Amici Curiae Brief in Support of Henrietta Lacks Estate [v. Ultragenyx]

Abstract

This Amici brief addresses the law of restitution and its proper application to claims in this case. It refutes defendant’s contention that plaintiff has failed to state a valid unjust enrichment cause of action for restitution relief. Defendant is mistaken about the fundamentals of restitution law. It incorrectly assumes that restitution is a unitary private action. United under the principle of preventing unjust enrichment, restitution is a pluralistic subject with many differing subject heads.

Some subjects are passive; others are intentional. Defendant’s overarching mistake is to take a piece of restitution in one subject area and apply it in another. Defendant asserts that the Estate’s restitution action requires a tort, which is incorrect. It then argues erroneously that bona fide purchaser doctrine is a defense to all restitution remedies. All the defendant’s arguments are flawed and not barriers to the Estate’s relief. The Estate’s suit is a freestanding unjust enrichment claim seeking a restitution for a wrong. For this wrong, the Estate seeks disgorgement of defendant’s profits. The law of restitution and unjust enrichment supports the Estate’s cause of action and the remedy it seeks.

These errors of understanding infect all of defendant’s points in its first argument that plaintiff fails to state a claim of unjust enrichment. First, the law of unjust enrichment covers defendant’s receipt of money from third parties. Second, the wrongs that the plaintiff alleges against the defendant continue to occur every day and thus are not too remote. Third, plaintiff need not show that defendant was a bona fide purchaser to recover a restitution award of disgorgement of defendant’s unjust profits. Last, an unjust enrichment claim for restitution relief does not require a plaintiff to allege an actionable underlying tort. The governing law of unjust enrichment and restitution amply supports the viability of plaintiff’s claim for restitution.

Restitution is a body of substantive law that is separate and distinct from the law of tort, contract, property, or other bodies of substantive law. Restitution has developed in the common law over hundreds of years and has evolved to fashion appropriate liability and relief in a wide variety of factual circumstances. Restitution remedies are available for breaches of varied underlying claims including, for example, unjust enrichment, torts, contracts, fiduciary duty, and intellectual property. The underlying premise of the law of restitution is clear: “A person who is unjustly enriched at the expense of another is subject to liability in restitution.” Restatement of Restitution § 1 (Am. Law. Inst. 2011). Conscious wrongdoers are liable in restitution to disgorge net profits gained from an underlying wrong. Plaintiff’s complaint seeks exactly that remedy to disgorge this defendant’s unjust gains. That is entirely proper.

Keywords: restitution, unjust enrichment, disgorgement, unjust gain, wrongful profits, remedies, wrongdoing, consent, unwanted medical procedure, immortal cell line, bioethics