)IN RE PHARMACEUTICAL INDUSTRY ) M.D.L. No. 1456AVERAGE WHOLESALE PRICE ) Civil Action No. 01-12257-PBSLITIGATION ) )
MEMORANDUM AND ORDER
On May 13, 2003, the Court allowed in part a motion to
dismiss the original master consolidated complaint. See In re
Pharm. Indust. Average Wholesale Price Litig., 263 F. Supp. 2d
172, 178-80 (D. Mass. 2003) (Saris, J.) (Pharm. I). The Court
assumes close familiarity with that opinion, which sets forth the
factual background of the allegations as well as the appropriate
legal standards. In response to that opinion, Plaintiffs have
filed a 297-page amended master consolidated complaint (“AMCC”),
which asserts violations of the federal racketeering statute,
eleven consumer fraud statutes and the antitrust laws.2 Again,
Group,” which includes Boehringer Ingelheim Corp., Ben VenueLaboratories Inc. and Bedford Laboratories; B. Braun of America,Inc.; “The BMS Group,” which includes Bristol-Myers Squibb Co.,Oncology Therapeutics Network Corp., and Apothecon, Inc.; Dey,Inc.; “The Fujisawa Group,” which includes Fujisawa Healthcare,Inc. and Fujisawa U.S.A., Inc.; “The GSK Group,” which includesGlaxoSmithKline, P.L.C., SmithKline Beecham Corp., and GlaxoWellcome, Inc.; Hoffman-LaRoche, Inc.; Immunex Corp.; “TheJohnson and Johnson Group,” which includes Johnson & Johnson,Centocor, Inc., Janssen Phamarceutical Products, L.P., McNeil-PPC, Inc., and Ortho Biotech; Novartis Pharmaceuticals Corp.;Pfizer, Inc.; “The Pharmacia Group,” which includes PharmaciaCorp. and Pharmacia & Upjohn, Inc.; “The Schering-Plough Group,”which includes Schering-Plough Corp. and Warrick PharmaceuticalsCorp.; “The Sicor Group,” which includes Sicor, Inc., Gensia,Inc., and Gensia Sicor Pharmaceuticals, Inc.; TAP PharmaceuticalProducts, Inc.; and Watson Pharamaceuticals, Inc.
the Defendant pharmaceutical manufacturer companies move to
After hearing, the Court ALLOWS IN PART and DENIES IN PART
of the antitrust laws; and (3) RICO claims involving multi-source
II. DISCUSSION
Plaintiffs allege that Defendants engaged in a pattern of
racketeering activity in violation of 18 U.S.C. § 1962(c) by
establishing the fraudulent AWP pricing scheme through the use of
interstate mails and wire communications. To state a RICO claim
under § 1962(c), a plaintiff must allege four elements: "(1)
conduct; (2) of an enterprise; (3) through a pattern; (4) of
racketeering activity.”4 See Libertad v. Welch, 53 F.3d 428, 441
(1st Cir. 1995). While pleadings are to be construed liberally,
“a greater degree of specificity is required in RICO cases.”
Bessette v. Avco Fin. Servs., Inc., 130 F.3d 439, 443 (1st Cir.
1. Enterprises
and (c) “deriving profits from these activities.” (¶ 628(a).)
