Pro Hac Vice WILLIAMS & CONNOLLY LLP€¦ · 2. Paragraph 2 asserts legal conclusions to which no response is required; to the extent a response is required, Defendant denies the

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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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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


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


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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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III. PARTIES

A. Plaintiffs


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.



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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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.






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






Mr. Clark’s future intentions and it denies all remaining allegations in that sentence. Defendant






prescription records reflect that Mr. Norkus has filled multiple prescriptions at CVS pharmacies


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in California since 2004 and that those prescriptions are associated with multiple NDCs and (2)



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





Mr. Norkus’s future intentions and it denies all remaining allegations in that sentence.




in the second, fourth, and fifth sentences, as Paragraph 20 does not specify the “three monthly


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.




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in the second, fourth, and fifth sentences, as Paragraph 21 does not specify the “five monthly


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.



in the second, fourth, and fifth sentences, as Paragraph 22 does not specify the “two monthly


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)


HSP program price. Regarding the third sentence, Defendant admits that Ms. Odorisio’s






admit or deny the tenth sentence’s allegation concerning Ms. Odorisio’s future intentions and it


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Paragraph 22.





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.





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



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allegation concerning Ms. Samuelson’s future intentions and it denies all remaining allegations

in that sentence. Defendant denies all other allegations in Paragraph 24.





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.




in the second, fourth, and fifth sentences, as Paragraph 26 does not specify the “four monthly


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






allegation concerning Ms. Barrett’s future intentions and it denies all remaining allegations in

that sentence. Defendant denies all other allegations in Paragraph 26.



in the second, fourth, and fifth sentences, as Paragraph 27 does not specify the “monthly


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






Mr. Washington’s future intentions and it denies all remaining allegations in that sentence.





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in the second, fourth and fifth sentences, as Paragraph 28 does not specify the “two . . .


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


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



in the second, fourth and fifth sentences, as Paragraph 29 does not specify the “two monthly


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)



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



1 Plaintiffs have informed CVS that Mr. Podgorny is withdrawing as a putative class representative.


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Mr. Gargiulo’s future intentions and it denies all remaining allegations in that sentence.





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)


HSP program price. Regarding the third sentence, Defendant admits that Mr. Hagert’s






admit or deny the tenth sentence’s allegation concerning Mr. Hagert’s future intentions and it


Paragraph 30.





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


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



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






admit or deny the tenth sentence’s allegation concerning Mr. Krone’s future intentions and it


Paragraph 32.3



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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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)


HSP program price. Regarding the third sentence, Defendant admits that Ms. Caine’s






admit or deny the tenth sentence’s allegation concerning Ms. Caine’s future intentions and it


Paragraph 33.





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.





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


Paragraph 35.





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



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ninth sentences. Defendant denies all other allegations in Paragraph 36.





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





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


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.


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


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.


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


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


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.


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.


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.


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.


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


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


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.


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.



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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.







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.




VI. CLASS ALLEGATIONS


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.


extent a response is required, Defendant denies the allegations.


extent a response is required, Defendant denies the allegations.


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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.


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










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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COUNT 1: FRAUD

103. Defendant incorporates by reference its response to Paragraphs 1–102 above as if

set forth fully herein.







COUNT 2: NEGLIGENT MISREPRESENTATION



111. Paragraph 111 asserts a legal conclusion to which no response is required; to the








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COUNT 3: UNJUST ENRICHMENT










COUNT 4: VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW



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


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].








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COUNT 5: VIOLATION OF CALIFORNIA CONSUMER LEGAL REMEDIES ACT



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


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].
















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COUNT 6: VIOLATION OF ARIZONA CONSUMER FRAUD ACT



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.





COUNT 7: VIOLATION OF MASSACHUSETTS CONSUMER PROTECTION ACT



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


and that the putative class he seeks to represent is certifiable under governing law.







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.



COUNT 8: VIOLATION OF NEW YORK CONSUMER PROTECTION LAW



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.







COUNT 9: VIOLATION OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT

Asserted by the Texas Plaintiffs and the Texas Subclass against CVS



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.












COUNT 10: VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR

TRADE PRACTICES ACT



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



governing law.








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COUNT 11: VIOLATION OF ILLINOIS CONSUMER FRAUD AND DECEPTIVE

BUSINESS PRACTICES ACT



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.














COUNT 12: VIOLATION OF NEW JERSEY CONSUMER FRAUD ACT



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.





COUNT 13: VIOLATION OF PENNSYLVANIA UNFAIR TRADE PRACTICES AND

CONSUMER PROTECTION LAW, § 201–1, ET SEQ.



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



governing law.










COUNT 14: VIOLATION OF MARYLAND CONSUMER PROTECTION ACT




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214. Defendant admits only that Plaintiff Krone purports to bring claims on behalf of












COUNT 15: VIOLATION OF DISTRICT OF COLUMBIA CONSUMER PROTECTION

PROCEDURES ACT



222. Defendant admits only that Plaintiff Krone purports to bring claims on behalf of













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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


each and every alleged cause of action therein are barred, in whole or in part, by the applicable

statute of limitations.

THIRD AFFIRMATIVE DEFENSE


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


each and every cause of action therein are barred, in whole or in part, by the Economic Loss

Doctrine.

TWENTY-FOURTH AFFIRMATIVE DEFENSE


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


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.


Documents

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