United States District Court, N.D. Illinois, Eastern Division
November 2, 2004.
NORTH JACKSON PHARMACY, INC., et al., etc., Plaintiffs,
CAREMARK RX, INC., et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
This Court inherited this action via a 28 U.S.C. § 1404(a)
transfer from the United States District Court for the Northern
District of Alabama, where it had been part of a three-case
package of putative class actions charging violations of Section
1 of the Sherman Act by a small group of pharmacy benefit
managers ("PBMs"). Promptly after the transfer the defendants in
this action (two related companies, one of which is alleged to be
a PBM involved in the claimed antitrust conspiracy) filed a
Fed.R. Civ. P. ("Rule") 12(b)(6) motion to dismiss the Second Amended
Complaint ("SAC") with prejudice. This Court just as promptly set
a briefing schedule, and plaintiffs' counsel have now timely
filed, in response to the Rule 12(b)(6) motion, the second of
what had been contemplated as a three-memorandum set.
Each side is represented by able counsel who have submitted
thoughtful memoranda advancing their respective points of view.
But plaintiffs' just-filed responsive memorandum has been
accompanied by a photocopy of the 25-page opinion issued on October 13, 2004 by the transferor judge, Honorable Virginia
Emerson Hopkins, rejecting a like Rule 12(b)(6) motion that had
sought to dispatch the selfsame Second Amended Complaint in the
two cases that were retained in the Alabama District Court.
To repeat the meticulous analysis in Judge Hopkins' thorough
opinion as a predicate for arriving at the same conclusion would
be "[t]o gild refined gold, to paint the lily . . ." (William
Shakespeare, King John act 4, sc. 2). And that, as the poet
went on to say, would be "wasteful and ridiculous excess"
(id.). There is no need for defendants' reply memorandum
instead the Rule 12(b)(6) motion is denied, and defendants are
ordered to answer the SAC on or before November 16, 2004.
Finally, a status hearing is set for 9 a.m. November 19, 2004.
At that time the parties' counsel should be prepared to discuss
issues relating to class certification and any other matters
necessary to move this action forward on a suitably expedited
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