Express Scripts, Inc. v. Walgreen Co.

Filing 1

COMPLAINT (as redacted for confidentiality) filed by Express Scripts, Inc.; Filing fee $ 350, receipt number 0752-6354317. (Attachments: # 1 Exhibit 1 (redacted), # 2 Exhibit 2 (redacted), # 3 Exhibit 3 (redacted), # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(White, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EXPRESS SCRLPTS, INC.,
a Delaware Corporation,
Case No.

Plaintiff,
V.
WALGREEN CO.,
an Illinois Corporation,

)
)

)

Defendant.

)

VERIFIED COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF
Plaintiff, Express Scripts Inc, ("Express Scripts"), by and through its
attorneys, and for its Verified Complaint for Injunctive and Other Relief against
Defendant, Walgreen Co. ("Walgreens"), respectfully requests the Court grant
injunctive relief pursuant to Federal Rule of Civil Procedure 65 to stop Walgreens'
unlawful activities and, in support thereof, states as follows:
THE PARTIES

1. Express Scripts, a Delaware corporation with its principal place of
business in St. Louis, Missouri, is a leading pharmacy benefit management
company ("PBM") that provides a full range of prescription drug benefit
services to its clients, which include employers, HMOs, health insurers, thirdparty administrators, union-sponsored benefit plans, workers' compensation
plans, and government health plans.

SLC-6445812-1

2.

Express Scripts' mission is to make prescription drugs safer and

more affordable. Express Scripts provides value to its clients by reducing waste
and inefficiency in the pharmacy drug distribution chain.
3.

Through various Pharmacy Provider Agreements, Express Scripts

establishes and maintains retail pharmacy networks by entering into Pharmacy
Provider Agreements with more than 60,000 retail pharmacies that dispense
drugs to members of Express Scripts' health plan clients. Pursuant to these
Pharmacy Provider Agreements, the Provider pharmacy dispenses prescription
drugs to eligible Express Scripts plan participants and members and the Provider
is then reimbursed by Express Scripts at an agreed upon rate.
4.

Walgreens, an Illinois corporation with its headquarters and

principal place of business in Deerfield, Illinois, is the largest retail pharmacy
chain in the United States and currently operates more than 7,000 retail
pharmacies located across all 50 states, the District of Columbia and Puerto
Rico, with net sales of $67.4 billion in the fiscal year ended August 31, 2010.
(Walgreens' 2010 Form 10-K).
5.

Pursuant to a Pharmacy Provider Agreement entered into with

Express Scripts on January 1, 2009, Walgreens' retail pharmacies participate in
Express Scripts' national commercial and Medicare Part D retail pharmacy
network. The Pharmacy Provider Agreement remains in effect until December
31, 2011 and along with its Amendments, is attached as Exhibit 1.

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NATURE OF THE CASE

6.

This is an action for false advertising in violation of the Lanham Act,

15 U.S.C. §1125(a), and breach of contract under Illinois law in which Plaintiff
seeks damages and injunctive relief pursuant to Fed R. Civ. P. 65 to prohibit
false advertising in violation of the Lanham Act (15 U.S.C. § 1125(a)(1)(B)),
and enforce non-discrimination, non-disparagement, non-solicitation, and antisteering provisions in a Pharmacy Provider Agreement between Express Scripts
and Walgreens. Under the Pharmacy Provider Agreement, Walgreens dispenses
pharmaceuticals to individuals who participate in Prescription Drug Programs
provided by Express Scripts for Medicare Part D participants, health plans, and
other plan sponsors.
7.

The Pharmacy Provider Agreement gives Walgreens access to over

60 million Express Scripts members, including approximately 2.5 million
Medicare Part D members. In exchange for this access, Walgreens agreed to
dispense pharmaceuticals to Express Scripts members at negotiated discounted
rates and agreed, among other things, that it would not attempt to disenroll any
Express Scripts member and or market, promote, or prefer, any Medicare Part D
Plan over another plan, including those offered by Express Scripts.
8.

