United States of America et al v. Biogen Idec Inc.

Filing 179

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER re: 139 Motion to Dismiss Relators Bawduniak and Villegass Third Amended Complaint Pursuant to Rules 8, 9(B), and 12(B)(6). The motion is is ALLOWED as to Counts 2, 4, 6-7, 9, 11-14, 16-19, 21, 24-25, 28-29, and 31, and DENIED as to the remainder of the Complaint.(DaSilva, Carolina)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA, et al.,
ex rel. MICHAEL BAWDUNIAK,
Plaintiffs-Relators,
v.
BIOGEN IDEC, INC.,
Defendant.

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Civil Action No. 12-cv-10601-IT

MEMORANDUM & ORDER
April 27, 2018
TALWANI, D.J.
Plaintiff-Relators Michael Bawduniak and Fernando Villegas’s Third Amended
Complaint (“Complaint”) [#132] charged Defendant Biogen Idec, Inc. (“Biogen”) with causing
health care providers to file fraudulent Medicare and Medicaid reimbursement claims in
violation of the False Claims Act, 31 U.S.C. § 3729, et seq., and various state laws, by paying
kickbacks to influence them to prescribe of Biogen’s multiple sclerosis (“MS”) products (the qui
tam claims), and with retaliating against Villegas in violation of 31 U.S.C. § 3730(h). The court
allowed in part Defendant’s Motion to Dismiss [#137] for lack of subject matter jurisdiction,
dismissing Villegas’s (but not Bawduniak’s) claim under 31 U.S.C. § 3730(b). Mem. & Order
[#166].1 Now before the court is Biogen’s Motion to Dismiss Relators’ Third Amended
Complaint Pursuant to Rules 8, 9(b), and 12(b)(6) [#139]. For the reasons set forth below, the

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That Memorandum and Order recounts the procedural history of this case. Id. at 1-2.

motion is ALLOWED as to Villegas’s retaliation claim and as to certain state qui tam claims, but
is otherwise DENIED.
I.

Overview of the Allegations

The court’s recitation of the facts is limited to a brief overview of Relators’ substantive
allegations, with further details provided as relevant below.
Relators allege that Biogen paid illegal kickbacks to healthcare providers by retaining
providers in sham consulting and speaking programs, in order to increase prescriptions of
Biogen’s MS drugs Avonex, Tysabri, and Tecfidera. With regard to the sham consulting
programs, Biogen held dozens of consulting meetings with hundreds of physicians, “liberally
paying consulting fees to the physicians who attended.” Compl. ¶ 9. The physicians were
selected based on their prescribing volume and ability to influence peers rather than expertise on
the topic of the consulting meeting. Id. ¶¶ 9-10. Relators allege that Biogen “retained far more
consultants than it required, and never did anything with the expensive ‘consulting product’ that
it received.” Id. ¶ 10.
With regard to the alleged sham speaking programs, Biogen trained physicians to speak
to other physicians about Biogen’s products. Id. ¶ 11. Biogen paid physicians both when they
obtained training and again when they gave presentations. Id. Biogen “constantly” trained
speakers, though most would present only twice, or less, a year, and many presented only to a
single person. Id. Relators allege that like the consultants, speakers were selected based on
prescribing ability, not speaking ability. According to the Complaint, “[g]iven that there was no
demand for additional presentations . . . and that there were many experienced speakers who

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could handle what little demand existed, the expansion of the speaking program was a complete
sham operated solely to pay physicians to remain loyal to Biogen.” Id.
In 2009 and 2010, Biogen paid $18 million to 1,500 physicians and nurses, who
collectively wrote prescriptions totaling approximately 60% of the MS market. Id. ¶ 2. Relators
allege that though Biogen’s internal Compliance Department routinely expressed concerns that
there were too many meetings, too many consultants, and too many payments, these concerns
were disregarded by Biogen’s marketing executives. Id. ¶ 13.
II.

