. of Medicaid v. Johnson, 950 So. 2d 1033, 1035 (Miss. Ct. App. 2006) (recognizing rule). The State s reliance on Section 17 of the MCPA also is misplaced. State Br. 19. Section 17 authorizes the Attorney General to bring an action to compel compliance with a subpoena issued under the MCPA, and provides for venue in the chancery or county court of the county in 12

20 which such person resides or has his principal place of business, or if the person be absent or a nonresident of the State of Mississippi, of such court of the county in which the state capitol is located. MISS. CODE ANN Rather than support the State s position, Section 17 demonstrates that when the Legislature wants to provide for venue in Hinds County in actions brought against a nonresident of the State of Mississippi, it knows how to do so. Id.; see City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992) ( [T]he omission of language from a similar provision on a similar subject indicates that the legislature had a different intent in enacting the provisions, which it manifested by the omission of the language. ). The crux of the State s position is that this Court should apply Section because the State does not like the consequences of its own interpretation of the RAA. This Court should reject the invitation. Even though Section (unlike MCPA Section 9) includes criteria other than the location of a defendant s registered agent, State Br. 17, that is no justification for applying the statute in a case where, by its plain terms, it does not apply. 13

21 CONCLUSION For the foregoing reasons, and those set forth in Defendants opening brief, the trial court s order refusing to transfer venue should be reversed with instructions to transfer this case to Rankin County. RESPECTFULLY SUBMITTED, this the 7th day of February, ENDO HEALTH SOLUTIONS INC. and ENDO PHARMACEUTICALS INC. /s/ J. Carter Thompson Jr. J. Carter Thompson, Jr., Esq. (MSB No. 8195) David F. Maron, Esq. (MSB No ) Samuel D. Gregory, Esq. (MSB No ) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ One Eastover Center 100 Vision Drive, Suite 400 Jackson, Mississippi Telephone: (601) Facsimile: (601) cthompson@bakerdonelson.com dmaron@bakerdonelson.com sdgregory@bakerdonelson.com -and- Joshua M. Davis, Esq. (admitted pro hac vice) ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC Telephone: (202) joshua.davis@arnoldporter.com CEPHALON, INC., TEVA PHARMACEUTICALS USA, INC., WATSON LABORATORIES, INC.,ACTAVIS LLC, and ACTAVIS PHARMA, INC. f/k/a WATSON PHARMA, INC. /s/ Stephen L. Thomas Stephen L. Thomas, Esq. (MSB No. 8309) Alan W. Perry, Esq. (MSB No. 4127) Simon Turner Bailey, Esq. (MSB No ) Bradley Arant Boult Cummings LLP One Jackson Place 188 E. Capitol Street, Suite 400 Jackson, MS Telephone: (601) Facsimile: (601) sthomas@babc.com aperry@babc.com sbailey@babc.com -and- Steven A. Reed, Esq. (admitted pro hac vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA Telephone: (215) sreed@morganlewis.com JOHNSON & JOHNSON; JANSSEN PHARMACEUTICALS, INC.; ORTHO- McNEIL-JANSSEN PHARMACEUTICALS, INC. n/k/a JANSSEN PHARMACEUTICALS, INC.; JANSSEN PHARMACEUTICA, INC. n/k/a JANSSEN PHARMACEUTICALS, INC. /s/ Chad R. Hutchinson Chad R. Hutchinson, Esq. (MSB No ) Adam J. Spicer, Esq. (MSB No ) 14 Brian M. Ercole (admitted pro hac vice) MORGAN, LEWIS & BOCKIUS LLP 200 S. Biscayne Blvd., Suite 5300 Telephone: (305) Miami, FL bercole@morganlewis.com PURDUE PHARMA L.P.; PURDUE PHARMA, INC.; and

22 BUTLER SNOW LLP 1020 Highland Colony Parkway, Ste Ridgeland, MS Telephone: (601) Facsimile: (601) and- Charles C. Lifland, Esq. (admitted pro hac vice) O MELVENY & MYERS LLP 400 S. Hope Street Los Angeles, CA Telephone: (213) Facsimile: (213) clifland@omm.com THE PURDUE FREDERICK COMPANY, INC. /s/ Joseph Anthony Sclafani R. David Kaufman, Esq., (MSB No. 3526) Joseph A. Sclafani, Esq., (MSB No ) Brunini, Grantham, Grower & Hewes, PLLC The Pinnacle Building, Suite E. Capitol Street (39201) Post Office Drawer 119 Jackson, Mississippi Telephone: (601) Facsimile: (601) dkaufman@brunini.com jsclafani@brunini.com -and- Christopher A. Shapley, Esq. (MSB No. 6733) 111 Woodmont Way Ridgeland, MS chrisshapley0@gmail.com -and- Patrick J. Fitzgerald, Esq. (admitted pro hac vice) SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 155 N. Wacker Drive, Suite 2700 Chicago, IL Telephone: (312) patrick.fitzgerald@skadden.com 15

23 CERTIFICATE OF SERVICE I, the undersigned attorney of record, do hereby certify that I have this the 7th day of February, 2018 filed the foregoing document with the Clerk of the Court using the MEC system, which will deliver copies to all counsel of record: Hon. Jim Hood George W. Neville Geoffrey Morgan Jaqueline H. Ray Samuel Martin Millette Office of the Attorney General Post Office Box High Street, Suite 1200 Jackson, MS John L. Davidson Davidson Bowie PLLC 2506 Lakeland Drive Flowood, MS Steve W. Berman Jennifer Fountain Connolly Hagens Berman Sobol Shapiro LLP 1701 Pennsylvania Ave. NW Suite 300 Washington, D.C Joe N. Tatum Tatum Wade PLLC 124 East Amite Street Jackson, MS James L. Ward McGowan Hood Felder LLC 321 Wingo Way Suite 103 Mount Pleasant, SC and that I have caused a true and correct copy of the foregoing to be delivered to the following by United States Mail, first-class postage prepaid: Honorable Judge Denise Owens P.O. Box 686 Jackson, MS /s/j. Carter Thompson, Jr. J. Carter Thompson, Jr. 1