The current Walgreens/Express Scripts Pharmacy Provider

Agreement expires December 31, 2011. Negotiations for a new agreement have
broken down, and Walgreens terminated contract renewal negotiations.

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9.

Since terminating contract renewal negotiations, Walgreens has

launched an aggressive campaign to disparage Express Scripts, disenroll Express
Scripts' commercial and Medicare Part D members and to promote and prefer
other Medicare Part D programs to the exclusion of those offered through
Express Scripts. This is exactly what Walgreens expressly promised that it
would not do, and Walgreens actions are in direct violation of the Pharmacy
Provider Agreement.
10. As part of this campaign to disenroll Express Scripts members,
Walgreens also has published and distributed a wave of marketing and
promotional materials which disparage Express Scripts and falsely state that,
after December 31, 2011, Walgreens will be unable to fill prescriptions for
Express Scripts members. This is false and highly misleading because nothing
will prohibit Walgreens from continuing to fill valid prescriptions for such
members after December 31, 2011, even if Walgreens is not a part of Express
Scripts' pharmacy network.
11. Unless enjoined by this Court, Walgreens' ongoing breach of the
Pharmacy Provider Agreement and publication of false promotional and
marketing materials will greatly disrupt the orderly transition of tens of
thousands of plan participants' prescriptions and cause irreparable and
immeasurable damage to Express Scripts and its clients.

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12. Timing is of the essence because Medicare Part D open enrollment
begins on October 15, 2011. Under Medicare Part D, a member remains
"enrolled" in a prescription drug plan ("PDP") until one of the following occurs:
i.

The individual successfully enrolls in another PDP;

ii.

The individual voluntarily disenrolls from the PDP; or

iii.

The individual is involuntarily disenrolled from the PDP. 42.
C.F.R. § 423.32.

As 42 C.F.R. § 423.36 explains, "an individual may disenroll from a
[prescription drug plan] by enrolling in a different PDP plan...." During this
process, Medicare Part D beneficiaries either stay with their current health plan
or disenroll and make a switch to a different plan. Walgreens' false and
misleading statements breach the Pharmacy Provider Agreement because,
among other reasons, they are designed to encourage Medicare Part D members
and others to disenroll from health plans who are clients of Express Scripts.
JURISDICTION AND VENUE

13. This Court has personal jurisdiction over Walgreens because it
transacts business in Illinois, breached contractual obligations, and engaged in
wrongdoing in Illinois.
14. This Court has subject matter jurisdiction over this action pursuant
to 15 U.S.C. § 1121, 28 U.S.C. §§ 1331, 1338, and 1332 because the amount in
controversy exceeds $75,000 and Express Scripts is not a citizen of the same
state as Walgreens.
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15. Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391
because the claim arises out of incidents occurring in this judicial district and
because Walgreens resides and conducts business in this judicial district.
THE WALGREENS/EXPRESS SCRIPTS RELATIONSHIP
AND PHARMACY PROVIDER AGREEMENT

16. Walgreens currently participates in one or more of ESI's retail
pharmacy networks under the terms of the parties' Pharmacy Provider
Agreement, as amended, which became effective on January 1, 2009 (the
"Pharmacy Provider Agreement"). The Pharmacy Provider Agreement remains
in effect until December 31, 2011 and along with its Amendments, is attached as
Exhibit 1.
17. Under the Pharmacy Provider Agreement, Walgreens dispenses
pharmaceuticals to individuals who participate in Prescription Drug Programs
provided by Express Scripts for both commercial and Medicare Part D
participants, health plans, and other plan sponsors.
18. The relationship provides benefits to both parties. The Pharmacy
Provider Agreement gives Walgreens access to over 60 million Express Scripts
members from whom Walgreens enjoys revenues for sales of prescription drugs
in addition to its other general merchandise.
19. In exchange, Walgreens agreed to dispense pharmaceuticals to
Express Scripts members at agreed-upon rates and agreed, among other things,
that it would not disparage Express Scripts, would not attempt to disenroll any
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SLC-6445812-1

