# Clements

> District Court, W.D. Missouri · January 20, 2026

URL: https://www.frixlaw.com/law-library/cases/11243621

## Case

- **Full name:** Shannon Clements, Skye Clements, Alyssia Patterson, Iberia Parish School Board and The City of Laurel, Mississippi, individually and on behalf of all others similarly situated v. CVS Health Corporation, et al.
- **Court:** District Court, W.D. Missouri
- **Decided:** January 20, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11243621

## How later opinions describe it (automated extraction)

- finding that a year and a month between alleged coconspirator conduct did not support a determination that it was parallel

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

SHANNON CLEMENTS,1 )
SKYE CLEMENTS, ALYSSIA PATTERSON, )
IBERIA PARISH SCHOOL BOARD and )
THE CITY OF LAUREL, MISSISSIPPI, )
individually and on behalf of all others )
similarly situated, )
) No. 25-00126-CV-W-BP
Plaintiffs, )
v. )
)
CVS HEALTH CORPORATION, et al., )
)
Defendant. )

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

This case is a class action brought against several entities involved in the pharmaceutical
industry, in which Plaintiffs assert the activities of pharmacy benefit managers (“PBMs”) violate
federal antitrust law. All Defendants have now moved for the dismissal of the case because
Plaintiffs lack Article III standing and fail to state a claim under Federal Rule of Civil Procedure
12(b)(6). For the reasons set forth below, this Motion, (Doc. 100), is GRANTED.2
I. BACKGROUND
A. The Pharmaceutical Industry
The issues in this case require a brief discussion of the various entities in the
pharmaceutical manufacturing, distribution, and sales chain. The chain begins with manufacturers,
who manufacture the drugs and set the wholesale price for each drug. PBMs represent third-party

1 Plaintiffs Shannon Clements and Alysia Patterson were voluntarily dismissed from this action.

2 All page numbers for documents filed with the Court are those generated by the CM/ECF system and may not
correspond to the original pagination.
payors, such as insurance companies, labor unions, employer coalitions, and government entities,
which provide health coverage to their clients and employees. PBMs also represent and manage
pharmacies. In these roles, PBMs work on behalf of their clients to (1) serve as intermediaries
between the manufacturers, wholesalers, and pharmacies and (2) administer benefit management
services. (E.g., Doc. 87, ¶¶ 143-44.) They perform a variety of services, including, as relevant
here, developing drug formularies for the third-party payors and creating and managing pharmacy
networks. (E.g., Doc. 87, ¶¶ 143-45.)
Formularies are tables of the drugs third-party payors cover as part of their benefit plans;
the formularies also set the amount customers pay for each drug. (Doc. 87, ¶¶ 212-15.) In

conjunction with establishing formularies, the PBMs also negotiate rebates for their clients (the
third-party payors) to be paid by the manufacturers. (E.g., Doc. 87, ¶ 230.) Rebates are calculated
as a percentage of a drug’s price, (e.g., Doc. 87, ¶¶ 230-31), and the PBMs are paid a percentage
of the rebates. (E.g., Doc. 87, ¶ 236, 238.) In summary, then, a PBM negotiates a rebate from the
manufacturer (from which the PBM receives a percentage), the drug is placed on the formulary,
and because of the rebate the third-party payor pays less for the drug. Plaintiffs allege these facts
result in higher prices to consumers because (1) manufacturers are incentivized to pay rebates to
ensure their drugs are placed on formularies under favorable terms, (2) PBMs establish the
formularies, not the third-party payors, and (3) because they receive a percentage of the rebate,

