pro hac vice williams & connolly llp€¦ · 2. paragraph 2 asserts legal conclusions to which...
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Enu Mainigi (Pro Hac Vice) Luba Shur (Pro Hac Vice) Grant A. Geyerman (Pro Hac Vice) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, N.W. Washington, DC 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Edward W. Swanson (State Bar No. 159859) August Gugelmann (State Bar No. 240544) SWANSON & McNAMARA LLP 300 Montgomery Street, Suite 1100 San Francisco, CA 94104 Telephone: (415) 477-3800 Facsimile: (415) 477-9010 Attorneys for CVS Pharmacy, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
CHRISTOPHER CORCORAN, et al., Plaintiffs, v. CVS PHARMACY, INC., Defendant.
No. 15-CV-03504-YGR CLASS ACTION DEFENDANT CVS PHARMACY, INC.’S ANSWER TO PLAINTIFFS’ THIRD AMENDED CLASS ACTION COMPLAINT
Case 4:15-cv-03504-YGR Document 144 Filed 08/12/16 Page 1 of 43
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- 1 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
Defendant CVS Pharmacy, Inc. (“Defendant”), by undersigned counsel, hereby answers
Plaintiffs’ Third Amended Class Action Complaint (“Complaint”) [Dkt. No. 101]. Specifically,
in response to the numbered paragraphs included in the Complaint, Defendant admits, denies, or
otherwise responds to the allegations as set forth below. All allegations are denied unless
expressly admitted, and an admission to a portion of an allegation does not constitute an
admission, either express or implied, to the remainder of the allegation.
I. INTRODUCTION
1. Defendant admits only that Plaintiffs purport to bring claims individually and on
behalf of a putative class against Defendant. However, Defendant denies that Plaintiffs have any
valid claims against it or that Plaintiffs are entitled to the requested relief. Defendant denies all
other allegations in Paragraph 1.
II. NATURE OF THE ACTION
2. Paragraph 2 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 2.
3. CVS Health Corporation’s Form 10-Q (filed Aug. 4, 2015, for the period ending
June 30, 2015) speaks for itself; Paragraph 3 therefore requires no response. To the extent a
response is required, Defendant denies the allegations in Paragraph 3.
4. Regarding the first sentence of Paragraph 4, Defendant admits that CVS
Pharmacy, Inc., as of December 31, 2015, by and through its subsidiaries, operated
approximately 9,600 retail pharmacies in the United States and Puerto Rico, more than 1,100
walk-in health care clinics, and a pharmacy benefit manager with more than 75 million plan
members. Regarding the second sentence, Defendant admits that, during 2015, CVS pharmacies
filled approximately 1 billion prescriptions and held approximately 21.7% of the United States
retail pharmacy market. Further, Defendant admits that CVS pharmacies currently have
approximately 5 million customers a day. Defendant denies all other allegations in Paragraph 4.
5. Regarding the first sentence of Paragraph 5, Defendant admits that, in June 2015,
CVS Health Corporation and Target Corporation (“Target”) announced a definitive agreement
reflecting CVS Health Corporation’s intention to acquire Target’s pharmacy and clinic
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- 2 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
businesses, a transaction that would involve adding over 1,650 pharmacies to CVS’s pharmacy
network. Regarding the second sentence, Defendant admits that with the addition of the Target
pharmacies, CVS operates more retail pharmacies in the United States than any other company.
Defendant denies all other allegations in Paragraph 5.
6. Defendant admits that CVS Health Corporation reported, for the Retail Pharmacy
Segment of the CVS Health Corporation family of entities, for the year ending December 31,
2014, (1) net revenues of $67.8 billion and (2) that 70.7% of net revenues were attributable to the
pharmacy portion of the business (in contrast to, for example, front-of-store sales). Defendant
denies all other allegations in Paragraph 6.
7. Regarding the first sentence of Paragraph 7, Defendant admits this action
concerns CVS’s usual and customary (“U&C”) pricing of generic drugs included on the Health
Savings Pass (“HSP”) formulary. Regarding the second sentence, Defendant admits that a
generic drug is bioequivalent to its corresponding brand-name drug. The third and fourth
sentences assert legal conclusions to which no response is required; to the extent a response is
required, Defendant denies the allegations in the third and fourth sentences. Defendant lacks
sufficient knowledge to admit or deny the allegations in the fifth and sixth sentences. Defendant
denies all other allegations in Paragraph 7.
8. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 8. Regarding the second, third and fourth sentences, Defendant admits
that cost-sharing between an insured, the insured’s payor, and/or the payor’s pharmacy benefits
manager (“PBM”) is a feature of many prescription drug insurance plans; a pharmacy’s total
reimbursement for a dispensed prescription may be paid by the insured, the payor, and/or the
PBM depending on the plan; payment from the insured may take the form of a copayment; and
copayments are collected from the insured customer at the time the customer obtains the
prescription from the pharmacy. The fifth sentence asserts a legal conclusion to which no
response is required insofar as it alleges that “the copay cannot exceed CVS’s usual and
customary price;” however, Defendant admits the National Council for Prescription Drug
Programs’ (“NCPDP”) Telecommunication Standard defines Field 426-DQ, “Usual and
Case 4:15-cv-03504-YGR Document 144 Filed 08/12/16 Page 3 of 43
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- 3 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
Customary Charge,” as “Amount charged cash customers for the prescription exclusive of sales
tax or other amounts claimed.” Defendant denies all other allegations in Paragraph 8.
9. Defendant denies the allegations in Paragraph 9.
10. The first sentence of Paragraph 10 asserts a legal conclusion to which no response
is required; to the extent a response is required, Defendant denies the allegations in the first
sentence. Regarding the second, third and fourth sentences, Defendant admits that cost-sharing
between an insured, the insured’s payor, and/or the payor’s PBM is a feature of many
prescription drug insurance plans; a pharmacy’s total reimbursement for a dispensed prescription
may be paid by the insured, the payor, and/or a PBM depending on the plan; payment from an
insured may take the form of a copayment; and copayments are collected from an insured
customer at the time the customer obtains the prescription from the pharmacy. The fifth sentence
asserts a legal conclusion to which no response is required; to the extent a response is required,
Defendant denies the allegations the fifth sentence. Defendant denies all other allegations in
Paragraph 10.
11. Regarding the first sentence of Paragraph 11, Defendant admits that CVS
pharmacies commonly submit to PBMs electronic claims during the adjudication process for
prescriptions of customers with prescription drug insurance. The second sentence of Paragraph
11 asserts a legal conclusion to which no response is required. Defendant denies the allegations
in the third, fourth, and fifth sentences. Defendant lacks sufficient knowledge to admit or deny
the allegations in the sixth sentence of Paragraph 11. Defendant denies all other allegations in
Paragraph 11.
12. Paragraph 12 asserts a legal conclusion to which no response is required insofar
as it alleges what CVS “should have reported” as the U&C price; to the extent a response is
required, Defendant denies the allegation. Defendant also denies “the HSP price was (and is) the
price CVS charged for cash customers not paying with insurance,” as well as all other allegations
in Paragraph 12.
13. Defendant admits that CVS did not report its HSP program price as its U&C price
for drugs included on the HSP formulary but denies the remaining allegations in Paragraph 13.
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- 4 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
14. Defendant denies the allegations in Paragraph 14.
15. Defendant denies the allegations in Paragraph 15.
III. PARTIES
A. Plaintiffs
16. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 16. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 16 does not specify the “four monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Corcoran has filled multiple prescriptions at CVS
pharmacies in California since 2002 and that those prescriptions are associated with multiple
National Drug Codes (“NDCs”) and (2) denies that its U&C prices for 30-day supplies of HSP-
eligible drugs were 33% of the drugs’ HSP program price. Regarding the third sentence,
Defendant admits that Mr. Corcoran’s prescription records show third-party payors involved
with at least some prescriptions filled at CVS but lacks sufficient knowledge to admit or deny the
remaining allegations in the third sentence. The sixth sentence asserts a legal conclusion to
which no response is required; to the extent a response is required, Defendant denies the
sentence’s allegations. Defendant denies the allegations in the seventh, eighth, and ninth
sentences. Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s allegation
concerning Mr. Corcoran future intentions and it denies all remaining allegations in that
sentence. Defendant denies all other allegations in Paragraph 16.
17. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 17. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 17 does not specify the “one monthly
maintenance medication” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Ms. Gardner has filled multiple prescriptions at CVS pharmacies
in California since 2015 and (2) denies that its U&C prices for 30-day supplies of HSP-eligible
drugs were 33% of the drugs’ HSP program price. Regarding the third sentence, Defendant
admits that Ms. Gardner’s prescription records show a third-party payor involved with
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- 5 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
prescriptions filled at CVS but lacks sufficient knowledge to admit or deny the remaining
allegations in the third sentence. The sixth sentence asserts a legal conclusion to which no
response is required; to the extent a response is required, Defendant denies the sentence’s
allegations. Defendant denies the allegations in the seventh, eighth, and ninth sentences.
Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s allegation concerning
Ms. Gardner’s future intentions and it denies all remaining allegations in that sentence.
Defendant denies all other allegations in Paragraph 17.
18. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 18. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 18 does not specify the “one monthly
maintenance medication” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Clark has filled multiple prescriptions at CVS pharmacies in
California since 2001 and that those prescriptions are associated with multiple NDCs, and (2)
denies that its U&C prices for 30-day and 90-day supplies of HSP-eligible drugs were 33% and
100%, respectively, of the drugs’ HSP program price. Regarding the third sentence, Defendant
admits that Mr. Clark’s prescription records show third-party payors involved with at least some
prescriptions filled at CVS but lacks sufficient knowledge to admit or deny the remaining
allegations in the third sentence. The sixth sentence asserts a legal conclusion to which no
response is required; to the extent a response is required, Defendant denies the sentence’s
allegations. Defendant denies the allegations in the seventh, eighth, and ninth sentences.
Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s allegation concerning
Mr. Clark’s future intentions and it denies all remaining allegations in that sentence. Defendant
denies all other allegations in Paragraph 18.
19. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 19. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 19 does not specify the “one monthly
maintenance medication” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Norkus has filled multiple prescriptions at CVS pharmacies
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- 6 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
in California since 2004 and that those prescriptions are associated with multiple NDCs and (2)
denies that its U&C prices for 30-day and 90-day supplies of HSP-eligible drugs were 33% and
100%, respectively, of the drugs’ HSP program price. Regarding the third sentence, Defendant
admits that Mr. Norkus’s prescription records show third-party payors involved with at least
some prescriptions filled at CVS but lacks sufficient knowledge to admit or deny the remaining
allegations in the third sentence. The sixth sentence asserts a legal conclusion to which no
response is required; to the extent a response is required, Defendant denies the sentence’s
allegations. Defendant denies the allegations in the seventh, eighth, and ninth sentences.
Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s allegation concerning
Mr. Norkus’s future intentions and it denies all remaining allegations in that sentence.
Defendant denies all other allegations in Paragraph 19.
20. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 20. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 20 does not specify the “three monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Ms. Avis has filled multiple prescriptions at CVS pharmacies in
Arizona since 2002 and that those prescriptions are associated with multiple NDCs and (2)
denies that its U&C prices for 30-day supplies of HSP-eligible drugs were 33% of the drugs’
HSP program price. Regarding the third sentence, Defendant admits that Ms. Avis’s prescription
records show third-party payors involved with at least some prescriptions filled at CVS but lacks
sufficient knowledge to admit or deny the remaining allegations in the third sentence. The sixth
sentence asserts a legal conclusion to which no response is required; to the extent a response is
required, Defendant denies the sentence’s allegations. Defendant denies the allegations in the
seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge to admit or deny the
tenth sentence’s allegation concerning Ms. Avis’s future intentions and it denies all remaining
allegations in that sentence. Defendant denies all other allegations in Paragraph 20.
21. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 21. Defendant lacks sufficient knowledge to admit or deny the allegations
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- 7 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
in the second, fourth, and fifth sentences, as Paragraph 21 does not specify the “five monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Garber has filled multiple prescriptions at CVS pharmacies
in Massachusetts since 2001 and that those prescriptions are associated with multiple NDCs and
(2) denies that its U&C prices for 30-day supplies of HSP-eligible drugs were 33% of the drugs’
HSP program price. Regarding the third sentence, Defendant admits that Dr. Garber’s
prescription records show third-party payors involved with at least some prescriptions filled at
CVS but lacks sufficient knowledge to admit or deny the remaining allegations in the third
sentence. The sixth sentence asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the sentence’s allegations. Defendant denies the
allegations in the seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge to
admit or deny the tenth sentence’s allegation concerning Mr. Garber’s future intentions and it
denies all remaining allegations in that sentence. Defendant denies all other allegations in
Paragraph 21.
22. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 22. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 22 does not specify the “two monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Ms. Odorisio has filled multiple prescriptions at CVS pharmacies
in New York since 2001 and that those prescriptions are associated with multiple NDCs and (2)
denies that its U&C prices for 30-day supplies of HSP-eligible drugs were 33% of the drugs’
HSP program price. Regarding the third sentence, Defendant admits that Ms. Odorisio’s
prescription records show third-party payors involved with at least some prescriptions filled at
CVS but lacks sufficient knowledge to admit or deny the remaining allegations in the third
sentence. The sixth sentence asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the sentence’s allegations. Defendant denies the
allegations in the seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge to
admit or deny the tenth sentence’s allegation concerning Ms. Odorisio’s future intentions and it
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- 8 - DEFENDANT’S ANSWER TO THE THIRD
AMENDED COMPLAINT 15-CV-03504-YGR
denies all remaining allegations in that sentence. Defendant denies all other allegations in
Paragraph 22.
23. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 23. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 23 does not specify the “three monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Guarnieri has filled multiple prescriptions at CVS
pharmacies in New York since 2001 and that those prescriptions are associated with multiple
NDCs and (2) denies that its U&C prices for 30-day and 90-day supplies of HSP-eligible drugs
were 33% and 100%, respectively, of the drugs’ HSP program price. Regarding the third
sentence, Defendant admits that Mr. Guarnieri’s prescription records show third-party payors
involved with at least some prescriptions filled at CVS but lacks sufficient knowledge to admit
or deny the remaining allegations in the third sentence. The sixth sentence asserts a legal
conclusion to which no response is required; to the extent a response is required, Defendant
denies the sentence’s allegations. Defendant denies the allegations in the seventh, eighth, and
ninth sentences. Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s
allegation concerning Mr. Guarnieri’s future intentions and it denies all remaining allegations in
that sentence. Defendant denies all other allegations in Paragraph 23.
24. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 24. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 24 does not specify the “two monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Ms. Samuelson has filled multiple prescriptions at CVS
pharmacies in New York since 1999 and that those prescriptions are associated with multiple
NDCs and (2) denies that its U&C prices for 30-day and 90-day supplies of HSP-eligible drugs
were 33% and 100%, respectively, of the drugs’ HSP program price. Regarding the third
sentence, Defendant admits that Ms. Samuelson’s prescription records show third-party payors
involved with at least some prescriptions filled at CVS but lacks sufficient knowledge to admit
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- 9 - DEFENDANT’S ANSWER TO THE THIRD
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or deny the remaining allegations in the third sentence. The sixth sentence asserts a legal
conclusion to which no response is required; to the extent a response is required, Defendant
denies the sentence’s allegations. Defendant denies the allegations in the seventh, eighth, and
ninth sentences. Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s
allegation concerning Ms. Samuelson’s future intentions and it denies all remaining allegations
in that sentence. Defendant denies all other allegations in Paragraph 24.
25. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 25. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 25 does not specify the “two monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Jenks has filled multiple prescriptions at CVS pharmacies in
Florida and Illinois since 2013 and that those prescriptions are associated with multiple NDCs
and (2) denies that its U&C prices for 30-day and 90-day supplies of HSP-eligible drugs were
33% and 100%, respectively, of the drugs’ HSP program prices. Regarding the third sentence,
Defendant admits that Mr. Jenks’s prescription records show third-party payors involved with at
least some prescriptions filled at CVS but lacks sufficient knowledge to admit or deny the
remaining allegations in the third sentence. The sixth sentence asserts a legal conclusion to
which no response is required; to the extent a response is required, Defendant denies the
sentence’s allegations. Defendant denies the allegations in the seventh, eighth, and ninth
sentences. Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s allegation
concerning Mr. Jenks’s future intentions and it denies all remaining allegations in that sentence.