Express Scripts member, and would not market, promote, or prefer, any
Medicare Part D Plan over another plan, including those offered by Express
Scripts.
20. Specifically, the parties agreed that "

,,

(Pharmacy Provider Agreement, Exhibit 1 at § 2.10) (emphasis added).
21. Further, under the Medicare Addendum to the Pharmacy Provider
Agreement, Walgreens agreed that it
(Id.; Medicare

Addendum, § 11.7) (emphasis added).
22. And Section 8.1 of the Pharmacy Provider Agreement prohibits
Walgreens from "

23. Section 8.1 broadly defines "

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SLC-6445812-1

THE BEGINNINGS OF WALGREENS' CAMPAIGN
TO DISPARAGE, SOLICIT, DISENROLL, AND
STEER EXPRESS SCRIPTS MEMBERS

24. Knowing that the Pharmacy Provider Agreement terminates at the
end of 2011, Walgreens and Express Scripts began negotiating a new agreement
in February 2011. Those negotiations broke down in late June 2011 when
Walgreens terminated the negotiations.
25. In late July 2011, Express Scripts learned that Walgreens began to
initiate a marketing campaign specifically targeted to disenroll members from
Express Scripts' Medicare Part D programs.
26. Express Scripts immediately sent a cease and desist letter to
Walgreens' legal department notifying them that under the current Pharmacy
Provider Agreement they agreed that they would not "attempt to disenroll any
Member" and that they would not "under any circumstances, promote or prefer
any Part D Plan over another." (Ex. 2, July 27, 2011, Cease and Desist at p. 2).

Under the Pharmacy Provider Agreement, Wal eens' violation of the nondis a a ement irovision entitles Ex. -ess Sc i s
2

and

id.) Aeeuidingiy, NA, algieens has specilicall acknowled ed
e d that its breach of the non-dis ara ement •rovision
(Id.)
8

SLC-6445812-1

27. Walgreens' Divisional Vice President, Bryan Schneider, Esq.
responded by letter dated August 5, 2011, informing Express Scripts that it did
not intend to "promote or prefer any Medicare Part D plan," and that Walgreens
"has not attempted, in this letter or otherwise, to disenroll any individual from
its current plan." (Ex. 3, August 5, 2011, correspondence from Bryan A.
Schneider at pp. 2-3).
28. Despite the express assurances in Mr. Schneider's letter, it is now
clear that Walgreens was devising a campaign to do exactly what it said it would
not do—disenroll Express Scripts members and promote and prefer Medicare
Part D plans over those offered by Express Scripts.
DESPITE ITS PROMISES, ON SEPTEMBER 1, 2011
WALGREENS LAUNCHED AN AGGRESSIVE MEDIA CAMPAIGN TO
DISENROLL EXPRESS SCRIPTS' MEMBERS IN
DIRECT BREACH OF THE PROVIDER AGREEMENT

29. On or about September 1, 2011, Walgreens launched an aggressive
media campaign to disenroll Express Scripts' Members in direct breach of the
Pharmacy Provider Agreement.
30. For example, Walgreens Chief Client Officer, Joe Ten -ion, began
sending letters directly to Express Scripts' commercial clients "strongly
encourag[ing]" them to disenroll in plans with coverage through Express Scripts
and choose plans with "Walgreens' coverage." (Ex 4). The letter listed specific
non-Express Scripts plans that Walgreens recommended they select after
disenrolling from their current plan with Express Scripts. (Id.).
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SLC-6445812-1

31. At about the same time, Walgreens also sent flyers intended to be
distributed to Express Scripts' members that included ghost-written letters from
Walgreens. (Ex. 5). The flyers tell members to "let your voice be heard!" and
"choose Walgreens." (Id.).
32. On or about September 1, 2011, Express Scripts learned that
Walgreens also had launched a website—www.ichoosewalgreens.comspecifically targeting Express Scripts commercial and Medicare part D clients
and members. (Ex. 6, vvvvw.ichoosewalgreens.com).
33. Below is a copy of the Walgreens website showing Walgreens'
disenrollment campaign, targeting all aspects of Express Scripts' PBM business,
members, and client base.

