United States District Court, E.D. Missouri, Eastern Division
GRASSO ENTERPRISES, LLC, d/b/a/ ANNIE'S APOTHECARY, et al. Plaintiffs,
EXPRESS SCRIPTS, INC., Defendant.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of Defendant's
Motion to Dismiss Plaintiffs' Second Amended Complaint,
[Doc. No. 83]. Plaintiffs have responded in opposition. For
the reasons set forth below, the Motion is denied.
are three individual compounding pharmacies that are
“in-network” pharmacies with Express Scripts.
Express Scripts is a pharmacy benefit manager (PBM) that
contracts with health plan administrators and insurance
payors to manage pharmacy benefit plans and to facilitate the
delivery of prescription drugs to health plan members and
other beneficiaries. The Second Amended Complaint alleges a
conspiracy between the nation's four largest PBMs-Express
Scripts, CVS Health Corporation, OptumRx, Inc., and Prime
Therapeutics, LLC-to jointly boycott compounding pharmacies
and eliminate Plaintiffs from the market by ending insurance
coverage for compounded prescription medications in violation
of the Sherman Act, 15 U.S.C. § 1, and state antitrust
laws in Texas. Plaintiffs also assert that Express
Scripts' conduct constitutes unfair competition under
Texas and Missouri law and tortious interference with
business relations under Texas common law.
eliminate competition from compounding pharmacies, Plaintiffs
allege that Express Scripts and its co-conspirators agreed
to: (1) engage in a campaign of misleading statements
impugning the safety and efficacy of compounded drugs through
communications to patients or doctors; (2) drastically reduce
the revenues compounding pharmacies would be reimbursed for
prescribed compounded drugs by eliminating any coverage or
denying claims for compounded medications, even when no
changes were made to underlying health plans; (3) orchestrate
onerous procedural and administrative obstacles for the
compounding pharmacies to fill prescriptions and obtain
reimbursement; (4) conduct abusive audits of compounding
pharmacies on claims the PBMs had approved many months
earlier and then withhold reimbursement payable to
compounding pharmacies on unrelated claims; (5) restrict or
eliminate the use of mail-order delivery of compounded drugs;
and (6) completely remove pharmacies from the networks by
terminating the provider agreements without cause or on a
claim that Express Scripts and its co-conspirators agreed to
boycott individual compounding pharmacies so they could shift
the fulfillment of compounded prescriptions to pharmacies in
which they have an economic interest. Defendants move to
dismiss the complaint, contending that plaintiffs have not
pled sufficient allegations to support their claims.
12(b)(6) provides for a motion to dismiss based on the
“failure to state a claim upon which relief can be
granted.” To survive a motion to dismiss a complaint
must show “‘that the pleader is entitled to
relief, ' in order to ‘give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests.'” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). See also Erickson v.
Pardus, 127 S.Ct. 2197, 2200 (2007). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice” to defeat a
motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (citing Twombly, 550 U.S. at 555).
“[O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at
1950 (citing Twombly, 550 U.S. at 556). The pleading
standard of Rule 8 “does not require ‘detailed
factual allegations, ' but it demands more than an
accusation.” Id. at 1949 (quoting
Twombly, 550 U.S. at 555).
with regard to a Rule 12(b)(6) motion, the Supreme Court
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations,
[citations omitted] a plaintiff's obligation to provide
the “grounds” of his “entitle[ment] to
relief” requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do, see Papasan v. Allain, 478 U.S. 265,
286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to relief
above the speculative level, see 5 C. Wright &
A. Miller, Federal Practice and Procedure § 1216, pp.
235-236 (3d ed.2004) ... see, e.g., ... Neitzke
v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104
L.Ed.2d 338 (1989) (“Rule 12(b)(6) does not countenance
... dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974) (a well-pleaded complaint may proceed even if it
appears “that a recovery is very remote and
Twombly, 550 U.S. at 555-56. See also Gregory v.
Dillard's, Inc., 565 F.3d 464, 473 (8th Cir.2009)
(en banc) (“[A] plaintiff ‘must assert facts that
affirmatively and plausibly suggest that the pleader has the
right he claims ..., rather than facts that are merely
consistent with such a right.' ”) (quoting
Stalley v. Catholic Health Initiative, 509
F.3d 517, 521 (8th Cir.2007)).
“a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable .” Twombly, 550 U.S. at 556
(citation omitted). “The issue is not whether plaintiff
will ultimately prevail but whether the claimant is entitled
to offer evidence to support [its] claims.” Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974).