Standard

In reviewing a motion to dismiss, the court “accept[s] as true all well-pleaded facts,
analyzing those facts in the light most hospitable to the plaintiff’s theory, and drawing all
reasonable inferences for the plaintiff.” U.S. ex. rel. Kelly v. Novartis Pharm. Corp., 827 F.3d 5,
11 (1st Cir. 2016) (quoting U.S. ex rel. Hutcheson v. Blackstone Med. Inc., 647 F.3d 377, 383
(1st Cir. 2011)).
Federal Rule of Civil Procedure 9(b) requires that “[i]n alleging fraud or mistake, a party
must state with particularity the circumstances constituting fraud or mistake,” while “[m]alice,
intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Relators
are “required to set forth with particularity the who, what, when, where, and how of the alleged
fraud.” U.S. ex rel. Ge v. Takeda Pharm. Co., Ltd., 737 F.3d 116, 123 (1st Cir. 2013) (internal
citation and quotation marks omitted); see also Lawton ex rel. U.S. v. Takeda Pharm. Co., Ltd.,
842 F.3d 125, 130 (1st Cir. 2016).
There is, however, “a difference between qui tam actions alleging that the defendant
made false claims to the government and those alleging that the defendant induced third-parties
to file false claims with the government.” U.S. ex rel. Nargol v. DePuy Orthopaedics, Inc., 865

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F.3d 29, 39 (1st Cir. 2017) (quoting Lawton, 842 F.3d at 130). In the latter, indirect type of
action, the court must “apply a more flexible standard.” Id. “[W]here the defendant allegedly
induced third parties to file false claims with the government a relator could satisfy Rule 9(b) by
providing factual or statistical evidence to strengthen the inference of fraud beyond possibility
without necessarily providing details as to each false claim.” Id. (quoting U.S. ex rel. Duxbury v.
Ortho Biotech Prods., L.P., 579 F.3d 13, 29 (1st Cir. 2009)) (internal quotation marks and
omission omitted).
III.

Pleading Anti-Kickback Statute Violations with Particularity

Defendant contends that the purported underlying violations of the Anti-Kickback Statute,
42 U.S.C. § 1320a-7b, on which Relator’s fraudulent claims reimbursement allegations are
based, have not been pled with the specificity required by Rule 9(b).
The Anti-Kickback Statute prohibits the knowing and willful offer or payment of “any
remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly,
in cash or in kind to any person to induce such person” to “purchase, lease, order, or arrange for
or recommend purchasing, leasing, or ordering any good, facility, service, or item for which
payment may be made in whole or in part under a Federal health care program.” 42 U.S.C.
§ 1320a-7b(b)(2) (emphasis added). These provisions were “intended to strengthen the capability
of the Government to detect, prosecute, and punish fraudulent activities under the [M]edicare
and [M]edicaid programs, . . . because fraud and abuse among practitioners . . . is relatively
difficult to prove and correct.’” U.S. ex rel. Greenfield v. Medco Health Solutions, Inc., 880 F.3d
89, 96 (3d Cir. 2018) (quoting H.R. Rep. No. 95-393, at 1, 27 (1977)) (quotation marks omitted).
Relator alleges throughout the Complaint that Biogen identified and paid top prescribers to
keep prescriptions at profitable levels, and did so by retaining the prescribers as consultants and

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hiring them as speakers. See, e.g., Compl. ¶ 1 (“The goal of [Biogen’s] kickback scheme
was . . . to preserve the eroding market share of Biogen’s . . . product Avonex; increase the
market share of its . . . product Tysabri, and to ensure that its new oral MS drug, Tecfidera, once
approved, would be prescribed at a high rate. Biogen knowingly identified the top prescribers
and paid them millions of dollars to keep their prescriptions at profitable levels.”); id. ¶ 8
(“Biogen expanded [its mechanisms for retaining physicians as consultants and hiring them as
speakers] so that its . . . consulting and speaking schemes were . . . conduits for the channeling of
illegal payments to . . . high prescribers.”); id. ¶ 10 (“Biogen did not pay doctors to consult
unless they were high prescribers[] . . . .[Biogen] retained far more consultants than it required,
and never did anything with the expensive ‘consulting product’ that it received.”); id. ¶ 11
(“Speakers are paid when they obtain training and paid again when they present, even if no one
attends the scheduled meeting. Biogen constantly trained speakers . . . even though most
speakers would only present twice (or less) a year and many presented only to a single person
. . . . Biogen selected all speakers based on their prescribing ability, not their speaking ability.”);
id. ¶ 53 (“Just 300 neurologists . . . write 30% of all [MS treatment] prescriptions. 1,200
prescribers write 60% of [MS treatment] prescriptions. Biogen devised a way to identify and
target the doctors who wrote 60% of prescriptions for MS . . . and thus would provide the ‘most
bang for the buck.’”); id. ¶ 73 (“None of the feedback from any of the [consulting] meetings was
ever used by Biogen. After an Executive Summary was prepared, no one expressed any interest
in the opinions of Biogen’s expensive consultants.”).
Biogen responds that its payments to physicians were exactly the kind of personal services
contracts protected by the statutory safe harbor adopted by Congress and that the Complaint fails