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SLC-6445812-1

Ernst I

I Choose

RocoPo updates on hoe to pallioloalo In a plan that
Includes Wolgroons In Rs noPeork.
vPwoot Qdlne.P.Omy a n•o-tulti.Ealloy

At Walgreens, our mission Is to be the most trusted, convenient multi-channel provider
and advisor of innovative pharmacy, health and wellness solutions, consumer goods
and services in communities across America.
Unfortunately, our contract renewal negotiations with pharmacy benefit manager
Express Scripts, Inc. have been unsuccessful, and as a result, we will likely not be

part of Express Scripts' pharmacy provider network as of January 1, 2012.

To express your desire to continue to choose Walgroens as your pharmacy provider, please click on the
button below that applies to you to show the recommended action to . take.

IF1ICAF1E Pion Into

Please refer back to this webslte periodically for more information on how
to participate in a plan that Includes Walgreens In Its network.

1131cool Mew Macke* a Tonle of Uee ,, Online P,Nroy 8 Secullty
C/Corryithl 2011 Welyrton Co. Al right. vestnied.

34. The new website took Walgreens' efforts to an entirely new level,
offering pre-drafted petitions to the Department of Defense, letters "ghostwritten" by Walgreens to be sent to Express Scripts' employer sponsored plans
to encourage dropping Express Scripts, and perhaps most egregious, a direct
campaign to disenroll members from Medicare Part D plans provided through
Express Scripts. (Id.).
35. In particular, Walgreens instructed Express Scripts Medicare Part D
members that they "will need to select a different plan that includes Walgreens

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5LC-6445812-1

during the Medicare Annual Election Period from October 15 through December
7, 2011." (Id.) (emphasis added).
36. Finally, on Tuesday, September 6, 2011, Express Scripts learned that
Walgreens sent a high-priority internal directive to its "Managers, Pharmacy
Managers, Senior Techs and the whole store/pharmacy 1 EAM" with detailed
instructions to disenroll, solicit, and steer Express Scripts' members away from
Express Scripts. (Ex. 7).
37. The directive told Walgreens' employees to "stand up and take
action against ESI."

(Id.) It also clearly outlines the intent of Walgreens'

Medicare Part D disenrollment campaign:

ESI is #1 Priority. Flu Shots #2....Plan comparison discussions
with Med Part D patients will begin on Oct. 15. These discussions
aim to move patients into a Med Part DI plan that includes

Walgreens.
38. There is no question that Walgreens' campaign is a blatant attempt
to disenroll Express Scripts members, including, and specifically targeting,
members participating in Express Scripts' Medicare Part D plans.
39. Under Medicare Part D, a member remains "enrolled" in a
prescription drug plan ("PDP") until one of the following occurs:
i.

The individual successfully enrolls in another PDP;

ii.

The individual voluntarily disenrolls from the PDP; or

iii.

The individual is involuntarily disenrolled from the PDP. 42.
C.F.R. § 423.32.