Defendant denies all other allegations in Paragraph 25.
26. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 26. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 26 does not specify the “four monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Ms. Barrett has filled multiple prescriptions at CVS pharmacies
in Florida since 2008 and that those prescriptions are associated with multiple NDCs and (2)
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denies that its U&C prices for 30-day, 60-day, and 90-day supplies of HSP-eligible drugs were
33%, 66% and 100%, respectively, of the drugs’ HSP program prices. Regarding the third
sentence, Defendant admits that Ms. Barrett’s prescription records show third-party payors
involved with at least some prescriptions filled at CVS but lacks sufficient knowledge to admit
or deny the remaining allegations in the third sentence. The sixth sentence asserts a legal
conclusion to which no response is required; to the extent a response is required, Defendant
denies the sentence’s allegations. Defendant denies the allegations in the seventh, eighth, and
ninth sentences. Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s
allegation concerning Ms. Barrett’s future intentions and it denies all remaining allegations in
that sentence. Defendant denies all other allegations in Paragraph 26.
27. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 27. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 27 does not specify the “monthly
maintenance medication” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Washington has filled multiple prescriptions at CVS
pharmacies in Illinois since 2006 and that those prescriptions are associated with multiple NDCs
and (2) denies that its U&C prices for a 30-day supply of HSP-eligible drugs were 33% of the
drugs’ HSP program price. Regarding the third sentence, Defendant admits that Mr.
Washington’s prescription records show a third-party payor involved with at least some
prescriptions filled at CVS but lacks sufficient knowledge to admit or deny the remaining
allegations in the third sentence. The sixth sentence asserts a legal conclusion to which no
response is required; to the extent a response is required, Defendant denies the sentence’s
allegations. Defendant denies the allegations in the seventh, eighth, and ninth sentences.
Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s allegation concerning
Mr. Washington’s future intentions and it denies all remaining allegations in that sentence.
Defendant denies all other allegations in Paragraph 27.
28. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 28. Defendant lacks sufficient knowledge to admit or deny the allegations
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in the second, fourth and fifth sentences, as Paragraph 28 does not specify the “two . . .
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Podgorny has filled multiple prescriptions at CVS
pharmacies in Illinois since 2008 and that those prescriptions are associated with multiple NDCs
and (2) denies that its U&C prices for HSP-eligible drugs were the drugs’ HSP program price.
Regarding the third sentence, Defendant admits that Mr. Podgorny’s prescription records show a
third-party payor involved with at least some prescriptions filled at CVS but lacks sufficient
knowledge to admit or deny the remaining allegations in the third sentence. The sixth sentence
asserts a legal conclusion to which no response is required; to the extent a response is required,
Defendant denies the sentence’s allegations. Defendant denies the allegations in the seventh,
eighth, and ninth sentences. Defendant lacks sufficient knowledge to admit or deny the tenth
sentence’s allegation concerning Mr. Podgorny’s future intentions and it denies all remaining
allegations in that sentence. Defendant denies all other allegations in Paragraph 28.1
29. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 29. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth and fifth sentences, as Paragraph 29 does not specify the “two monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Gargiulo has filled multiple prescriptions at CVS pharmacies
in New Jersey since 2004 and that those prescriptions are associated with multiple NDCs but (2)
denies that its U&C prices for 30-day and 90-day supplies of HSP-eligible drugs were 33% and
100%, respectively, of the drugs’ HSP program price. Regarding the third sentence, Defendant
admits that Mr. Gargiulo’s prescription records show third-party payors involved with at least
some prescriptions filled at CVS but lacks sufficient knowledge to admit or deny the remaining
allegations in the third sentence. The sixth sentence asserts a legal conclusion to which no
response is required; to the extent a response is required, Defendant denies the sentence’s
1 Plaintiffs have informed CVS that Mr. Podgorny is withdrawing as a putative class representative.
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allegations. Defendant denies the allegations in the seventh, eighth, and ninth sentences.
Defendant lacks sufficient knowledge to admit or deny the tenth sentence’s allegation concerning
Mr. Gargiulo’s future intentions and it denies all remaining allegations in that sentence.
Defendant denies all other allegations in Paragraph 29.
30. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 30. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 30 does not specify the “one monthly
maintenance mediation” to which it refers; however, Defendant (1) admits only that prescription
records reflect that Mr. Hagert has filled multiple prescriptions at CVS pharmacies in
Pennsylvania since 2008 and that those prescriptions are associated with multiple NDCs and (2)
denies that its U&C prices for 30-day supplies of HSP-eligible drugs were 33% of the drugs’
HSP program price. Regarding the third sentence, Defendant admits that Mr. Hagert’s
prescription records show third-party payors involved with at least some prescriptions filled at
CVS but lacks sufficient knowledge to admit or deny the remaining allegations in the third
sentence. The sixth sentence asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the sentence’s allegations. Defendant denies the
allegations in the seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge to
admit or deny the tenth sentence’s allegation concerning Mr. Hagert’s future intentions and it
denies all remaining allegations in that sentence. Defendant denies all other allegations in
Paragraph 30.
31. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 31. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 31 does not specify the “monthly
maintenance medication” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Cauley has filled multiple prescriptions at CVS pharmacies
in Pennsylvania since 2007 and that those prescriptions are associated with multiple NDCs and
(2) denies that its U&C prices for HSP-eligible drugs were the drugs’ HSP program price.
Regarding the third sentence, Defendant admits that Mr. Cauley’s prescription records show
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third-party payors involved with at least some prescriptions filled at CVS but lacks sufficient
knowledge to admit or deny the remaining allegations in the third sentence. The sixth sentence
asserts a legal conclusion to which no response is required; to the extent a response is required,
Defendant denies the sentence’s allegations. Defendant denies the allegations in the seventh,
eighth, and ninth sentences. Defendant lacks sufficient knowledge to admit or deny the tenth
sentence’s allegation concerning Mr. Cauley’s future intentions and it denies all remaining
allegations in that sentence. Defendant denies all other allegations in Paragraph 31.2
32. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 32. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 32 does not specify the medication to
which it refers; however, Defendant (1) admits only that prescription records reflect that Ms.
Krone has filled multiple prescriptions at CVS pharmacies in Maryland and one prescription in
the District of Columbia since 2004 and that those prescriptions are associated with multiple
NDCs and (2) denies that its U&C prices for 90-day supplies of HSP-eligible drugs were the
drugs’ HSP program price. Regarding the third sentence, Defendant admits that Ms. Krone’s
prescription records show third-party payors involved with at least some prescriptions filled at
CVS but lacks sufficient knowledge to admit or deny the remaining allegations in the third
sentence. The sixth sentence asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the sentence’s allegations. Defendant denies the
allegations in the seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge to
admit or deny the tenth sentence’s allegation concerning Mr. Krone’s future intentions and it
denies all remaining allegations in that sentence. Defendant denies all other allegations in
Paragraph 32.3
33. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 33. Defendant lacks sufficient knowledge to admit or deny the allegations
2 Plaintiffs have informed CVS that Mr. Cauley is withdrawing as a putative class representative.
3 Plaintiffs have informed CVS that Ms. Krone is withdrawing as a putative class representative.
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in the second, fourth, and fifth sentences, as Paragraph 33 does not specify the “monthly
maintenance medication” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Ms. Caine has filled multiple prescriptions at CVS pharmacies in
Georgia since 2006 and that those prescriptions are associated with multiple NDCs and (2)
denies that its U&C prices for 60-day supplies of HSP-eligible drugs were 66% of the drugs’
HSP program price. Regarding the third sentence, Defendant admits that Ms. Caine’s
prescription records show third-party payors involved with at least some prescriptions filled at
CVS but lacks sufficient knowledge to admit or deny the remaining allegations in the third
sentence. The sixth sentence asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the sentence’s allegations. Defendant denies the
allegations in the seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge to
admit or deny the tenth sentence’s allegation concerning Ms. Caine’s future intentions and it
denies all remaining allegations in that sentence. Defendant denies all other allegations in
Paragraph 33.
34. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 34. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 34 does not specify the “two monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Bolin has filled multiple prescriptions at CVS pharmacies in
Ohio since 2006 and that those prescriptions are associated with multiple NDCs and (2) denies
that its U&C prices for 30-day supplies of HSP-eligible drugs were 33% of the drugs’ HSP
program price. Regarding the third sentence, Defendant admits that Mr. Bolin’s prescription
records show third-party payors involved with at least some prescriptions filled at CVS but lacks
sufficient knowledge to admit or deny the remaining allegations in the third sentence. The sixth
sentence asserts a legal conclusion to which no response is required; to the extent a response is
required, Defendant denies the sentence’s allegations. Defendant denies the allegations in the
seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge to admit or deny the
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tenth sentence’s allegation concerning Mr. Bolin’s future intentions and it denies all remaining
allegations in that sentence. Defendant denies all other allegations in Paragraph 34.
35. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 35. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 35 does not specify the “two monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Wulff has filled multiple prescriptions at CVS pharmacies in
Ohio since 2005 and that those prescriptions are associated with multiple NDCs and (2) denies
that its U&C prices for 30-day and 90-day supplies of HSP-eligible drugs were 33% and 100%
of the drug’s HSP program price. Regarding the third sentence, Defendant admits that Mr.
Wulff’s prescription records show third-party payors involved with at least some prescriptions
filled at CVS but lacks sufficient knowledge to admit or deny the remaining allegations in the
third sentence. The sixth sentence asserts a legal conclusion to which no response is required; to
the extent a response is required, Defendant denies the sentence’s allegations. Defendant denies
the allegations in the seventh, eighth, and ninth sentences. Defendant lacks sufficient knowledge
to admit or deny the tenth sentence’s allegation concerning Mr. Wulff’s future intentions and it
denies all remaining allegations in that sentence. Defendant denies all other allegations in
Paragraph 35.
36. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 36. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 36 does not specify the “three monthly
maintenance medications” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Ms. Gilbert has filled multiple prescriptions at CVS pharmacies
in Texas since 2012 and that those prescriptions are associated with multiple NDCs and (2)
denies that its U&C prices for 30-day, 60-day, and 90-day supplies of HSP-eligible drugs were
33%, 66% and 100%, respectively, of the drug’s HSP program price. Regarding the third
sentence, Defendant admits that Ms. Gilbert’s prescription records show third-party payors
involved with at least some prescriptions filled at CVS but lacks sufficient knowledge to admit
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or deny the remaining allegations in the third sentence. The sixth sentence asserts a legal
conclusion to which no response is required; to the extent a response is required, Defendant
denies the sentence’s allegations. Defendant denies the allegations in the seventh, eighth, and
ninth sentences. Defendant denies all other allegations in Paragraph 36.
37. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 37. Defendant lacks sufficient knowledge to admit or deny the allegations
in the second, fourth, and fifth sentences, as Paragraph 37 does not specify the “one monthly
maintenance medication” to which it refers; however, Defendant (1) admits only that
prescription records reflect that Mr. Brown has filled multiple prescriptions at CVS pharmacies
in Texas since 2011 and that those prescriptions are associated with multiple NDCs and (2)
denies that its U&C prices for 30-day supplies of HSP-eligible drugs were 33% of the drug’s
HSP program price. Regarding the third sentence, Defendant admits that Mr. Brown’s
prescription records show third-party payors involved with at least some prescriptions filled at
CVS but lacks sufficient knowledge to admit or deny the remaining allegations in the third
sentence. The sixth sentence asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the sentence’s allegations. Defendant denies the
allegations in the seventh, eighth, and ninth sentences. Defendant denies all other allegations in
Paragraph 37.
B. Defendants
38. Defendant admits that CVS Pharmacy, Inc. is incorporated under the laws of
Rhode Island and headquartered in Woonsocket, Rhode Island; that CVS Pharmacy, Inc. is a
separate corporation from CVS Health Corporation; and that CVS Pharmacy, Inc. is wholly
owned by CVS Health Corporation. Defendant denies all other allegations in Paragraph 38.
39. CVS Health Corporation’s 2014 Annual Report speaks for itself; Paragraph 39
therefore requires no response. To the extent a response is required, Defendant denies the
allegations in Paragraph 39.
40. Regarding the allegations in the first sentence of Paragraph 40, Defendant admits
that CVS Pharmacy, Inc., through and by its subsidiaries, as of December 31, 2015, owned and
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operated approximately 9,600 retail pharmacies in the United States and Puerto Rico; the
pharmacies operate under trade names including but not limited to CVS Pharmacy® and Longs
Drugs®; the pharmacies are located in multiple states across the United States, as well as in the
District of Columbia, the territory of Puerto Rico, and the Northern District of California.
Regarding the allegations in the second sentence, Defendant lacks sufficient knowledge to admit
or deny the allegations: the sentence purports to quote from a source the Complaint does not
identify; furthermore, such source presumably speaks for itself. Regarding the third and fourth
sentences, Defendant admits that (1) during 2015, CVS pharmacies filled approximately 1 billion
prescriptions and (2) for 2014, CVS Health Corporation reported overall net revenues of $139.4
billion and net revenues for the Retail Pharmacy Segment of the CVS Health Corporation family
of entities of $67.8 billion.
IV. JURISDICTION AND VENUE
41. Paragraph 41 asserts legal conclusions to which no response is required. To the
extent a response is required, Defendant admits that 28 U.S.C. § 1332(d)(2) is the basis alleged
for subject matter jurisdiction in this suit and that the Complaint also cites 28 U.S.C. § 1367(a);
Defendant is incorporated under the laws of Rhode Island and its headquartered in Woonsocket,
Rhode Island; and no Plaintiff alleges to be a citizen of Rhode Island. Defendant denies all other
allegations in Paragraph 41.
42. The first and second sentences of Paragraph 42 assert legal conclusions to which
no response is required; to the extent a response is required, Defendant admits that it is not
contesting personal jurisdiction over CVS Pharmacy, Inc. for purposes of this case only.
Defendant denies all other allegations in Paragraph 42, including but not limited to the
allegations in the third sentence.
43. Paragraph 43 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant admits there are CVS pharmacies within the Northern
District of California. Defendant denies all other allegations in Paragraph 43.
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V. FACTS
44. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 44. Regarding the allegations in the second and third sentences,
Defendant admits that cost-sharing between an insured, the insured’s payor, and/or the payor’s
PBM is a feature of many prescription drug insurance plans, and payment from an insured may
take the form of a copayment. Defendant denies all other allegations in Paragraph 44.
45. Defendant admits that CVS customers with prescription drug insurance do not
negotiate the reimbursement amount that CVS receives for prescriptions subsidized by
insurance; do not negotiate the copayment amount charged for a given prescription; and in
order to receive the prescription at the pharmacy, must pay CVS any copayment determined
by the PBM or payor to be owed. Defendant denies all other allegations in Paragraph 45.
46. Defendant admits the allegations in Paragraph 46.
47. Defendant lacks sufficient knowledge to admit or deny the allegations in the
first and third sentences of Paragraph 47. Defendant denies the allegations in the second
sentence of Paragraph 47.
48. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 48, which allegations are vague and ambiguous. Defendant admits the
allegations in the second and third sentences of Paragraph 48 insofar as they concern
prescriptions for customers with prescription drug insurance; for a cash customer without such
insurance, there is no “claim” to submit to a PBM or payor for “adjudication.” Defendant denies
all other allegations in Paragraph 48.
49. Defendant admits (1) “adjudication” is an automated process by which CVS
pharmacies submit electronic prescription drug claims to PBMs (primarily) or payors (less
frequently); (2) during adjudication, the PBM and/or payor determines whether the customer
has prescription drug insurance, the scope of any benefits, and how the cost of the prescription
will be allocated between or among the customer, the payor, and/or the PBM; (3) adjudication
involves transmitting various data elements between the pharmacy and the PBM and/or payor;
(4) the PBM and/or payor determines the customer’s copayment for a given prescription; and
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(5) the pharmacy does not determine the customer’s copayment. Defendant denies all other
allegations in Paragraph 49.
50. Defendant admits that NCPDP is a standards-setting organization whose
standards are utilized by, inter alia, the pharmacy and claims-processing industries; CVS
pharmacies’ systems have used NCPDP standards since at least November 2008; and NCPDP
standards apply to the transmission of electronic pharmacy claims. Defendant denies all other
allegations in Paragraph 50.
51. Defendant admits (1) the allegations in the first sentence of Paragraph 51 of the
Complaint and (2) regarding the second sentence, that NCPDP’s members include
representatives from pharmacies, pharmacists, health plans, and government agencies.