PBMs are incentivized to generate higher rebates by giving more favorable treatment to expensive
drugs even when cheaper drugs are available. (E.g., Doc. 87, ¶¶ 221, 224-45, 227-31, 235-38,
253-57.) Moreover, because of the rebate, manufacturers must increase the wholesale price for
their drugs to generate profit, which increases prices beyond what they would be if there was no
rebate. (E.g., Doc. 87, ¶¶ 239, 243, 245.) Because of their many roles in the manufacturing,
distribution, and sales chain, Plaintiffs allege PBMs are “the centerpiece of complex
pharmaceutical distribution and pharmaceutical benefits administration operations,” exerting
direct and indirect control over access and customer pricing of drugs. (Doc. 87, ¶ 143.)
B. Defendants
Defendants are alleged to operate in three groups: (1) CVS Health and Caremark (the “CVS
Defendants”), (2) UnitedHealth Group and OptumRX (the “UHG Defendants”), and (3) Express
Scripts (the “Express Scripts Defendants”). These groups each involve entities doing business on
multiple levels of the pharmaceutical sales chain, including as PBMs and pharmacies. Plaintiffs
allege facts supporting each Defendant’s affiliation with one of the Defendant groups, including

the ownership structure and the role each Defendant plays in the pharmaceutical sales industry.
Within each Defendant group, Plaintiffs also allege that the purportedly separate entities operate
as a single enterprise, consolidating power vertically along the pharmaceutical distribution and
payment chain, where the holding company at the top is directly involved in management and
strategy for all subsidiaries it owns. (Doc. 87, ¶¶ 22-26, 62-68, 109-15.)
The CVS Defendants are:
• CVS Health Corporation,
• CVS Pharmacy, Inc. (“CVS Pharmacy”),
• Caremark RX, L.L.C. (“Caremark RX”),
• Caremark, L.L.C (“Caremark”),
• CaremarkPCS Health, L.L.C (“CaremarkPCS”),
• CVS Specialty Pharmacy,
• Zinc Health Ventures, LLC (“Zinc Ventures”), and
• Zinc Health Services LLC (“Zinc Services”).

The CVS PBMs are CaremarkPCS, Caremark RX, Caremark, Zinc Ventures, and Zinc Services.
They also operate pharmacies through CVS Pharmacy, Caremark RX, Caremark, and CVS
Specialty Pharmacy. The CVS Defendants also own an insurance company called Aetna, Inc.,
who is not a defendant. Each of the CVS Defendants are ultimately owned by CVS Health
Corporation.
The UHG Defendants are:
• UnitedHealth Group, Inc. (“UnitedHealth”),
• Optum, Inc. (“Optum”),
• OptumRX, Inc. (“OptumRX”),
• OptumRX Holdings, LLC (“OptumRX Holdings”), and
• Emisar Pharma Services, LLC (“Emisar”).

The UHG PBMs are OptumRX Holdings and OptumRX. They also operate a pharmacy through
OptumRX. The UHG Defendants also own UnitedHealthcare, which is an insurance company but
is not a defendant. Each of the UHG Defendants are ultimately owned by UnitedHealth.
The Express Scripts Defendants are:
• Evernorth Health, Inc. (“Evernorth”, formerly known as Express Scripts Holdings),
• Express Scripts Pharmacy, Inc (“Express Scripts Pharmacy”),
• Ascent Health Services, LLC (“Ascent”),
• Express Scripts, Inc. (“Express Scripts”),
• Accredo Health Group, Inc. (“Accredo”),
• Express Scripts Administrators, LLC (“Express Scripts Administrators”),
• ESI Mail Pharmacy Service, Inc. (“ESI”), and
• Medco Health Solutions, Inc. (“Medco”).

The Express Scripts PBMs are Express Scripts, Express Scripts Administrators, and Medco. They
also operate pharmacies through Express Scripts Pharmacy, Accredo, ESI, and Medco. Each of
the Express Scripts Defendants are directly or indirectly owned by Evernorth, which is owned by
the insurance company Cigna Group; Cigna Group is not a party in this case.
C. Plaintiffs
There are three remaining named Plaintiffs in this case: an individual consumer, Skye
Clements, and two third-party payors, Iberia Parish School Board and the City of Laurel,
Mississippi.
Skye Clements is consumer of the drug Tirosint, which she purchased through Missouri
branches of CVS Pharmacy between 2022 and 2024. (Doc. 87, ¶ 14.) Tirosint is the brand-name
version of levothyroxine, which treats hypothyroidism and thyroid cancer; it is more expensive
than other versions of levothyroxine.3 (Doc. 87, ¶ 348.) Clements allegedly paid a higher price
for her Tirosint prescription than she would have without the interference of Defendants’ alleged
schemes. (Doc. 87, ¶ 14.)
Iberia Parish School Board (“IPSB”) is a school board in Louisiana; it is a plan sponsor,
providing “insurance benefits, including pharmacy benefits, to its employees and their
dependents.” (Doc. 87, ¶ 16.) IPSB contracts with Blue Cross and Blue Shield of Louisiana