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SLC-6445812-1

40. As 42 C.F.R. § 423.36 explains, "an individual may disenroll from a
[prescription drug plan] by enrolling in a different PDP plan...."
41. As Walgreens acknowledges, the Medicare Part D timing is critical:
the Medicare Annual Election Period runs from October 15 through December
7, 2011. If Walgreens can convince members to disenroll from Express Scripts
during this period, they will be locked into non-Express Scripts' plans, and
unable to correct that selection for at least a year.
42. Most importantly, by actively encouraging members participating in
Express Scripts' Medicare Part D plans to "choose Walgreens" and "select a
different plan that includes Walgreens during the Medicare Annual Election
Period," Walgreens is attempting to disenroll members in open and direct breach
of the Provider Agreement. Under the Pharmacy Provider Agreement,
Walgreens expressly agreed that it would not attempt to disenroll any member.
(Ex. 1 at § 2.10).
43. Walgreens' Medicare Part D campaign also violates the Medicare
Addendum to the Pharmacy Provider Agreement, wherein Walgreens expressly
agreed that it would "not, under any circumstances, promote or prefer any Part
D Plan over another." (Id. Medicare Addendum at § 11.7) (emphasis added).
When Walgreens directs Express Scripts' members to "choose Walgreens" and
select a non-Express Scripts plan, there is no question Walgreens is promoting
Walgreens' covered plans to the exclusion of Express Scripts' covered Medicare

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SLC-6445812-1

Part D plans. Again, Walgreens' actions are in direct breach of the Pharmacy
Provider Agreement.
44. Walgreens' open breach of the Pharmacy Provider Agreement
through its disenrollment tactics threaten to cause immediate and irreparable
harm to Express Scripts, its clients, and members.
45. Approximately 2.5 million people are covered by Express Scripts'
Medicare Part D programs.
46. For example, if Walgreens can convince or confuse members into
disenrolling from their Express Scripts' plans during the upcoming Medicare
Annual Election Period, Express Scripts will have no adequate remedy, as its
clients and members will locked into non-Express Scripts' plans for at least the
next year.
47. In addition to a clear breach of the Pharmacy Provider Agreement,
upon information and belief, it appears that Walgreens is attempting to disenroll,
and influencing members to "choose Walgreens," not because of health and
safety concerns, but because Walgreens has the "potential for financial gain" if
it can influence Express Scripts' members to disenroll from Express Scripts'
client plans and "choose Walgreens."

(See Medicare Marketing Guidelines,

Section 70.12.2).
WALGREENS' FALSE STATEMENTS
48. To facilitate its campaign to disparage Express Scripts and disenroll
Express Scripts' members, Walgreens has engaged in false and misleading
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SLC-6445812-1

commercial marketing and advertising intended to deceive members into
believing that they will be unable fill prescriptions at Walgreens after December
31, 2011, unless they leave Express Scripts.
49. For example, Walgreens has created and widely distributed handouts
to customers that state in bold-face type that:

"Walgreens will be able to fill

Express Scripts prescriptions ONLY through Dec. 31. 2011." (See Ex. 5).
50. These handouts constitute advertising or promotional materials
issued by Walgreens regarding its products and services and the products and
services of Express Scripts.
51. As another example, Walgreens has created and widely distributed
letters "To members of the TRICARE pharmacy program," a program for which
Express Scripts serves as the PBM. (Ex. 8.) In those letters, Walgreens states
that "we will no longer be able to fill prescriptions for TRICARE members after
Dec. 31" and suggests that Express Scripts has refused "several options that
would allow Walgreens to continue serving" TRICARE members. (Id.).
52. Those letters to TRICARE beneficiaries constitute advertising or
promotional materials issued by Walgreens regarding its products and services
and the products and services of Express Scripts.
53. As another example, Walgreens' publicly-available "I choose
Walgreens" website, tells Medicare Part D plan members that "you will no
longer be able to fill your Part D prescriptions at Walgreens and Duane Reade
drug stores." Walgreens' website further instructs these Express Scripts'
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SLC-6445812-1