Defendant, however, lacks sufficient knowledge to admit or deny the number of NCPDP
members as the second sentence further alleges. The third sentence of Paragraph 51 asserts
legal conclusions to which no response is required. Defendant denies all other allegations in
Paragraph 51.
52. The first and third sentences of Paragraph 52 assert legal conclusions to which
no response is required, and 42 C.F.R. § 423.160 speaks for itself. Regarding the second
sentence, Defendant admits that NCPDP has developed various versions of NCPDP’s
Telecommunications Standard. Defendant denies the allegations in the final sentence of
Paragraph 52, as well as all other allegations in Paragraph 52.
53. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 53 insofar as it purports to identify the U&C price as a mandatory data
field on a pharmacy’s NCPDP request file; Paragraph 53 is not specific to any PBM’s or payor’s
supposed “require[ments].” Regarding the allegations in the second and third sentences,
Defendant admits that NCPDP’s Telecommunication Standard includes Field 426-DQ, “Usual
and Customary Charge,” which NCPDP’s data dictionary defines as “Amount charged cash
customers for the prescription exclusive of sales tax or other amounts claimed.” Defendant
denies the third sentence’s assertion that there is a “mandatory [NCPDP] pricing segment code
426-DQ,” as well as all other allegations in Paragraph 53.
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54. Regarding the first sentence of Paragraph 54, Defendant admits that, during the
adjudication process, CVS submits various data elements to a PBM (generally) or payor (less
frequently) which instructs CVS of the copayment amount to collect from the insured customer
for a specific purchase. Defendant lacks sufficient knowledge to admit or deny the allegations in
the second sentence which, inter alia, are not specific to any particular transaction, any particular
plan, etc. Regarding the third sentence, Defendant admits that the portion of the pharmacy’s
reimbursement not received from the insured customer in the form of a copayment is received
from the PBM and/or the payor. Defendant denies all other allegations in Paragraph 54.
55. Defendant lacks sufficient knowledge to admit or deny the allegations in the first,
second, and third sentences of Paragraph 55, as the pharmacy’s reported U&C price may or may
not affect a particular insured customer’s copayment on a particular purchase. The third
sentence of Paragraph 55 also asserts a legal conclusion to which no response is required.
Defendant denies all other allegations in Paragraph 55.
56. Regarding the first sentence of Paragraph 56, Defendant admits that, in some
situations, an insured consumer’s copayment may be calculated as a percentage of the
pharmacy’s reported U&C price but denies that (1) all insured consumers’ copayments are
determined in that manner or (2) the U&C price is considered (in any manner) in calculating
every insured consumer’s copayment. The second, third, and fourth sentences pose a
hypothetical situation rather than asserting facts; as such, no response is required to those
sentences; to the extent a response is required, Defendant admits only that (1) 25% of $20 is $5
and (2) 25% of $36 is $9. Defendant denies all other allegations in Paragraph 56.
A. The HSP Program.
57. Defendant lacks sufficient knowledge to admit or deny the allegations in
Paragraph 57.
58. Regarding the first sentence of Paragraph 58, Defendant admits that Wal-Mart, in
September 2006, announced a program to charge in certain stores $4 for certain generic
prescriptions; lacks sufficient knowledge to admit or deny whether the drugs in Wal-Mart’s
program were “the most commonly prescribed generic drugs”; and denies Wal-Mart’s program
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offered 90-day supplies at the time. Defendant lacks sufficient knowledge to admit or deny the
allegations in the second, third, and fourth sentences, and denies any remaining allegations in
Paragraph 58.
59. Defendant denies the allegations in Paragraph 59.
60. Defendant admits that (1) CVS launched the HSP program that is the subject of
Plaintiffs’ Complaint in November 2008 and (2) the program formulary included certain generic
prescription medicines. Defendant denies all other allegations in Paragraph 60.
61. Defendant denies the allegations in Paragraph 61.
62. Regarding the first, fourth, fifth, and eighth sentences of Paragraph 62, Defendant
admits that HSP was an opt-in, membership-based generic drug program that required, inter alia,
payment of an enrollment fee both initially and annually in order to receive HSP benefits; the fee
amount was $10/year from November 2008–2010 and $15/year starting in 2011; the price for a
standard 90-day supply for most medicines on the HSP formulary was $9.99 (November 2008–
2010) and $11.99 (starting in 2011); certain categories of drugs had different price-points (e.g.,
antibiotics and women’s health drugs); in certain states, the standard 90-day-quantity price was
higher than $9.99 (November 2008–2010) and $11.99 (starting in 2011); several hundred generic
drugs were included on the HSP formulary, although drugs were added and removed over the
course of the program; and HSP benefits were redeemable only at CVS pharmacies. Defendant
admits the allegations in the second sentence. Defendant denies the allegations in the third,
sixth, and seventh sentences, as well as the allegations in (1) the fourth sentence, insofar as it
implies HSP enrollment was limited to “cash-paying customers,” and (2) the eighth sentence,
insofar as it asserts CVS charged HSP customers receiving less than a 90-day quantity a prorated
amount of HSP’s fixed price. Defendant denies all other allegations in Paragraph 62.
63. Defendant lacks sufficient knowledge to admit or deny whether the HSP
medicines were “the most commonly prescribed generic drugs,” but it admits drugs on the HSP
formulary included treatments for, inter alia, heart health and blood pressure, allergies, diabetes,
pain and arthritis, skin conditions, mental health, women’s health, thyroid, glaucoma, and
gastrointestinal health. Defendant denies all other allegations in Paragraph 63.
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64. Defendant admits that price-sensitive customers were among the customers whom
CVS believed may find the HSP program attractive, but it lacks sufficient knowledge to admit or
deny the remaining allegations in the first sentence of Paragraph 64 concerning whether those
customers typically take long-term maintenance medications. Defendant also lacks sufficient
knowledge to admit or deny the allegations in the second sentence of Paragraph 64. Defendant
denies all other allegations in Paragraph 64.
65. Regarding the first sentence of Paragraph 65, CVS admits it did not believe the
HSP program affected its U&C price or third-party reimbursements. Defendant denies the
allegations in the second sentence of Paragraph 65. Defendant denies all other allegations in
Paragraph 65.
66. Defendant denies the allegations in Paragraph 66. The first and second sentences
of Paragraph 66 also assert legal conclusions to which no response is required.
67. Defendant denies the allegations in first and second sentences of Paragraph 67,
except Defendant admits it possesses (1) contracts CVS has executed with PBMs and/or payors
and (2) pharmacy manuals distributed by PBMs and/or payors. Defendant lacks sufficient
knowledge to admit or deny the allegations in the third and fourth sentences of Paragraph 67; the
fourth sentence also contains legal conclusions to which no response is required. Defendant
denies all other allegations in Paragraph 67.
68. Defendant denies the allegations in the first sentence of Paragraph 68. Regarding
the second sentence, Defendant admits that CVS believes HSP customers and cash customers
were differently situated, but it otherwise denies the allegations in the second sentence.
69. Defendant denies the allegations in Paragraph 69.
70. Regarding the first sentence of Paragraph 70, Defendant admits only that (1) CVS
has at all times complied with industry standards, and (2) NCPDP’s Telecommunication
Standard includes Field 426-DQ, “Usual and Customary Charge,” which NCPDP’s data
dictionary defines as “Amount charged cash customers for the prescription exclusive of sales tax
or other amounts claimed.” Defendant denies the allegations in the second and third sentences.
Defendant denies all other allegations in Paragraph 70.
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71. Regarding the first sentence of Paragraph 71 of the Complaint, Defendant admits
that CVS does not today, and never has, reported the HSP price as its U&C price on drugs
included on the HSP formulary. Defendant denies the allegations in the second and third
sentences of Paragraph 71.
72. Defendant denies the allegations in Paragraph 72.
73. Defendant denies the allegations in Paragraph 73.
74. Defendant denies the allegations in Paragraph 74.
75. Defendant denies the allegations in Paragraph 75.
76. Defendant denies the allegations in Paragraph 76.
77. Defendant denies the allegations in Paragraph 77.
78. Defendant denies the allegations in the first and third sentences of Paragraph 78.
Defendant lacks sufficient knowledge to admit or deny the allegations in the second sentence and
the table, including whether Paragraph 78 accurately reflects U&C prices supposedly reported to
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Pennsylvania Medicaid by ShopRite, Wal-Mart, Target, and Costco for the identified drugs, at
the identified quantities, and on a date not specified in Paragraph 78.