(“BCBSLA”) which is represented by Express Scripts as its PBM. (Doc. 87, ¶ 16.) Plaintiffs
allege that BCBSLA is a de facto intermediary, as Express Scripts is the entity actually setting
benefits for IPSB and BCBSLA has little control over benefits management. (Doc. 87, ¶ 17.)
The City of Laurel, Mississippi (“the City of Laurel”) is a municipality in Mississippi,
which operates as a plan sponsor, providing “insurance benefits, including pharmacy benefits, to
its employees and their dependents.” (Doc. 87, ¶ 19.) The City of Laurel contracts with Blue Cross
and Blue Shield of Mississippi (“BCBSMS”) which is represented by Prime Therapeutics as its
PBM. (Doc. 87, ¶ 19.) Prime Therapeutics is not a part of any of the three defendant groups.
Plaintiffs allege that BCBSMS is a de facto intermediary, as Prime Therapeutics is the rebate

processor for BCBSMS and it has entered into an agreement with Express Scripts to steer its
patients to pharmacies affiliated with Express Scripts. (Doc. 87, ¶¶ 19-21.)

3 For example, thirty 50mcg capsules of Tirosint cost $175, while thirty 50mcg capsules of Euthyrox, a different brand
of the same drug, cost $18. Thirty 50mcg capsules of the generic levothyroxine can retail for as low as $4. (Doc. 87,
¶ 348.)
D. Count I
In Count I, the individual Plaintiff and the third-party payor Plaintiffs, on behalf of
nationwide classes, allege Defendants violated § 1 of the Sherman Act (15 U.S.C. § 1) by
conspiring to engage in two different schemes: a “rebate scheme” and a “steering scheme.” Under
the rebate scheme, each of the Defendants allegedly conspired to increase and retain rebate fees
via the use of rebate aggregators, which perform the PBMs’ function of negotiating and contracting
with manufacturers to set the rebates manufacturers must pay. (E.g., Doc. 87, ¶¶ 246-47.)
Plaintiffs allege that the use of rebate aggregators allows Defendants to control more rebate
negotiations, giving them more control over the market and allowing them to drive out competitors

and raise their own profits. (Doc. 87, ¶¶ 143, 149-57.) Plaintiffs further allege that the rebate
scheme to drive up its own profits only works because, together, the three Defendant groups
control almost 80% of the pharmaceutical transactions in the United States. (Doc. 87, ¶¶ 148,
156.) Because Defendants collectively control such a high percentage of the market, if
manufacturers refuse to work with Defendants’ rebate aggregators, their drugs cannot be profitable
because very few consumers will be willing to purchase drugs which are not on their insurance
company’s formularies. (Doc. 87, ¶¶ 150, 228-30, 273.) In this way, Defendants are alleged to
have created a bottleneck in the market, which allows them to drive up drug prices to drive up their
own profits and deny market access to those manufacturers who do not agree to participate in the

formulary-rebate scheme. (Doc. 87, ¶¶ 152, 154, 155.) This scheme is also designed to ensure
that other PBMs without such a high market share will struggle to compete. (See Doc. 87, ¶ 155.)
Ultimately, Plaintiffs assert that without PBM intervention, drug prices would be significantly
lower.
The steering scheme involves Defendants’ alleged efforts to steer customers to pharmacies
affiliated with Defendants. Through vertical integration along the chain of distribution,
Defendants have acquired and operate specialty, mail order, and brick-and-mortar pharmacies.
(Doc. 87, ¶¶ 29-33, 36-42, 55-56, 89-92, 97-100, 123-26, 300.) Defendants allegedly use their
positions with respect to the formularies and other parts of the distribution chain to implement a
variety of practices to “steer” or encourage consumers to those affiliated pharmacies, including:
• Preventing patients from receiving 90-day prescriptions at unaffiliated pharmacies,
• Covering specialty medications only if they are prescribed by an affiliated pharmacy,