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to plead with specificity Defendant’s failure to comply with the safe harbor requirements. Def.’s
Mem. in Support of Mot. to Dismiss (“Def. Mem.”) 5-7 [#139].
The safe harbor provisions exempt the payment of remuneration from liability where
“[t]he aggregate services contracted for do not exceed those which are reasonably necessary to
accomplish the commercially reasonable business purpose of the service,” 42 C.F.R.
§ 1001.952(d)(7), and “[t]he aggregate compensation paid to the agent over the term of the
agreement . . . is consistent with fair market value in arms-length transactions” and does not
“take[] into account the volume or value of any referrals or business otherwise generated
between the parties for which payment may be made in whole or in part under Medicare,
Medicaid or other Federal health care programs,” id. § 1001.952(d)(5). The Complaint pleads
numerous specific allegations that, if true, are sufficient to support the conclusion that the
consulting and speaking programs that Defendant contracted for did exceed those which are
reasonably necessary to accomplish the commercially reasonable business purpose of the service.
See, e.g., Compl. ¶ 66 [#132] (alleging that “the market research generated by [the consulting]
programs had no effect on Biogen’s marketing” because “the marketing plans for the foreseeable
future had already been drafted and were not affected by the results of the consulting meeting,”
and that “[o]nly once or twice did anyone ever acknowledge that they had received reports from
the consulting meetings, much less use them”); id. ¶¶ 74-75 (alleging that Biogen’s internal
compliance department “regularly expressed reservations regarding Biogen’s physician
consultant meeting programs” and on at least one instance warned that a request for consulting
meetings was “for a very high # of . . . consultants (up to 280) + meetings (28),” and “[s]trongly
recommend[ed] that approver consider whether this need can be met w/ fewer consultants +
mtgs” (emphasis in original)).

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Defendant also argues that the Complaint fails to allege a violation of the Anti-Kickback
Statute with sufficient specificity because it fails to plead that any specific payment to an
individual physician was a quid pro quo in exchange for prescriptions, or that any physician
actually changed prescribing habits after receiving a consulting or speaker payment from Biogen.
Def. Mem. 7-8 [#140]. However, as discussed in greater detail below, a claim is false if it seeks
reimbursement for a prescription that was not provided in compliance with the Anti-Kickback
Statute, regardless of whether the claim was the result of a quid-pro-quo exchange or would have
been submitted even absent the kickback. See Greenfield, 880 F.3d at 96. Relators need not show
that a quid pro quo exchange occurred, or that the physicians would not have prescribed
Defendant’s medication but for the kickbacks. It is sufficient to show that Defendant paid
kickbacks to a physician for the purpose of inducing the physician to prescribe specific drugs,
and that the physician then prescribed those drugs, even if the physician would have prescribed
those drugs absent the kickback.
Accordingly, the Complaint sufficiently alleges that Biogen violated the Anti-Kickback
Statute.
IV.

Pleading False Claims With Particularity

Biogen argues further that the Complaint fails to plead claims rendered false by the
alleged Anti-Kickback Statute violation. The argument is raised and addressed separately as to
allegations concerning claims submitted prior to changes to the Anti-Kickback Statute enacted in
March 2010 and those concerning later claims. 2

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The 2010 amendments do not apply retroactively to claims submitted prior to March 2010. See
U.S. ex rel. Rost v. Pfizer, Inc., 736 F. Supp. 2d 367, 377-78 (D. Mass. 2010)..