Defendants argue that these allegations do not suffice to
plead an association-in-fact enterprise under the tests
established by the First Circuit. See Pharm. I, 263 F. Supp. 2d
at 182. The First Circuit has considered several factors in
determining whether a RICO association-in-fact enterprise has
been properly asserted: (1) whether the associates have a common
purpose; (2) whether there is systematic linkage, such as
overlapping leadership, structured or financial ties or
continuing coordination; (3) whether there is a common
communication network for sharing information on a regular basis;
(4) whether the associates hold meetings and sessions where
important discussions take place; (5) whether the associates wear
common colors, signs or insignia to make the group identifiable;
and (6) whether the group conducted common training and
According to the AMCC, each manufacturer-publisher
enterprise “has a systematic linkage because there are
contractual relationships, financial ties, and continuing
coordination of activities” between the participants and a
“common communication network” through which the participants
“share information on a regular basis.” (See, e.g., ¶ 628.) The
primary communication between the participants in each alleged
enterprise is the sending of the allegedly fraudulent AWP’s by
the manufacturer to the publisher for publication. (¶ 625.) The
AMCC alleges that the publishers know of the fraudulent nature of
the reported AWP’s (¶ 626), but they publish the information
anyway. The AMCC alleges that “each one of the Publishers was
aware of the Defendant Drug Manufacturers’ AWP scheme, was a
knowing and willing participant in that scheme, and reaped
profits from that scheme.” (¶ 212.) Finally, according to the
AMCC, “[e]ach of the enterprises has the common purpose of
perpetuating use of the AWP’s”: the manufacturers wish to push
the spread to increase their market share, and the publishers
have an economic incentive to publish without question the prices
reported “because if they did not, the manufacturers could easily
revert to the other methods of publishing prices or the
publishers would have to independently investigate the AWP at
These allegations of an association-in-fact enterprise fall
short in two ways. An enterprise must be “a group of persons
associated together for a common purpose of engaging in a course
of conduct.” United States v. Tourette, 452 U.S. 576, 580
(1981). The participants, as described, do not share a common
purpose more specific than that common to many human endeavors,
the reaping of a profit. The publishers are indifferent as to
whether the AWP spread exists or not; their financial interest
lies in earning money through selling books listing numbers. The
spread is irrelevant to their financial well being.
Further, Plaintiffs do not cite sufficient facts to support
the allegation that the publishers know of the fraudulent nature
of the AWP’s they publish. Plaintiffs rely on surveys by unnamed
publishers undertaken prior to 1992 regarding unnamed drugs, but
the allegations in the complaint relate to behavior beginning in
1991. They also point to reports on AWP inflation by
Congressional bodies and government agencies, and a recent
lawsuit brought by Defendant Dey seeking to force publishers to
publish the AWP it reports rather than the true price of its
drugs, after publishers lowered its AWP’s following a Texas
prosecution of Dey for AWP fraud. While some of these factors
may support an inference that some publishers may have been aware
of concerns by governmental entities about inflated AWP’s, they
are insufficient to draw a reasonable inference that each of the
publishers knew of the fraudulent nature of the AWP’s for the
Plaintiffs further insist that “each of the manufacturer-
publisher enterprises has a common purpose of perpetuating the
use of AWP’s as a benchmark for reimbursement in the
pharmaceutical industry” (¶ 624), thus skirting the issue of
whether the publishers knew of the fraud. It is true that the
use of AWP as a pricing benchmark may be a common objective, and
the members of an enterprise do not have to share all objectives
so long as they have one in common. See, e.g., United States v.
Plaintiffs do not attempt to allege the remaining factors
(meetings, joint training, etc.) relevant to a determination of
whether an association-in-fact existed. The publishers’ printing
of fraudulent AWP’s under a contract with the manufacturers does
(b) The Manufacturer - PBM Enterprises 
spreads” between actual drug costs and the prices charged to
health plans and their members; and (3) keeping “secret
discounts” provided by the drug manufacturers in association with
the PBM’s mail-order operations. (¶ 654.)
The paradigms here are somewhat different from the paradigm
in the Medicare Part B context, discussed in Pharm. I. First,
the AMCC alleges that the PBM benefits because it pockets the
spreads between the published AWP’s for brand-name drugs, which
it uses to calculate the rates it charges to end-payors (e.g.,
AWP minus 13 percent), and the actual prices which it pays the
retail pharmacies (e.g., AWP minus 15 percent). (See ¶ 171.)