• Requiring that patients pay higher co-pays at competing/unaffiliated pharmacies,
• Using information obtained from consumers to target them with personalized
advertisements to encourage them to patronize affiliated pharmacies.
(Doc. 87, ¶¶ 307-12.) Once customers have been steered, they allegedly pay more at affiliated
pharmacies than they otherwise would have because of a variety of markup practices. (Doc. 87,
¶¶ 318-23, 333.)
E. Count II
In Count II, the third-party payor Plaintiffs (IPSB and the City of Laurel) assert a claim on
behalf of a nationwide class under § 2(c) of the Robinson-Patman Act (15 U.S.C. § 13(c)), which

prohibits any payment or acceptance of a payment or discount not in repayment for goods or
services. More specifically, Count II advances a commercial bribery theory, alleging that
Defendants impose and receive extraordinarily high rebates in exchange for more favorable
placement on formularies, which effectively constitutes the imposition of fees in exchange for
access to a market they control. As explained above, by setting drug formularies, PBMs control
which drugs are covered by insurance (and to what degree they are covered) and therefore control
which prescription drugs are available to consumers. Plaintiffs allege the rebates are functionally
equivalent to bribes or kickbacks that are paid by manufacturers to induce Defendants to add
specific drugs to the formulary. (E.g., Doc. 87, ¶¶ 5, 207, 295, 445-49.)
II. ANALYSIS
Defendants have filed a Motion to Dismiss in which they argue Plaintiffs (1) lack standing
and (2) have failed to state a claim for which relief can be granted. Plaintiffs oppose dismissal,
and the Court resolves the parties’ arguments below. In so doing, the Court may refer to additional
allegations from the Amended Complaint.

A. Standing
Rule 12(b)(1) of the Federal Rules of Civil Procedure governs motions to dismiss for lack
of subject matter jurisdiction. “A court deciding a motion under Rule 12(b)(1) must distinguish
between a ‘facial attack’ and a ‘factual attack’ on jurisdiction.” Carlsen v. GameStop, Inc., 833
F.3d 903, 908 (8th Cir. 2016) (quotation omitted). Defendants raise a facial challenge to Plaintiffs’
standing because their arguments are based solely on the Amended Complaint’s allegations and
do not rely on material outside the pleadings.
Article III of the Constitution requires that plaintiffs have standing to assert their claims,
e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing must be established

separately for each plaintiff, for each claim, and for each form of relief requested. E.g., Town of
Chester v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017). “[T]he irreducible constitutional
minimum of standing consists of three elements. The plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)
(quotation omitted). An injury in fact must be an actual or imminent, concrete, and particularized
invasion of a legally protected interest. E.g., id. 339; Lujan, 504 U.S. at 560. Further, each named
plaintiff in a class action case must allege “they personally have been injured, not that injury has
been suffered by other, unidentified members of the class to which they belong and which they
purport to represent.” Warth v. Seldin, 422 U.S. 490, 502 (1975). Defendants challenge whether
standing has been properly pleaded for each individual Plaintiff. In addition, they argue that
Plaintiffs do not have to standing to assert claims with respect to any drug they themselves did not
purchase from one of the Defendants.
1. Plaintiffs’ Standing with Respect to Drugs They Paid For

Defendants claim that “Plaintiffs fail to plead that they actually did pay more in out-of-
pocket costs—or pay anything at all—in connection with their drug purchases[,]” (Doc. 101, p. 23
(emphasis removed)); however, this is incorrect. The Amended Complaint explains that each
Plaintiff paid for particular drugs, (Doc. 87, ¶¶ 14, 16-21), and explicitly alleges “Plaintiffs . . .
have sustained injury to their businesses or property by having paid higher prices for prescription
drugs than they would have paid in absence of Defendants’ illegal conduct[.]” (Doc. 87, ¶ 378;
see also Doc. 87, ¶¶ 438-39, 441, 457-58.) Defendants do not argue these allegations are somehow
inadequate; they argue they are not present when they clearly are. Therefore, Defendants have not
validly challenged Plaintiffs’ allegations that they suffered an injury.4