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A. Pre-March 2010 Claims
Defendant contends that to the extent the Complaint is based on claims submitted prior to
the March 2010, it must be dismissed because “Relators fail to plead any specific representations
in any of these claims that were rendered false by alleged non-compliance with the [AntiKickback Statute]” and because “Relators likewise fail to plead that Biogen in any way caused a
physician to certify compliance with the antikickback statute in spite of an actual [Anti-Kickback
Statute] violation.” Def. Mem. 16 [#140] (citation omitted).
Under the implied false certification theory, however, FCA liability can arise where “the
defendant submits a claim for payment that makes specific representations about the goods or
services provided, but knowingly fails to disclose the defendant’s noncompliance with a
statutory, regulatory, or contractual requirement.” Universal Health Servs., Inc. v. U.S. ex rel.
Escobar, 136 S. Ct. 1989, 2001 (2016). This follows the rule that “half-truths – representations
that state the truth only so far as it goes, while omitting critical qualifying information – can be
actionable misrepresentations.” Id. at 2000. Even prior to this decision, the First Circuit has
concluded that a claim was false where the defendant medical device manufacturer had allegedly
paid kickbacks to induce physicians to use the device in surgery, and physicians had
subsequently submitted claims that certified compliance with the Anti-Kickback Statute. U.S. ex
rel. Hutcheson v. Blackstone Med., Inc., 647 F.3d 377, 392–93 (1st Cir. 2011). In that case, the
First Circuit found sufficient the complaint’s allegations that the “underlying transaction”
violated the Anti-Kickback statute and that “resulting claims” were ineligible for payment. Id.
Defendant argues further that the Complaint fails to allege that the Medicaid programs to
which the nine relevant claims were submitted prior to March 2010 would have considered
compliance with the Anti-Kickback Statute to be material. Def. Mem. 16 n.6 [#140]. As the First

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Circuit summarized on remand in Escobar: “[t]he materiality standard is demanding, as the False
Claims Act is not an all-purpose antifraud statute or a vehicle for punishing garden-variety
breaches of contract or regulatory violations.” U.S. ex rel. Escobar v. Universal Health Servs.,
842 F.3d 103, 110 (1st Cir. 2016) (quoting Escobar, 136 S. Ct. at 2003) (internal quotation marks
omitted). “Materiality ‘cannot be found where noncompliance is minor or insubstantial.”” Id.
(quoting Escobar, 136 S. Ct. at 2003). “‘Nor is it sufficient for a finding of materiality that the
Government would have the option to decline to pay if it knew of the defendant's
noncompliance.’” Id. (quoting Escobar, 136 S. Ct. at 2003). The First Circuit has thus concluded
that “in assessing materiality in connection with a different section of the False Claims Act, the
fundamental inquiry is ‘whether a piece of information is sufficiently important to influence the
behavior of the recipient.’” Id. (quoting U.S. ex rel. Winkelman et al. v. CVS Caremark Corp.,
827 F.3d 201, 211 (1st Cir. 2016)).
Even applying this demanding standard, the Complaint suffices to state a claim at the
pleading stage. It alleges that the United States cannot pay a claim induced through the payment
of a kickback and that, if the program administrators knew the claims at issue were the result of
the payment of kickbacks, the claims would have been denied. Compl. ¶ 230 [#132]. In the
specific context of the Anti-Kickback Statute, these allegations survive a motion to dismiss.
B. Post-March 2010 Claims
Under the March 2010 amendment, “a claim that includes items or services resulting
from a violation of [the Anti-Kickback Statute] constitutes a false or fraudulent claim for the
purposes of [the False Claims Act].” Patient Protection and Affordable Care Act, Pub. L. No.
111-148, 124 Stat. 119 § 6402(f)(1) (2010); see also U.S. ex rel. Rost v. Pfizer, Inc., 736 F.
Supp. 2d 367, 377 (D. Mass. 2010).