79. Defendant denies the allegations in the first and third sentences of Paragraph 79.
The second sentence asserts a legal conclusion to which no response is required; further,
Defendant lacks sufficient knowledge to admit or deny the allegations concerning the total
copayments CVS has received since 2008 from an unknown group of insured customers for
purchases of certain generic drugs.
80. Defendant denies the allegations in Paragraph 80.
81. Defendant denies the allegations in Paragraph 81.
82. Defendant denies the allegations in Paragraph 82.
VI. CLASS ALLEGATIONS
83. Paragraph 83 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations. In any event, in its dismissal
orders of March 14, 2016 (Dkt. No. 96) and July 29, 2016 (Dkt. No. 130), the Court has held that
Plaintiffs lack standing to bring claims, whether statutory or common law-based, on behalf of
any putative class member who does not reside or claim to have suffered an injury in states or
other jurisdictions outside of those in which Plaintiffs themselves reside or claim to have
suffered an alleged injury. Order at 4 (July 29, 2016) [Dkt. No. 130]. In other words, the case
no longer involves claims on behalf of a putative nationwide class.
84. Paragraph 84 asserts legal conclusions to which no response is required.
85. The first sentence of Paragraph 85 asserts legal conclusions to which no response
is required; to the extent a response is required, Defendant denies the allegations. Defendant
denies the allegations in the second sentence of Paragraph 85.
86. Paragraph 86 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations.
87. Paragraph 87 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations.
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88. Paragraph 88 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations.4
89. Paragraph 89 asserts legal conclusions to which no response is required. In
addition, Defendant denies that it has engaged in the conduct described in subparts (a)–(f) of
Paragraph 89.
90. Defendant lacks sufficient knowledge to admit or deny the allegations in the first
sentence of Paragraph 90 insofar as it discusses the costs of litigation; otherwise, the allegations
in the first sentence of Paragraph 90 assert a legal conclusion to which no response is required; to
the extent a response is required, Defendant denies the allegations. The second sentence of
Paragraph 90 asserts legal conclusions to which no response is required; to the extent a response
is required, Defendant denies the allegations.
91. The first sentence of Paragraph 91 asserts legal conclusions to which no response
is required; to the extent a response is required, Defendant denies the allegations. Defendant
lacks sufficient knowledge to admit or deny the allegations in the second, third, and fourth
sentences of Paragraph 91.
VII. TOLLING OF THE STATUTE OF LIMITATIONS
92. Paragraph 92 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 92.
93. Paragraph 93 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 93.
94. Paragraph 94 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 94.
95. Defendant denies the allegations in Paragraph 95.
96. Defendant denies the allegations in Paragraph 96.
97. Defendant denies the allegations in Paragraph 97.
4 Defendant objects to the continued inclusion of a reference to FRCP 23(b)(2), despite Plaintiff counsel’s acknowledgement that this reference is a typographical error.
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98. Defendant denies the allegations in Paragraph 98.
99. Paragraph 99 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 99.
100. Paragraph 100 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 100.
101. Paragraph 101 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 101.
102. Paragraph 102 asserts legal conclusions to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 102.
COUNT 1: FRAUD
103. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
104. Defendant denies the allegations in Paragraph 104.
105. Defendant denies the allegations in Paragraph 105.
106. Defendant denies the allegations in Paragraph 106.
107. Defendant denies the allegations in Paragraph 107.
108. Defendant denies the allegations in Paragraph 108.
109. Defendant denies the allegations in Paragraph 109.
COUNT 2: NEGLIGENT MISREPRESENTATION
110. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
111. Paragraph 111 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 111.
112. Defendant denies the allegations in Paragraph 112.
113. Defendant denies the allegations in Paragraph 113.
114. Defendant denies the allegations in Paragraph 114.
115. Defendant denies the allegations in Paragraph 115.
116. Defendant denies the allegations in Paragraph 116.
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117. Defendant denies the allegations in Paragraph 117.
COUNT 3: UNJUST ENRICHMENT
118. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
119. Defendant denies the allegations in Paragraph 119.
120. Defendant denies the allegations in Paragraph 120.
121. Defendant denies the allegations in Paragraph 121.
122. Defendant denies the allegations in Paragraph 122.
123. Defendant denies the allegations in Paragraph 123.
124. Defendant denies the allegations in Paragraph 124.
125. Defendant denies the allegations in Paragraph 125.
COUNT 4: VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW
126. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
127. Defendant admits only that Plaintiffs Corcoran, Gardner, Clark and Norkus
purport to bring claims on behalf of themselves and a putative class and denies any and all
remaining allegations in Paragraph 127. For the avoidance of doubt, Defendant denies that
Plaintiffs have a viable claim, are entitled to relief, that the putative class they seek to represent
is certifiable under governing law, and that Plaintiffs have standing to bring claims on behalf of
any putative class member who does not reside or claim to have suffered an injury in states or
other jurisdictions outside of those in which Plaintiffs reside or claim to have suffered an alleged
injury. Order at 4 (July 29, 2016) [Dkt. No. 130].
128. Paragraph 128 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 128.
129. Defendant denies the allegations in Paragraph 129.
130. Defendant denies the allegations in Paragraph 130.
131. Defendant denies the allegations in Paragraph 131.
132. Defendant denies the allegations in Paragraph 132.
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133. Defendant denies the allegations in Paragraph 133.
COUNT 5: VIOLATION OF CALIFORNIA CONSUMER LEGAL REMEDIES ACT
134. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
135. Defendant admits only that Plaintiffs Corcoran, Gardner, Clark and Norkus
purport to bring claims on behalf of themselves and a putative class and denies any and all
remaining allegations in Paragraph 135. For the avoidance of doubt, Defendant denies that
Plaintiffs have a viable claim, are entitled to relief, that the putative class they seek to represent
is certifiable under governing law, and that Plaintiffs have standing to bring claims on behalf of
any putative class member who does not reside or claim to have suffered an injury in states or
other jurisdictions outside of those in which Plaintiffs reside or claim to have suffered an alleged
injury. Order at 4 (July 29, 2016) [Dkt. No. 130].
136. Paragraph 136 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 136.
137. Paragraph 137 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 137.
138. Paragraph 138 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 138.
139. Paragraph 139 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 139.
140. Defendant denies the allegations in Paragraph 140.
141. Defendant denies the allegations in Paragraph 141.
142. Defendant denies the allegations in Paragraph 142.
143. Defendant denies the allegations in Paragraph 143.
144. Defendant denies the allegations in Paragraph 144.
145. Defendant denies the allegations in Paragraph 145.
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COUNT 6: VIOLATION OF ARIZONA CONSUMER FRAUD ACT
146. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
147. Defendant admits only that Plaintiff Avis purports to bring claims on behalf of
herself and a putative class and denies any and all remaining allegations in Paragraph 147. For
the avoidance of doubt, Defendant denies that Plaintiff has a viable claim, is entitled to relief,
and that the putative class she seeks to represent is certifiable under governing law.
148. Defendant denies the allegations in Paragraph 148.
149. Defendant denies the allegations in Paragraph 149.
150. Defendant denies the allegations in Paragraph 150.
151. Defendant denies the allegations in Paragraph 151.
COUNT 7: VIOLATION OF MASSACHUSETTS CONSUMER PROTECTION ACT
152. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
153. Defendant admits only that Plaintiff Garber purports to bring claims on behalf of
himself and a putative class and denies any and all remaining allegations in Paragraph 153. For
the avoidance of doubt, Defendant denies that Plaintiff has a viable claim, is entitled to relief,
and that the putative class he seeks to represent is certifiable under governing law.
154. Paragraph 154 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 154.
155. Paragraph 155 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 155.
156. Defendant denies the allegations in Paragraph 156.
157. Defendant denies the allegations in Paragraph 157.
158. Regarding the first sentence of Paragraph 158, Defendant admits that counsel for
Plaintiff Garber, in letters dated August 3, 2015 addressed to CVS Health Corporation, One CVS
Drive, Woonsocket, Rhode Island 02895, and to CVS Pharmacy, 95 Washington Street, Canton,
Massachusetts 02021, purported to provide “notice of complaint and demand for restitution
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and/or damages pursuant to the Massachusetts Consumer Protection Act, M.G.L. ch. 93A, et seq.
against CVS.” Regarding the second sentence of Paragraph 158, Defendant admits that it did not
provide a written tender of settlement within 30 days of August 3, 2015. Defendant denies all
other allegations in Paragraph 158.