Defendants further argue that if Plaintiffs were injured, their allegations establish that the
injuries are not traceable to Defendants’ actions because the price increases were imposed by the
manufacturers—that is, by third parties. The traceability requirement is satisfied if there is a causal

4 Defendants delve into whether consumers who have fixed copays can suffer an injury in fact, (e.g., Doc. 101, p. 24),
but Plaintiffs do not allege that they paid fixed copays.
connection between the injury and the defendant’s conduct. E.g., Bennett v. Spear, 520 U.S. 154,
162 (1997); Arc of Iowa v. Reynolds, 94 F.4th 707, 711 (8th Cir. 2024). A factual connection, not
a legal connection, is required, e.g., Department of Commerce v. New York, 588 U.S. 752, 768
(2019); Bennett, 520 U.S. at 168-69, but the connection must not be too speculative or attenuated.
E.g., Food & Drug Admin. v. Alliance for Hippocratic Med., 602 U.S. 367, 383, 390-91 (2024).
And significantly for this case, “[a]n injury may be ‘fairly traceable’ to a defendant for causation
purposes even when that defendant’s actions are not ‘the very last step in the chain of causation.’”
Wieland v. U.S. Dep’t of Health & Hum. Servs., 793 F.3d 949, 954 (8th Cir. 2015) (quoting Bennett,
520 U.S. at 168-69). While the injury cannot be the “result of the independent action of some third

party not before the court,” Lujan, 504 U.S. at 560, it is sufficient if the action causing injury was
produced by the defendants’ “coercive effect upon the action of someone else.” Bennett, 520 U.S.
at 169. Here, the Amended Complaint acknowledges the wholesale prices of drugs are set by the
manufacturer, not Defendants. However, Plaintiffs allege that increases in those wholesale prices
occurred in response to the formulary-rebate scheme imposed by Defendants. The Amended
Complaint alleges that Defendants effectively control access to markets and demand unreasonably
high and ever-increasing rebates in exchange for including the manufacturers’ drugs on the
formulary tables, and the manufacturers have little choice but to pay the rebates and raise prices to
ensure they continue to receive a profit. Although Defendants may not be the last step in the causal

chain, the Amended Complaint sufficiently alleges Plaintiffs damages were caused by Defendants’
scheme.
2. Plaintiffs’ Standing with Respect to Drugs Purchased By Putative Class Members
Defendants also contend Plaintiffs lack standing to challenge the full scope of the alleged
scheme because they purchased only certain drugs. The Court is not convinced this is properly
considered an issue related to standing; some courts conclude that, “[r]ather than a standing issue,
the distinction between product types may instead create an issue for the typicality of Plaintiffs’
claims or the adequacy of their representation, which is better resolved at class certification.”
Barclay v. ICON Health & Fitness, Inc., 2020 WL 6083704, at *6 (D. Minn. Oct. 15, 2020). Even
the Supreme Court has acknowledged there is “tension” between its cases as to whether this
argument involves (1) a challenge to Article III standing or (2) issues related to class certification.
Gratz v. Bollinger, 539 U.S. 244, 263 n.15 (2003). But, even if the issue relates to standing,
dismissal (or, more precisely, partial dismissal) is not warranted.
Ordinarily a plaintiff establishes standing by tracing his injury to a particular product. But