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Defendant contends that the amended statutory language requires Relator to plead that
claims “resulted from” an Anti-Kickback Statute violation, and that the Third Amended
Complaint fails to do so. Def. Mem. 13-14[#140]. Specifically, Defendant argues that “Relators
‘simply [have] not established the necessary links between a fraudulent scheme and a false
claim.’” Def. Mem. 12 [#140] (quoting Mason v. Medline Indus., Inc., No. 07-cv-5615, 2009
WL 1438096, at *4 (N.D. Ill. May 22, 2009)) (alteration in original). In Defendant’s view, the
“resulting from” language added by Congress in 2010 “must mean something more,” and the
Complaint must “allege facts demonstrating that the claims they identify were . . . caused by,
influenced by, or connected to the payments they identify.” Reply 8 [#150].
Defendant’s argument would require the court to find that the 2010 amendment to the
statute narrowed the claims that may be subject to FCA liability. The court finds no support for
that notion. The legislative history, as recounted by various courts, leads to the opposite
conclusion. See, e.g., Greenfield, 880 F.3d at 96; U.S. ex rel. Kester v. Novartis Pharm. Corp., 41
F. Supp. 3d 323, 332 (S.D.N.Y. 2014); U.S. ex rel. Westmoreland v. Amgen, Inc., 812 F. Supp.
2d 39, 52–53 (D. Mass. 2011).
As these courts have explained, “[t]here is no indication in either the law itself or the
legislative history that Congress intended to narrow the scope of ‘falsity’ under the FCA when it
amended the AKS to add Section 1320a–7b(g).” Kester, 41 F. Supp. 3d at 332. As the Third
Circuit noted, the 2010 amendment was “part of an overall effort . . . ‘to strengthen[]
whistleblower actions based on medical care kickbacks” and “to ensure that all claims resulting
from illegal kickbacks are considered false claims. ” Greenfield, 880 F.3d at 96.
The court in Kester explained the reason for the amendment in detail:
In enacting the [amendment], Congress legislated against the backdrop of . . .
literally hundreds of cases around the country that interpreted the word “false” in

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the FCA to include claims submitted under false pretenses of any kind—including
“false certifications” of compliance with statutes that are preconditions to
payment. Congress gave absolutely no indication that it intended to amend the
definition of the word “false” in the FCA, or to limit the FCA’s reach where
kickbacks were concerned.
The legislative history of the 2010 AKS amendment (Section 1320a–7b(g))
demonstrates that the new provision was intended to do anything but narrow
existing law. Rather, Congress corrected a single district court decision that the
sponsors of the predecessor bill feared construed the . . . “false certification”
theory of FCA liability too narrowly in the AKS context.
Kester, 41 F. Supp. 3d at 332; see also Greenfield, 880 F.3d at 96 (“[T]he Congressional Record
indicates [the amendment] was enacted to avert ‘legal challenges that sometimes defeat
legitimate enforcement efforts.’” (quoting 155 Cong. Rec. S10852 (2009))).
As the Third Circuit concluded, “the Anti-Kickback Statute and the False Claims Act
were not drafted to cabin healthcare providers’ liability for certain types of false claims or for
certain types of illegal kickbacks. Instead, Congress intended both statutes to reach a broad swath
of ‘fraud and abuse’ in the federal healthcare system.” Greenfield, 880 F.3d at 96. In light of that
context, Greenfield held that “if a medical service provider pays kickbacks to a doctor to induce
referrals and then submits claims to Medicare for services it provided to patients who were
referred by that doctor, the claims are false” because the care was not provided in compliance
with the Anti-Kickback Statute. Id. (citation omitted). Moreover, “[t]his outcome is the same
regardless of whether the doctor would have referred the patients absent the kickbacks . . . and
regardless of whether the patients would have chosen the service provider absent the referral.”
Id. (omission in original) (citation omitted).
Here, Relators have alleged that Defendant paid kickbacks to physicians identified in the
Complaint to induce those physicians to prescribe particular medications, and that the physicians
then prescribed those medications, causing claims to be submitted to Medicare and Medicaid.

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Applying Greenfield’s reasoning, the Complaint sufficiently alleges that the claims therefore
“resulted from” the kickbacks.
V.

Pleading Knowledge

The FCA imposes liability only where a defendant “knowingly . . . causes to be presented a
false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a)(1)(A). To establish
scienter, a complaint must allege that the defendant either “ha[d] actual knowledge” of the
claim’s falsity, or acted with “deliberate ignorance” or “reckless disregard” to the falsity of the
claim. Id. § 3729(b)(1). Defendant contends that “[t]he only specific allegation of scienter in the
[Complaint] is that ‘Biogen knew its kickback scheme would cause Medicare and Medicaid to
pay for unnecessary, excessive, abusive, and tainted claims for Avonex, Tysabri and Tecfidera,’”
and argues that “Relators plead no facts to support this wholly conclusory assertion.” Def. Mem.
17 [#140].
As already noted, the Complaint alleges that Defendant’s Compliance Department
repeatedly expressed concern over Defendant’s speaking and consulting programs, and that those
concerns were communicated but ignored. See Compl. ¶¶ 74-79 [#132]. Those allegations are
sufficient at this stage to establish that Defendant had either actual knowledge, deliberate
ignorance, or reckless disregard that they were violating the Anti-Kickback Statute and thereby
causing physicians to present false claims.
VI.