159. Defendant denies the allegations in Paragraph 159.
160. Defendant denies the allegations in Paragraph 160.
COUNT 8: VIOLATION OF NEW YORK CONSUMER PROTECTION LAW
161. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
162. Defendant admits only that Plaintiffs Odorisio, Guarnieri, and Samuelson purport
to bring claims on behalf of themselves and a putative class and denies any and all remaining
allegations in Paragraph 162. For the avoidance of doubt, Defendant denies that Plaintiffs have a
viable claim, are entitled to relief, and that the putative class they seek to represent is certifiable
under governing law.
163. Paragraph 163 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 163.
164. Defendant denies the allegations in Paragraph 164.
165. Defendant denies the allegations in Paragraph 165.
166. Defendant denies the allegations in Paragraph 166.
167. Defendant denies the allegations in Paragraph 167.
COUNT 9: VIOLATION OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT
Asserted by the Texas Plaintiffs and the Texas Subclass against CVS
168. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
169. Defendant admits only that Plaintiffs Gilbert and Brown purport to bring claims
on behalf of themselves and a putative class and denies any and all remaining allegations in
Paragraph 169. For the avoidance of doubt, Defendant denies that Plaintiffs have a viable claim,
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are entitled to relief, and that the putative class they seek to represent is certifiable under
governing law.
170. Paragraph 170 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 170.
171. Paragraph 171 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 171.
172. Defendant denies the allegations in Paragraph 172.
173. Defendant denies the allegations in Paragraph 173.
174. Defendant denies the allegations in Paragraph 174.
175. Defendant denies the allegations in Paragraph 175.
176. Defendant denies the allegations in Paragraph 176.
177. Defendant denies the allegations in Paragraph 177.
178. Defendant denies the allegations in Paragraph 178.
COUNT 10: VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR
TRADE PRACTICES ACT
179. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
180. Defendant admits only that Plaintiffs Jenks and Barrett purport to bring claims on
behalf of themselves and a putative class and denies any and all remaining allegations in
Paragraph 180. For the avoidance of doubt, Defendant denies that Plaintiffs have a viable claim,
are entitled to relief, and that the putative class they seek to represent is certifiable under
governing law.
181. Paragraph 181 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 181.
182. Defendant denies the allegations in Paragraph 182.
183. Defendant denies the allegations in Paragraph 183.
184. Defendant denies the allegations in Paragraph 184.
185. Defendant denies the allegations in Paragraph 185.
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COUNT 11: VIOLATION OF ILLINOIS CONSUMER FRAUD AND DECEPTIVE
BUSINESS PRACTICES ACT
186. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
187. Defendant admits only that Plaintiffs Washington, Podgorny, and Jenks purport to
bring claims on behalf of themselves and a putative class and denies any and all remaining
allegations in Paragraph 187. For the avoidance of doubt, Defendant denies that Plaintiffs have a
viable claim, are entitled to relief, and that the putative class they seek to represent is certifiable
under governing law.
188. Paragraph 188 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 188.
189. Paragraph 189 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 189.
190. Paragraph 190 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 190.
191. Defendant denies the allegations in Paragraph 191.
192. Defendant denies the allegations in Paragraph 192.
193. Defendant denies the allegations in Paragraph 193.
194. Defendant denies the allegations in Paragraph 194.
195. Defendant denies the allegations in Paragraph 195.
196. Defendant denies the allegations in Paragraph 196.
197. Defendant denies the allegations in Paragraph 197.
COUNT 12: VIOLATION OF NEW JERSEY CONSUMER FRAUD ACT
198. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
199. Defendant admits only that Plaintiff Gargiulo purports to bring claims on behalf
of himself and a putative class and denies any and all remaining allegations in Paragraph 199.
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For the avoidance of doubt, Defendant denies that Plaintiff has a viable claim, is entitled to
relief, and that the putative class he seeks to represent is certifiable under governing law.
200. Defendant denies the allegations in Paragraph 200.
201. Defendant denies the allegations in Paragraph 201.
202. Defendant denies the allegations in Paragraph 202.
203. Defendant denies the allegations in Paragraph 203.
COUNT 13: VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES AND
CONSUMER PROTECTION LAW, § 201–1, ET SEQ.
204. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
205. Defendant admits only that Plaintiffs Cauley and Hagert purport to bring claims
on behalf of themselves and a putative class and denies any and all remaining allegations in
Paragraph 205. For the avoidance of doubt, Defendant denies that Plaintiffs have a viable claim,
are entitled to relief, and that the putative class they seek to represent is certifiable under
governing law.
206. Paragraph 206 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 206.
207. Paragraph 207 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 207.
208. Defendant denies the allegations in Paragraph 208.
209. Defendant denies the allegations in Paragraph 209.
210. Defendant denies the allegations in Paragraph 210.
211. Defendant denies the allegations in Paragraph 211.
212. Defendant denies the allegations in Paragraph 212.
COUNT 14: VIOLATION OF MARYLAND CONSUMER PROTECTION ACT
213. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
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214. Defendant admits only that Plaintiff Krone purports to bring claims on behalf of
herself and a putative class and denies any and all remaining allegations in Paragraph 214. For
the avoidance of doubt, Defendant denies that Plaintiff has a viable claim, is entitled to relief,
and that the putative class she seeks to represent is certifiable under governing law.
215. Paragraph 215 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 215.
216. Paragraph 216 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 216.
217. Defendant denies the allegations in Paragraph 217.
218. Defendant denies the allegations in Paragraph 218.
219. Defendant denies the allegations in Paragraph 219.
220. Defendant denies the allegations in Paragraph 220.
COUNT 15: VIOLATION OF DISTRICT OF COLUMBIA CONSUMER PROTECTION
PROCEDURES ACT
221. Defendant incorporates by reference its response to Paragraphs 1–102 above as if
set forth fully herein.
222. Defendant admits only that Plaintiff Krone purports to bring claims on behalf of
herself and a putative class and denies any and all remaining allegations in Paragraph 222. For
the avoidance of doubt, Defendant denies that Plaintiff has a viable claim, is entitled to relief,
and that the putative class she seeks to represent is certifiable under governing law.
223. Paragraph 223 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 223.
224. Paragraph 224 asserts a legal conclusion to which no response is required; to the
extent a response is required, Defendant denies the allegations in Paragraph 224.
225. Defendant denies the allegations in Paragraph 225.
226. Defendant denies the allegations in Paragraph 226.
227. Defendant denies the allegations in Paragraph 227.
228. Defendant denies the allegations in Paragraph 228.
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PLAINTIFFS’ PRAYER FOR RELIEF
Plaintiffs’ “PRAYER FOR RELIEF” does not contain allegations to which a response is
required. To the extent a response is required, Defendant denies that Plaintiffs are entitled to any
relief and, on that basis, denies any and all allegations in the “PRAYER FOR RELIEF.”
To the extent an allegation anywhere in Plaintiffs’ Complaint is not expressly admitted
above, Defendant denies the allegation.
AFFIRMATIVE DEFENSES
As additional defenses to Plaintiffs’ Complaint, and without assuming any burden of
pleading or proof that would otherwise rest on Plaintiffs, Defendant alleges as follows:
FIRST AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein fail to state facts sufficient to constitute a claim
upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein are barred, in whole or in part, by the applicable
statute of limitations.
THIRD AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein are barred, in whole or in part, by the equitable
doctrines of estoppel, laches, unclean hands, and/or waiver.
FOURTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein are barred, in whole or in part, because CVS’s
reported U&C prices were not inaccurate, misleading, deceptive, unfair, unconscionable, or the
like, nor did authorities require CVS to report the Health Savings Pass program price as its U&C
price.
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FIFTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein are barred, in whole or in part, because Plaintiffs
did not rely, reasonably or otherwise, on any alleged misrepresentation, omission, deceptive act,
unfair act, unconscionable act, or the like by Defendant.
SIXTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein are barred, in whole or in part, because Plaintiffs
have not suffered injury in fact.
SEVENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every cause of action therein are barred, in whole or in part, because any alleged losses
or harms sustained by Plaintiffs and any putative class members, if any, which Defendant denies,
resulted from causes other than the alleged acts and omissions by Defendant, including by the
acts of third parties or intervening or superseding causes.
EIGHTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every cause of action therein are barred, in whole or in part, by Plaintiffs’ contributory
negligence and/or comparative negligence.
NINTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et
seq., is foreclosed based on, among other things, the absence of any unfair competition, money
or property acquired by means of any unfair competition, and Plaintiffs’ entitlement to any
remedy for injunctive relief or restitution made available under the statute.
TENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under California’s Legal Remedies Act, Cal. Civ. Code § 1750 et seq., is
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foreclosed based on, among other things, the absence of any practice proscribed by the statute,
injury or damage caused by such a practice, reliance thereon, and Plaintiffs’ compliance with the
statute’s anti litem notice requirement.
ELEVENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under Arizona’s Consumer Fraud Act, A.R.S. § 44-1524 et seq., is foreclosed
based on, among other things, the absence of any practice deemed unlawful under the statute,
reliance thereon, and injury or damage caused by any unlawful practice.
TWELFTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under Massachusetts’s Consumer Protection Act, M.G.L. 93A § 1 et seq., is
foreclosed based on, among other things, the absence of any unfair method of competition or
unfair or deceptive act prohibited by the statute, injury, or loss suffered by Plaintiffs as a result of
any such act, a causal connection between any purported injury or loss and the prohibited act,
and Plaintiffs’ compliance with the statute’s anti litem notice requirement.
THIRTEENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under New York’s Consumer Protection Act, N.Y. Gen. Bus. Law § 349 et seq.,
is foreclosed based on, among other things, the absence of consumer-oriented deceptive acts or
practices prohibited by the statute; any willful or knowing violation of the statute; and any injury
suffered by Plaintiffs by reason of a statutory violation, as well as because any purported injury
was indirect and derivative of injuries suffered by non-parties to the lawsuit.
FOURTEENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under Florida’s Deceptive and Unfair Trade Practices Act, F.S.A. § 501.201 et
seq., is foreclosed based on, among other things, the absence of unfair competition,
unconscionable acts or practices, and unfair or deceptive acts or practices prohibited by the
statute; reliance on such acts or practices; and damage from such acts or practices.
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FIFTEENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under Illinois’ Consumer Fraud and Deceptive Business Practices Act, 815 ILCS
505/1 et seq., is foreclosed based on, among other things, the absence of unfair methods of
competition, unfair acts or practices, and deceptive acts or practices prohibited by the statute; any
intent by Defendant for Plaintiffs or putative class members to rely on said acts or practices; and
actual damage from said acts or practices.
SIXTEENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under New Jersey’s Consumer Fraud Act, N.J.S.A. 56:8–1 et seq., is foreclosed
based on, among other things, the absence of an unlawful practice under the statute, ascertainable
loss, and a causal relationship between the unlawful practice and the alleged loss, as well as by
the exemption from consumer protection liability for services performed by learned
professionals, such as the services of CVS implicated by Plaintiffs’ allegations.
SEVENTEENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under Pennsylvania’s Unfair Trade Practices & Consumer Protection Law, 73
P.S. § 201-1 et seq., is foreclosed based on, among other things, the absence of unfair methods of
competition, unfair acts or practices, and deceptive acts or practices prohibited by the statute;
Plaintiffs’ justifiable reliance on such acts or practices; ascertainable loss caused by such acts or
practices; and an intentional, reckless, or willful violation of the statute.
EIGHTEENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under Maryland’s Consumer Protection Act, Md. Code Ann., Com. Law § 13–
101 et seq., is foreclosed based on, among other things, the absence of an unfair or deceptive
trade practice prohibited by the statute; injury or loss sustained by Plaintiffs as a result of such
prohibited practice; and reliance on the prohibited practice.
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NINETEENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ asserted
cause of action under the District of Columbia’s Consumer Protection Procedures, D.C. Code §
28–3901 et seq., is foreclosed based on, among other things, Plaintiffs’ failure to comply with
D.C. Code § 28-3905(k)(2), the provision limiting a civil litigant’s private right of action to
litigation commenced in the Superior Court of the District of Columbia, as well as by the
absence of (1) an unlawful trade practice prohibited by the statute and (2) money or property
acquired by means of the unlawful trade practice.
TWENTIETH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every cause of action alleged therein are barred, in whole or in part, for Plaintiffs’
failure to mitigate damages.
TWENTY-FIRST AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein are barred, in whole or in part, by the “voluntary
payment” doctrine insofar as Plaintiffs continued purchasing prescriptions from CVS after they
knew or reasonably should have known of the alleged basis for their claims.
TWENTY-SECOND AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every cause of action alleged therein are barred, in whole or in part, because the alleged
damages, if any, are too remote and/or speculative to allow recovery.
TWENTY-THIRD AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every cause of action therein are barred, in whole or in part, by the Economic Loss
Doctrine.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every cause of action therein are barred, in whole or in part, insofar as they seek to
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impose retroactive liability upon Defendant for acts that were previously permitted, authorized,
and/or required by law.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that the Complaint and
each and every alleged cause of action therein are preempted by federal law, including but not
limited to the Health Insurance Portability and Accountability Act, insofar as Defendant could
not have simultaneously complied with federal law and acted as Plaintiffs claim Defendant
should have acted (i.e., by reporting the HSP program price as its U&C price).
TWENTY-SIXTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs have
failed to and cannot satisfy the requirements for maintenance of a class action, including without
limitation numerosity, typicality, adequacy, predominance, superiority, and ascertainability, as
well as because public policy does not favor certification.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that certifying a class,
under the facts and circumstances of this case, would deny Defendant its procedural and
substantive due process rights.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs lack
standing to bring their claims, in whole or in part, and cannot adequately represent the putative
class members.
TWENTY-NINTH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs and/or the
putative class members are not entitled to equitable relief (including declaratory and injunctive
relief) insofar as (1) they have adequate remedies at law or (2) the bases for the asserted claims
have discontinued, ceased, and are not likely to recur.
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THIRTIETH AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that to the extent
Plaintiffs and/or putative class members seek civil or statutory penalties, such claims violate the
Excessive Fines Clause recited in and/or incorporated into the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution or the analogous state constitutional provisions.
THIRTY- FIRST AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Plaintiffs have failed to allege sufficient
facts to support a claim for attorneys’ fees or costs.
THIRTY- SECOND AFFIRMATIVE DEFENSE
As a separate and distinct affirmative defense, Defendant alleges that Plaintiffs’ claims
fail insofar as they are based upon alleged overpayments of de minimis amounts, as the rule
prohibiting recovery for de minimis injuries bars such claims.
ADDITIONAL DEFENSES
Defendant does not presently know all facts respecting the allegations by, and conduct of,
Plaintiffs and/or putative class members sufficient to state all affirmative defenses at this time.
Accordingly, Defendant reserves the right to amend this Answer or otherwise assert additional
affirmative defenses should it later discover facts demonstrating the existence of additional
affirmative defenses and hereby gives notice that it intends to rely upon such other defenses as
may become available or appear during discovery proceedings in this case.
DEFENDANT’S PRAYER FOR RELIEF
WHEREFORE, Defendant CVS Pharmacy, Inc. prays as follows:
1. That this action be dismissed with prejudice and that Plaintiffs take nothing by
their Complaint;
2. That judgment be entered in favor of Defendant and against Plaintiffs regarding
all causes of action;
3. That the Court award Defendant reasonable costs and expenses including, but not
limited to, attorneys’ fees and costs of suit; and
4. That the Court award such other relief as may be appropriate.
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JURY TRIAL REQUESTED
Defendant, by counsel, demands a trial by jury on all issues so triable.
DATED: August 12, 2016 Respectfully submitted, By: /s/ Grant A. Geyerman Enu Mainigi (pro hac vice) Luba Shur (pro hac vice) Grant A. Geyerman (pro hac vice) WILLIAMS & CONNOLLY LLP
Edward W. Swanson (State Bar No. 159859) August Gugelmann (State Bar No. 240544) SWANSON & McNAMARA LLP Attorneys for CVS Pharmacy, Inc.
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