here, Plaintiffs challenge an alleged scheme involving a conspiracy to restrain trade, and many
courts hold that standing can be extended to challenge the entirety of a scheme if there is sufficient
similarity between the plaintiff’s experience and the experiences of others affected by the same
scheme, even if their experiences involve different products. See, e.g., Goldman v. Tapestry, Inc.,
501 F. Supp. 3d 662, 667 (E.D. Mo. 2020); Barclay, 2020 WL 6083704, at *6; In re Visio, Inc.,
Consumer Privacy Litig., 238 F. Supp. 3d 1204, 1218 (C.D. Cal. 2017); Davidson v. Kimberly-
Clark Corp., 2014 WL 3919857, at *6 (N.D. Cal. Aug. 8, 2014); Quinn v. Walgreen Co., 958 F.
Supp. 2d 533, 551 (S.D.N.Y. 2013). Whether a plaintiff’s claims are “substantially similar” is
based on “whether the plaintiff’s averred injury is substantially similar to the claims of those she

seeks to represent.” In re Vizio, 238 F.Supp.3d at 1218. As the Second Circuit has explained, a
plaintiff has standing to assert claims on behalf of absent class members “if they plausibly allege[
] ‘(1) that they personally have suffered some actual injury as a result of the purportedly illegal
conduct of the defendant, and (2) that such conduct implicates the same set of concerns as the
conduct alleged to have caused injury to other members of the putative class by the same
defendants.’” Collins v. Northeast Grocery, Inc., 149 F.4th 163, 174 (2d Cir. 2025) (quoting
NECA-IBEW Health & Welfare Fund v. Goldman Sachs & Co., 693 F.3d 145, 162 (2d Cir. 2012)
(cleaned up). Under these cases, Plaintiffs have standing because they allege Defendants conspired
to employ a scheme that violates the antitrust laws, in which case their injuries—as well as the
injuries of the absent class members—all derive from the same illegal scheme.
This conclusion is consistent with decisions from the Supreme Court. For instance, in
Gratz v. Bollinger, a university’s admission policies were subjected to a constitutional challenge.
One of the plaintiffs sought admission as a transfer student, and the Court discussed whether he
had standing to represent a class that included those seeking admission as freshmen. 539 U.S. 244,

263-65 (2003). After “question[ing] whether the relevance of this variation, if any, is a matter
of Article III standing at all or whether it goes to the propriety of class certification,” id. at 263,
the Court held that plaintiff would have standing because the same admission policy was used for
both freshmen and transfer students, and the claims involving transfer admissions did “not
implicate a significantly different set of concerns” than freshman admissions. Id. at 265 (emphasis
supplied). In reaching this conclusion, the Court in Gratz contrasted its decision in Blum v.
Yaretsky, 457 U.S. 992 (1982), which it characterized as holding that a plaintiff who was
transferred to a lower level of medical care could not represent a class that included patients who
had been transferred to higher levels of care. It explained the different outcome in Blum was based

on its “f[inding] that transfers to lower levels of care involved a number of fundamentally different
concerns than did transfers to higher ones.” Id. at 64 (citing Blum, 457 U.S. at 1001).
This case is closer to Gratz than to Blum. Plaintiffs allege they were injured by Defendants’
scheme to inflate the prices of drug. The scheme did not target specific drugs or patients but
affected all individuals who purchased drugs. The scheme also did not operate in a significantly
different manner for different drugs. The fact that the scheme affected Plaintiffs through the
inflated prices of specific drugs does not deprive them of standing to challenge the scheme as a
whole, and the only difference between Plaintiffs and the other class members is the degree of
injury based on the price of the specific drug and the amount purchased. Thus, the Court concludes
the claims of the named Plaintiffs and the class are substantially similar, and Plaintiffs have
standing to represent a class consisting of all persons allegedly injured by Defendants’ scheme.
B. The Legal Viability of Plaintiffs’ Claims
Under Rule 12(b)(6), the Court “must accept as true all of the complaint’s factual
allegations and view them in the light most favorable to the Plaintiff[ ].” Stodghill v. Wellston