Second, there is a “spread” in PBM mail-order operations in which
the PBM acts as a pharmacy between the published AWP price and
the actual acquisition cost. (Id.) Finally, the PBM pockets
spreads in the mail-order context in which a third-party
“repackager” is used between the rates charged to end-payors and
The “spreads” motivate the PBM’s to put the brand-name drug
on a formulary: the greater the AWP inflation, the greater the
profit to the PBM from the spread. (Id.) Each manufacturer
benefits from a spread because it encourages PBM’s to sell that
manufacturer’s drug, rather than a competitor’s.
brand-name drugs sent from manufacturers to PBM’s; (2) written
representations of the AWP’s sent by the manufacturers; (3)
“thousands of written and oral communications discussing,
negotiating and confirming the placement of a Defendant drug
manufacturer’s drug on a particular PBM’s formulary”; and (4)
written communications, including checks, relating to rebates,
kickbacks and other financial inducements. (¶ 666(a)-(i).)
Additionally, salespersons from manufacturers regularly meet with
PBM’s in order to promote their products and the fraudulent AWP
scheme. (¶¶ 664, 667(e).) Plaintiffs allege that Defendants
controlled, inter alia, the setting of the AWP’s, the
distribution of marketing material used to inform the PBM’s of
the benefits of using AWP’s, and the affairs of the PBM’s by
providing rebates and administrative fees in exchange for the
PBM’s use of a particular manufacturer’s AWP’s. (¶ 667.)
These allegations provide a plausible common fraudulent
purpose (a falsely-inflated AWP) and describe systematic
linkages, common communication networks, and regular meetings
among associates. It is true that Plaintiffs have not alleged
specific communications for each enterprise, but courts have
recognized that relaxation of pleading requirements is permitted
where information is in a defendant’s sole possession. See,
e.g., Efron v. Embassy Suites (P.R.) Inc., 223 F.3d 12, 16 (1st
Cir. 2000). Such relaxation is particularly appropriate here
where most of the Defendants have conceded that AWP’s represent
only an “undiscounted sticker price” that has no direct relation
to the actual average price they charge for their drugs and that
this is a widespread pricing and reporting practice. Pharm. I,
Conduct or Participate in the Conduct
required a “degree of direction” which can be direct or
Defendants argue that, at best, the AMCC alleges that they
were simply conducting their own affairs, not participating in
the enterprises. As noted above, the AMCC alleges that the
Defendants were not simply acting legally to promote their
products, but rather promoted the fraudulent AWP scheme. By
directing the affairs of each enterprise through kickbacks and
other financial incentives to PBM’s, the Defendants sought to
take advantage of an honor system established for price reporting
3. Causation
support its finding that the defendant’s actions were not the
proximate cause of the plaintiff’s injuries: first, how
difficult it is “to ascertain the amount of a plaintiff’s damages
attributable to the violation, as distinct from other,
independent factors”; second, whether holding the defendant
liable “would force courts to adopt complicated rules
apportioning damages among plaintiffs removed at different levels
of injury from the violative acts, to obviate the risk of
multiple recoveries”; and third, whether “the need to grapple
with these problems is simply unjustified by the general interest
in deterring injurious conduct, since directly injured victims
can generally be counted on to vindicate the law as private
attorneys general.” Holmes, 503 U.S. at 269-70.
Here, Defendants argue that the alleged predicate acts are
not the proximate cause of Plaintiffs’ alleged injuries, for
there are intervening acts between Plaintiffs’ alleged injuries
and the alleged acts of the Defendants. Specifically, Defendants
note that the alleged misrepresentations were made to third-party
publishers, not Plaintiffs; that the prescribing doctors set
their own charges under Medicare; that numerous government
actors, including Congress and carriers, chose to base their
reimbursements on AWP; and finally, that any injury arising from
a Manufacturer-PBM enterprise was not proximately caused by the
Defendants, but rather by the PBM’s or the Plaintiffs themselves.