members to leave Express Scripts and "select a different plan that includes
Walgreens during the Medicare Annual Election Period from October 15
through December 7, 2011." (Ex. 6).
54. Walgreens' "I choose Walgreens" website constitutes advertising or
promotional material issued by Walgreens regarding its products and services
and the products and services of Express Scripts.
55. The statements referenced in Paragraphs 49-54 are intended to
confuse and deceive the recipients of those statements into believing that, after
December 31, 2011, they will not be able to fill prescriptions at Walgreens. The
statements are also likely to influence the customer's purchasing decisions;
otherwise, Walgreens would not direct such statements to them.
56. But the statements referenced in Paragraphs 49-54 are false and
misleading. In fact, there is nothing that would prohibit Walgreens from filling
a valid prescription from any Express Scripts' member, even if Express Scripts
is no longer under a network Pharmacy Provider Agreement with Walgreens
after December 31, 2011.
57. In truth, these Express Scripts members could continue to fill
prescriptions at Walgreens after December 31, 2011 if they elected to do so. Of
course, if Walgreens has not contracted with Express Scripts to provide them
with contracted discounts, then they would not receive the type of contracted
discounts they currently receive at Walgreens' locations. Walgreens, would,

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SLC-6445812-1

however, be free to charge that walk-in customer whatever amount it chooses to
charge them for the "convenience" of using a Walgreens' facility.
58. Through its misleading and false marketing, Walgreens is attempting
to deceive Express Scripts' members and clients into believing that their health
and safety is at risk unless they "choose Walgreens" and drop Express Scripts.
This type of false advertising is in clear violation of the Lanham Act. 15 U.S.C.
§ 1125(a)(1)(B).
COUNT I

(Breach of the Provider
Agreement by Walgreens)

59. Express Scripts realleges and restates paragraphs 1 - 58 as if fully
restated herein.
60. The Pharmacy Provider Agreement is a valid and enforceable
contract.
61. Express Scripts has fully performed all of its obligations under the
Pharmacy Provider Agreement.
62. As described in detail above, Walgreens has breached the Pharmacy
Provider Agreement by: (a) attempting to disenroll members in violation of
the Pharmacy Provider Agreement; (b) promoting or preferring
Medicare Part D plans over those offered through Express Scripts in violation of
of the Medicare Addendum to the Pharmacy Provider Agreement;
and (c) engaging in a campaign to disparage Express Scripts in violation of
111.111.1111 the Pharmacy Provider Agreement.
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SLC-6445812-1

63. Express Scripts, its clients, and members who depend upon Express
Scripts for their prescription drug benefits will suffer irreparable harm and have
no adequate remedy at law unless Walgreens is enjoined by the Court from
continuing its ongoing breach of the Pharmacy Provider Agreement.
64. Walgreens' breach cannot be fully remedied by monetary damages.

COUNT II
(False Advertising In Violation of The Lanham Act)
65. Express Scripts realleges and restates paragraphs 1-64 as if fully
restate herein.
66. Walgreens' statements, including the statements described in
paragraphs 48-56, constitute false or, at a minimum, misleading statements of
fact regarding Walgreens' and Express Scripts' products and services.
67. Walgreens' statements, including the statements described in
paragraphs 48-56, deceived or, at a minimum, had the capacity to deceive a
substantial segment of their audience. Moreover, those statements are material
and likely to influence the purchasing decision of the relevant audience.
68. Express Scripts has been damaged by Walgreens' actions, including
but not limited to a loss of goodwill.
69. Express Scripts will continue to suffer irreparable damage unless
Walgreens is restrained from continuing its campaign of false advertising and
promotion.

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70. Express Scripts has no adequate remedy at law to address
Walgreens' campaign of false advertising and promotion.
COUNT III
(For Preliminary and Permanent Injunctive
Relief Against Walgreens)

71. Express Scripts realleges and restates paragraphs 1-.70 as if fully
restated herein.
72. Express Scripts, its clients, and members who depend upon Express
Scripts for their prescription drug benefits will suffer irreparable harm and
injury as a result of Walgreens' contract violations and Walgreens' campaign of
false advertising and promotion.
73. Express Scripts' business will be injured, irreparably and otherwise
in amounts that will exceed $75,000 but that will also be difficult to determine
or calculate, as a result of Walgreens' conduct.
74. Express Scripts is likely to prevail on the merits on Count I because
Walgreens is in open breach of the Pharmacy Provider Agreement.
75. Express Scripts is likely to prevail on the merits on Count II because
Walgreens' advertising and promotional statements, as described in further
detail above, are false and have a tendency to deceive.
76. Injunctive relief is necessary as no adequate remedy at law exists.
Unless an injunction is issued, Express Scripts will suffer irreparable and
incalculable harm for which it can never be compensated.