School Dist., 512 F.3d 472, 476 (8th Cir. 2008).
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.... The
plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations and citations omitted). A claim is facially
plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged.
E.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Horras v. American Capital Strategies,
Ltd., 729 F.3d 798, 801 (8th Cir. 2013). However, “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
1. Count I – 15 U.S.C. § 1 (Sherman Act)
Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. Whether a defendant
has engaged in a conspiracy is based on the “‘basic distinction . . . between concerted and
independent action’ that distinguishes § 1 of the Sherman Act from § 2.” American Needle, Inc. v.
National Football League, 560 U.S. 183, 190 (2010) (quoting Copperweld Corp. v. Independent
Tube Corp., 467 U.S. 752, 767 (1964) (internal citations omitted)). “[T]o satisfy the concerted
action requirement, the plaintiff must demonstrate that the defendants shared a ‘unity of purpose
or a common design and understanding, or a meeting of the minds’ to engage in the conduct

prohibited by the Sherman Act.” Impro Prods., Inc. v. Herrick, 715 F.2d 1267, 1273 (8th Cir. 1983)
(quoting American Tobacco Co. v. United States, 328 U.S. 781, 810 (1946)); see also Insulate SB,
Inc. v. Advanced Finishing Sys., Inc., 797 F.3d 538, 543-44 (8th Cir. 2015). While direct evidence
can support a § 1 claim, such evidence is rare and is not mandatory. Craftsmen Limousine, Inc. v.
Ford Motor Co., 363 F.3d 761, 771 (8th Cir. 2004). “Because defendants typically cannot be relied
on to confess that they have entered into an unlawful agreement, conspiracy cases usually must be
proved by circumstantial evidence.” Id. (citing ES Development, Inc. v. RWM Enterprises, Inc.,
939 F.2d 547, 553 (8th Cir. 1991)).
Plaintiffs argue that the parallel conduct of the Defendants and circumstances surrounding

their conduct is circumstantial evidence supporting the existence of a conspiracy. More
specifically, Plaintiffs claim Defendants conspired to (1) create rebates in a manner that artificially
raise prices and thereby increases rebate fees paid to Defendants at consumers’ expense and (2)
use patient steering practices to push consumers to affiliated pharmacies and further enhance
Defendants’ power to raise prices. Defendants’ alleged conduct in these schemes, however, is not
sufficiently parallel to support a circumstantial claim for a conspiracy.
“[P]arallel conduct among defendants should be viewed with a broad lens[,]”Mosaic
Health, Inc. v. Sanofi-Aventis U.S., LLC, 156 F.4th 68, 81-82 (2d Cir. 2025), but conduct which is
equally “consistent with permissible activity as with illegal conspiracy” is not enough to support
a claim for a Sherman Act violation. Blomkest Fertilizer, Inc. v. Potash Corp. of Saskatchewan,
203 F.3d 1028, 1032 (8th Cir. 2000) (quoting Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 588 (1986)). Instead, the allegations must “tend[ ] to exclude the possibility
that the alleged conspirators acted independently.” Matsushita, 475 U.S. at 588; see also Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 552 (2007). “Pleading only parallel conduct or other conduct
merely consistent with an agreement is not sufficient to show a conspiracy.” Insulate SB, 797 F.3d
at 544 (cleaned up; quotation omitted). As the Supreme Court explained:
[A]n allegation of parallel conduct and a bare assertion of conspiracy will not
suffice. Without more, parallel conduct does not suggest conspiracy, and a
conclusory allegation of agreement at some unidentified point does not supply facts
adequate to show illegality. Hence, when allegations of parallel conduct are set out
in order to make a § 1 claim, they must be placed in a context that raises a
suggestion of a preceding agreement, not merely parallel conduct that could just as
well be independent action.

Bell Atl., 550 U.S. at 556–57. “[S]omething more than merely parallel behavior” must be alleged.
Id. at 560.
Here, Plaintiffs have not alleged parallel conduct. One factor in determining whether
Defendants acted parallel is the timeframe of each Defendants’ action. For example, in Park Irmat
Drug Corp. v. Express Scripts Holding Co., the Eighth Circuit considered allegations that CVS
and Express Scripts violated the Sherman Act by conspiring with PBM-owned pharmacies to
boycott other pharmacies and concluded that six months between actions of alleged co-
conspirators was insufficient to suggest parallel activity. 911 F.3d 505, 516-17 (8th Cir. 2018).
The court explained that it was “not hold[ing] that actions taken within six months of each other
can never constitute parallel conduct, but only that the terminations [t]here, executed under
dissimilar circumstances and separated by six months, did not constitute parallel conduct.” Id. at
517. Other circuits have found that more than a year between actions is too much time. See Burtch
v. Milberg Factors, Inc., 662 F.3d 212, 228 (3d Cir. 2011) (finding that a year and a month between
alleged coconspirator conduct did not support a determination that it was parallel).
Despite Plaintiffs’ argument that Defendants acted at the same time, the Amended
Complaint alleges that the conduct occurred at different times over the course of years. For