The Defendants’ arguments are not persuasive. In the
private, end-payor context, the harm alleged by Defendants’
alleged actions is visited directly upon the end-payor
Plaintiffs, as they have paid directly for the named drugs based
on the AWP’s. Similar arguments about intervening causes between
the setting of an AWP by a defendant and injuries to plans and
individual co-payors were recently rejected as “border[ing] on
the frivolous,” In re Lupron Marketing and Sales Practices
Litig., 295 F. Supp. 2d 148, 175 (D. Mass. 2003) (Stearns, J.),
for “the argument ignores . . . the corollary requirement that
the intervening act be unforeseeable and completely independent
of any act undertaken by the original actor,” id., a requirement
The conclusion that proximate cause exists is supported by
the reasoning set forth in Holmes: the Defendants do not argue
that there would be any particular difficulty in allocating
damages; there are no other victims that will be sharing in the
amounts claimed by Plaintiffs; and as the Plaintiffs are the ones
directly injured, no other party is better placed to vindicate
4. Rule 9(b)
statements between PBM’s and manufacturers; (2) Plaintiffs have
not linked particular drugs to particular PBM’s; (3) Plaintiffs
have not identified the prices they paid for each drug (thus
allowing for a calculation of the “spread” in some cases) or the
mechanisms within their contracts for calculating prices; (4) the
allegations of volume discounts, rebates, credit memos, and the
like are devoid of particulars; (5) Plaintiffs fail to specify
the states in which drugs were purchased; (6) certain Plaintiffs,
including the associations, did not allege the purchase of any
drugs from certain Defendants; (7) Plaintiffs have failed to
allege competitors for each drug; and (8) Plaintiffs do not
allege that certain drugs were purchased under Medicare Part B.
In Pharm. I, the Court held that in light of the detailed
fraudulent scheme alleged, the plaintiffs’ allegations were
sufficient with respect to “any drug identified in the complaint
together with the allegedly fraudulent AWP published by a named
defendant for that drug.” 263 F. Supp. 2d at 194. The Court
instructed that if plaintiffs were to file an amended complaint,
“plaintiffs shall clearly and concisely allege with respect to
each defendant: (1) the specific drug or drugs that were
purchased from defendant, (2) the allegedly fraudulent AWP for
each drug, and (3) the name of the specific plaintiff(s) that
With respect to most Defendants, the Court finds that
Plaintiffs in the AMCC have pled allegations concerning the
fraudulent scheme with enough specificity to comply with the
requirements of Rules 9(b) and 8(a). See Franklin ex rel. v.
1. The claims by a Plaintiff association against a
Defendant manufacturer are dismissed unless a member of that
association is alleged to have purchased a drug from that
2. The Court continues to defer ruling on the juridical
linkage doctrine as that issue is more properly resolved in the
context of class certification. See Payton v. Kane, 308 F.3d
673, 679-80 (7th Cir. 2002) (holding that a court should consider
“issues of class certification prior to issues of standing” and
pointing out that once a class is properly certified “standing
requirements must be assessed with reference to the class as a
whole, not simply with reference to the individual named
plaintiffs”). Accordingly, so long as there is one named
Plaintiff who purchased a drug from a Defendant, the Court will
not dismiss the claims of fraud involving other drugs
manufactured by that Defendant even if none of the named
Plaintiffs purchased that particular drug. The Court declines
the invitation at this early stage of the litigation to evaluate
intricate arguments involving standing (for example, whether a
plaintiff who has standing with respect to a Medicare Part B drug
has standing to represent a purchaser of a drug under a private
plan), although these issues may be appropriate in a typicality
analysis under Fed. R. Civ. P. 23(a)(3).
an industry-wide practice of inflating AWP’s, the Court rejects
arguments that Plaintiffs must allege a specific spread for each
drug, so long as sufficient facts were alleged to infer a
fraudulent scheme by each particular Defendant manufacturer
(i.e., government investigations concerning that company,
internal company documents, specific alleged fraudulent spreads
on other drugs manufactured by that company and the like). The
allegations not meeting this standard are discussed below.