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Wherefore, Express Scripts requests that judgment be granted in its favor
and against Walgreens, and that Express Scripts be granted:
a. Preliminary and permanent injunctive relief
prohibiting Walgreens from engaging in any conduct
or communications that direct or attempt to direct any
members to disenroll in Express Scripts' Medicare Part
D programs during the term of the Pharmacy Provider
Agreement, or through January 1, 2012;
b. Preliminary and permanent injunctive relief
prohibiting Walgreens from engaging in any conduct
or communications that promote or prefer any
Medicare Part D program over any Express Scripts'
program during the term of the Pharmacy Provider
Agreement, or through January 1, 2012;
c. Preliminary and permanent injunctive relief
prohibiting Walgreens from engaging in any conduct
or communications including, but not limited to,
contacting any media or any Sponsor or Sponsor's
Members or other party, designed to disparage Express
Scripts, or disenroll or steer members away from
Express Scripts, during the term of the Pharmacy
Provider Agreement, or through January 1, 2012;
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SLC-6445812-1

d. Preliminary and permanent injunctive relief
prohibiting Walgreens from stating, or making
statements suggesting that, it cannot accept a valid
prescription from an Express Scripts member after
December 31, 2011;
e. any and all money damages that can be proven by
Express Scripts, although such money damages will
not provide Express Scripts with an adequate remedy
and must be paired with injunctive relief;
f. its reasonable attorneys' fees and costs for
investigating and bringing this claim; and
g. all other necessary and appropriate relief.
Respectfully Submitted,
EXPRESS SCRIPTS, INC.

By:

James P. White
James F. Monafo (pro hac pending)
Christopher J. Valeriote (pro hac pending)
Christopher A. Smith (pro hac pending)
HUSCH BLACKWELL LLP
120 South Riverside Plaza
Suite 2200
Chicago, IL 60606
Phone: [phone]
Fax: [phone]
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SLC-6445812-1

s/James P. White
One of Its Attorneys

VERIFICATION

Under penalties as provided by law, the undersigned, Brit Pim, Vice
President and General Manager of Medicare & Medicaid at Express Scripts, Inc.,
being first duly sworn under oath, deposes and states that he has read the
foregoing Verified Complaint for Injunctive and Other Relief, and on the basis of
his personal knowledge, review of appropriate business records and discussions
with relevant knowable personnel, he believes the allegations contained therein are
true and correct except as to matters therein stated to be on information and belief,
and as to such matters, the undersigned certifies as aforesaid that he believes the
same to be true to the best of his knowledge, information, and belief. This
verification is made by deponent and not by Plaintiff because Plaintiff is a
corporation and deponent is a duly authorized representative thereof.

Brit. Pim
Vice President and General Manager of
Medicare & Medicaid at Express Scripts,
Inc.
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )

SS.

On this 6th day of September, 2011, before me appeared Brit Pim, to me
personally known, who being by me duly sworn did say that he is the Vice
President and General Manager of Medicare & Medicaid at Express Scripts, Inc., a
Delaware corporation, and that said instrument was signed and sealed in behalf of
said corporation by authority of its Board of Directors, and he acknowledged said
instrument to be the free act and deed of said corporation.

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SLC-6445812-1

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal in the City and State aforesaid,_the_day and year fir4 ove
Not PUblic
My Co* issi9n Expires:
• •." NOTARYSaA1:!"'
S. Louis
Notary Public

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