State False Claims Acts

Defendant contends that the Complaint’s allegations of violations of state false claims acts
are subject to dismissal for the same reasons as Relators’ federal claims. Def. Mem. 18 [#140].
Because the federal claims are not subject to dismissal at this stage of the proceedings for the
reasons described above, this argument similarly fails.

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Defendant also raises the alternative argument that, though the Complaint includes state
Medicaid and/or Medicare claims for eleven states, 3 the Complaint “fails to allege any facts
connecting Biogen’s purported conduct to [the other] 17 of the States on whose behalf Relators
seek to assert claims, and thus fails to plausibly allege violations of those States’ false claims
acts.” Def. Mem. 18 and n.8 [#140]. Relators respond that the Complaint “includes
representative Medicaid claims data for five states”—California, Georgia, Massachusetts, North
Carolina, and Texas—and that the Complaint “provides many examples of speaker programs and
consultant meetings that were held in various states.” Opp’n 20 [#144]. Relators, however, cite
no authority stating that holding a speaker program or consulting meeting in a state may establish
a violation of that state’s false claims act, even where no Medicare or Medicaid claims were filed
in that state. Accordingly, the motion to dismiss is ALLOWED as to the following state counts
for which no claims have been specifically pled: Count 2 (Washington, D.C.), Count 4
(Colorado), Count 6 (Delaware), Count 7 (Florida), Count 9 (Hawaii), Count 11 (Indiana), Count
12 (Iowa), Count 13 (Louisiana), Count 14 (Maryland), Count 16 (Michigan), Count 17
(Minnesota), Count 18 (Montana), Count 19 (Nevada), Count 21 (New Mexico), Count 24
(Oklahoma), Count 25 (Rhode Island), Count 28 (Virginia), and Count 29 (Washington). 4

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Specifically, New York, Tennessee, Connecticut, Illinois, Wisconsin, New Jersey, California,
Georgia, Massachusetts, North Carolina, and Texas. See Compl. ¶¶ 178-200.

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In addition, Defendant contends the Maryland and New Mexico state claims, which are brought
in Counts 14 and 21 of the Complaint, fail for the further reason that the states have not satisfied
certain statutory conditions. Def. Mem. 18 [#140] (citing Md. Health-Gen. Code § 2-604(a)(1),
(7) (requiring dismissal of relator’s action “[i]f the State does not elect to intervene and proceed
with the action . . . before unsealing the complaint”); N.M. Stat. § 27-14-7E(2) (prohibiting
relator from pursuing qui tam action without state intervention or written determination by the
state of substantial evidence of a violation)). Relators do not contest this argument in their

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VII.

Villegas’s Retaliation Claim

Count 31 of the Complaint contains a claim by Fernando Villegas for retaliation in
violation of 31 U.S.C. § 3730(h). 31 U.S.C. § 3730(h) protects an employee who “is discharged,
demoted, suspended, threatened, harassed, or in any other manner discriminated against in the
terms and conditions of employment because of lawful acts done by the employee” in
furtherance of an action under the False Claims Act. 31 U.S.C. § 3730(h)(1). Defendant contends
that the Complaint fails to plead facts alleging the elements of a retaliatory discrimination claim.
Def. Mem. 19 [#140]. In response, Relators state that “Villegas is not pursuing his claim under
31 U.S.C. § 3730(h).” Opp’n 1 n.1. Accordingly, Count 31 is DISMISSED.
VIII.

Conclusion

For the reasons set forth above, Defendant’s Motion to Dismiss Relators Bawduniak and
Villegas’s Third Amended Complaint Pursuant to Rules 8, 9(B), and 12(B)(6) [#139] is
ALLOWED as to Counts 2, 4, 6-7, 9, 11-14, 16-19, 21, 24-25, 28-29, and 31, and DENIED as to
the remainder of the Complaint.
IT IS SO ORDERED.
Date: April 27, 2018

/s/ Indira Talwani
.
United States District Judge

Opposition [#144], and conceded at the motion hearing that the Maryland and New Mexico
claims are subject to dismissal.

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