discussing benefits of spread).) I agree with Hoffman-La Roche
that this pleading implicating another defendant is not
particular enough to infer that Hoffman-La Roche engaged in
Plaintiffs further argue that under First Circuit precedent,
the proper course is to permit discovery, noting that unlike the
other Defendants, Hoffman-LaRoche has never been subject to
discovery. See New England Data Serv., Inc., v. Becher, 829 F.2d
286, 290-91 (1st Cir. 1987) (“[W]here, for example the specific
allegations of the plaintiff make it likely that the defendant
used interstate mail . . ., and the specific information as to
use is likely in the exclusive control of the defendant, the
court should make a second determination as to whether the claim
as presented warrants the allowance of discovery and if so,
thereafter provide an opportunity to amend the defective
complaint.”); but see Feinstein v. Resolution Trust Corp., 942
F.2d 34, 44 (1st Cir. 1991) (noting that “[a]lthough Becher may
in certain circumstances give a plaintiff a second bite at the
apple, its generous formulation is not automatically bestowed on
Here, the Court makes the second determination that
discovery is not warranted. Unlike in Becher, where the
complaint contained other allegations of particular facts with
regard to the defendants, 829 F.2d at 287, no specifics have been
alleged as to the conduct of Hoffman-LaRoche. Therefore,
Hoffman-La Roche’s motion to dismiss is ALLOWED. 
the AWP’s of competing generic drug manufacturers. The federal
government issues a MAC price for generic products that have
three or more manufacturers or distributors on the market. PBM’s
sometimes utilize this MAC reimbursement publication, and
sometimes calculate a maximum allowable cost based on their own
formulae, which utilize the list average wholesale prices of
competing generic drug manufacturers. The use of a maximum
allowable cost based on the list average wholesale price is
termed in the industry as the “average average wholesale price.”
In the public payor arena under Medicare Part B, multi-
source drugs or biologicals are reimbursed on the basis of the
lessor of the median AWP of all of the generic forms of the drug
or biological, or the lowest brand-name product AWP, with the
resulting price confusingly being also termed “AWP”. (¶ 149
(citing Program Memorandum AB-99-63 (Sept. 1999)).)
The raising of an individual Defendant’s reported AWP for a
multi-source drug can (but does not necessarily) raise the median
AWP at which the generic drug is reimbursed. Moreover, while any
one generic manufacturer can only affect the median generic
reimbursement for AWP for a product, rather than directly
affecting its own drug’s reimbursement. Defendants still benefit
from the spread between the median AWP and the actual prices
paid. (¶ 186.) According to the AMCC, “[t]he natural and
expected result of this ‘leap frogging’ of increasing AWPs is
that multi-source drugs have some of the highest spreads of any
drugs, sometimes resulting in an AWP over 50,000% over actual
costs.” (¶ 187.) For example, Baxter publishes the AWP for
Sodium Chloride at $928.51, while the DOJ determined that the
actual AWP was $1.71, a percentage spread of 54,199%. (¶ 187,
Defendants argue that the allegations regarding the
underlying fraudulent scheme for multi-source drugs are
insufficient under Rule 9(b). Defendants reason that they have
no motive to compete by increasing the “spread” between the
average wholesale price of multi-source drugs and the actual
price of such drugs to providers, because Medicare Part B pays
for multi-source drugs at “the lesser of the median average
wholesale price for all sources of the generic forms of the drug
or biological or the lowest average wholesale price of the brand
name forms of the drug or biological.” 42 C.F.R. § 405.517
(2003). No one drug maker could gain an advantage by
leapfrogging the AWP over a competitor’s, Defendants argue, as
reimbursement is based on the median. For similar reasons, there
is no reason to compete with regard to non-Medicare Part B,
multi-source drugs, which are reimbursed based on MAC’s.
Plaintiffs respond that prices of multi-source drugs are
often based on AWP in the private payor context, giving drug
makers the same incentive to increase AWP. In any event, at this
stage of the proceeding, Plaintiffs are not required to prove
motive, see Fed. R. Civ. P. 9(b), and the allegations are
specific enough to accord with Fed. R. Civ. P. 9(b).
The AMCC makes the following allegations regarding the
Together Rx Program. In 2001 or 2002, the Together Rx Defendants
agreed to establish a program to offer drug discounts to older,
uninsured and poor consumers. (¶¶ 542-544.) To implement the
program, they fixed the AWP “spread” (the difference between
published AWP and the wholesale acquisition cost or “WAC”) on
over 170 widely-prescribed brand-name drugs purchased through the
program (“Together Card drugs”). (¶ 544.) The Together Card
Program has caused Plaintiffs and the nationwide end-payor
Together Card class to pay more for Together Card drugs. (¶
545.) Plaintiffs therefore allege a conspiracy “to raise, fix,
maintain and/or stabilize” the AWP spread. (¶ 545.) Another
purpose of the program, according to the AMCC, was to allow the
Together Rx Defendants to respond to public pressure over
escalating drug costs. (¶ 550.) The Together Rx Program was
As proof of this scheme, Plaintiffs allege that the Together
Rx Defendants simultaneously and uniformly increased the spreads
between posted AWP’s and WAC’s on over 80% of their Together Card
drugs in order to provide an incentive to others in the
distribution chain to participate in the program, an incentive
6 Defendants address the non-antitrust claims only summarily
that operated to the detriment of end-payors (like insurance
companies and health plans). (¶¶ 588-591.) The effectively-
simultaneous timing of the Together Rx Defendants’ increases in
AWP spreads is unprecedented in terms of the number of products
per manufacturer and number of manufacturers within the
pharmaceutical industry. (¶ 592.) Notably, each of the seven
Together Rx Defendants achieved precisely a 25% spread following
the formation of the program as shown below. (¶ 591.)
Together
increase of the AWP spread on Together Card drugs diluted any
meaningful discount for the relatively small number of eligible
consumers and raised the price for other consumers significantly
beyond what was charged prior to the Together Card Defendants’
formation of the alliance.” (¶¶ 10, 593.)
Defendants contend that all conspiracy counts should be
dismissed because the factual allegations “make no economic
sense” and because Plaintiffs lack standing. The standard
governing motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
applies to an antitrust claim. See Caribe BMW, Inc. v.
Puerto Rico, Inc., 332 F.3d 6, 12 (1st Cir. 2003). First, the
plaintiff must show concerted action between two or more separate
parties. Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752,
761 (1984). Second, the plaintiff must show that such action
unreasonably restrains trade. NYNEX Corp. v. Discon, Inc., 525
U.S. 128, 133 (1998). A small set of acts constitute per se
violations of Section 1 because the acts are regarded by the
Court “as sufficiently dangerous and so clearly without redeeming
value that they are condemned out of hand, that is, without a
showing of wrongful purpose, power or effect.” Eastern Food
Servs., Inc. v. Pontifical Catholic Univ. Servs., Inc., 2004 WL
110844, at *2 (1st Cir. Jan. 20, 2004). Thus, “proof of the
defendant’s power, of illicit purpose and, of anticompetitive
effect” are irrelevant. U.S. Healthcare, Inc. v. Healthsource,
Inc., 986 F.2d 589, 593 (1st Cir. 1993).
Price fixing agreements qualify for the per se label.
“Stabilizing prices as well as raising them is within the ban of
§ 1 of the Sherman Act.” United States v. Container Corp. of
Am., 393 U.S. 333, 337 (1969). “Under the Sherman Act a
combination formed for the purpose and with the effect of
raising, depressing, fixing, pegging, or stabilizing the price of
a commodity in interstate or foreign commerce is illegal per se.”
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 223 (1940).
Defendants’ core argument is that Plaintiffs have not
alleged an economically plausible theory because Defendants have
no economic incentive to collude to increase AWP’s or the “AWP
spread” on Together Rx drugs. The Supreme Court has held that
“if the factual context renders [plaintiff’s] claim implausible –
if the claim is simply one that makes no economic sense –
[plaintiff] must come forward with more persuasive evidence to
support their claim than would otherwise be necessary.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
specifically alleged in the AMCC, Novartis offered its drugs to
Together Rx Card holders with incomes less than $24,000 for a
flat fee of $12 per prescription. The difference between $12 and
the price the pharmacy charges for the drug is the amount of the
subsidy provided by Novartis. (¶ 558.) Defendants argue that an
increase in AWP spread would actually hurt each drug company,
which would have to pay more in subsidies to each retail pharmacy
with no offsetting increase in revenues. In another type of
Together Rx transaction alleged by Plaintiffs, the manufacturer
pays a specific dollar subsidy and the cardholder pays the
difference between that subsidy and the pharmacy’s selling price.
With respect to this type of transaction, Defendants point out,
increasing the spread between WAC and AWP does not increase the
revenue the Defendant manufacturer receives. Therefore,
Defendants argue, the theory behind the entire alleged conspiracy
Plaintiffs argue that a conspiracy which stabilizes a
volatile market and fixes both prices and discounts is a classic
example of a horizontal, per se violation of the Sherman Act.
The AMCC alleges that the Together Card Program was created, at
least in part, to stave off congressional and public scrutiny.
(¶ 550.) Moreover, from an economic viewpoint, Plaintiffs argue,
increasing the AWP spread on the 170 drugs would shift the
financial burden of the Together Card Program onto non-Together
Rx third party end-payors and create “spread dollars” for others
in the distribution chain (like pharmacies and wholesalers). In
other words, it functions as a cross-subsidy placed on end-payors
to incentivize these other entities to participate in the
In light of the extremely complex nature of drug pricing,
the record is inadequate for fully evaluating either argument.
It is worth pointing out, however, that Defendants have not given
a plausible reason why they all simultaneously created the same
spread for market based reasons. At this stage, with all
reasonable inferences drawn in their favor, Plaintiffs have not
alleged an implausible economic or political theory.
Defendants also argue that parallel price movements alone
are insufficient to establish a conspiracy. Clamp-All Corp. v.
246, 253 (2d Cir. 1987). Such circumstances might include a
common motive to conspire or a high level of inter-firm
communications. Id. at 254 (citations omitted). See also
Illinois Corp. Travel v. American Airlines, 806 F.2d 722, 726
(7th Cir. 1985) (explaining that “to show conspiracy indirectly
the plaintiff must demonstrate that the firm is behaving in a way
that is inconsistent with unilateral decisionmaking,” i.e., that
“the defendant acted in a way that, but for a hypothesis of joint
action, would not be in its own interest”).
(S.D.N.Y. Nov. 19, 2001) (dismissing complaint where “plaintiffs
do not allege, as they must” when or where any unlawful agreement
was made, or by whom, or why the parties would enter into this
agreement, or that uniform pricing policies are “anything other
than independent, parallel conduct meant to maximize each party’s
own revenues”). The Together Rx Plaintiffs, by contrast, have
alleged parallel movements, as well as sufficient “plus” factors
2. Standing
F.3d 10, 14 (1st Cir. 2001) (“Although we technically balance the
six factors [articulated in Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters, 459 U.S. 519 (1983)] to
determine if standing is appropriate, this Court has emphasized
the causation requirements of that test.”); Morales-Villalobos v.
Source: http://www.srkw-law.com/downloads/AWP_2-26-04Ordermtd.pdf
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