instance, with respect to the rebate scheme, Plaintiffs allege that rebate aggregators are central to
the scheme but admit that the Defendants created rebate aggregators over the course of three years,
with the Express Scripts Defendants creating Ascent in 2019; CVS Defendants creating Zinc in
2020; and the UHG Defendants creating Emisar in 2021. (Doc. 87, ¶¶ 54, 94, 131.) Similarly,
Defendants allegedly began their exclusionary formulary practices over a period of years, with
CVS Defendants starting in 2012, Express Scripts Defendants in 2014, and UHG Defendants in
2016. (Doc. 87, ¶ 217.) Because these actions were years apart, they cannot be considered parallel
conduct.
The Court comes to the same conclusion with respect to the steering scheme. Plaintiffs

allege Defendants employed similar tactics over a similar time period to encourage customers to
choose Defendant’s pharmacies over others, especially for high-cost or “specialty” medication.
However, the Amended Complaint fails to allege Defendants engaged in parallel conduct with
respect to this alleged scheme. For example, Plaintiffs rely on communications each Defendant
sent its patients to steer patients to a particular pharmacy, but the communications differ
substantially. (Doc. 87, ¶¶ 309-312.) The Express Scripts communications notified consumers
about higher copays at competing pharmacies but did not mention those higher copays resulted
from negotiations by Express Scripts’ PBMs. (Doc. 87, ¶ 309.) The CVS communications are
alleged to make false claims to consumers about coverage. (Doc. 87, ¶ 311.) The UHG
communications allegedly specified that consumers would pay a discounted price only at affiliated
pharmacies, while their drugs would no longer be covered elsewhere. (Doc. 87, ¶ 312.) Further,
these communications occurred between 2020 and 2024. Because the communications are not
similar and occurred over four years, they cannot be considered parallel conduct.
The allegations of aligned activity fail because similarities in business activities alone do

not prove conspiratorial parallel conduct and because the timing must also be parallel. Plaintiffs
argue they have alleged surrounding circumstances which they claim could serve as the
“something more,” (Doc. 127, pp. 26-33), but surrounding circumstances do not create an
inference of conspiracy unless there is also parallel conduct.5 Therefore, the fact that each of the
Defendants engaged in separate, although similar, business practices over several years is not
enough to support Plaintiffs’ antitrust claims, and the Sherman Act claim, Count I, must be
dismissed.
2. Count II – Robinson-Patman Act (15 U.S.C. § 13(c))
Defendants argue Plaintiffs do not have antitrust standing for their Robinson-Patman Act

claim (Count II), because they fail to allege an antitrust injury. Antitrust plaintiffs must establish

5 The Court makes clear that it is not holding there is “something more” that would be sufficient to create an inference
of a conspiracy if parallel conduct was alleged. To the contrary, there is significant question as to whether Plaintiffs’
allegations create an inference that Defendants entered an agreement to act together, or whether they are just as
consistent with an inference Defendants simply copied each other’s business practices and thus do not tend to exclude
the possibility Defendants acted independently. See Bell Atl., 550 U.S. at 552. However, in the absence of allegations
of parallel conduct, there is no need for the Court to consider this issue.
not only constitutional standing but also “antitrust standing,” which requires an “antitrust injury.”
Insulate SB, Inc. v. Advanced Finishing Sys., Inc., 797 F.3d 538, 542 (8th Cir. 2015). This concept
is separate from constitutional standing requirements and is an aspect of the merits of the claim
itself. E.g., Miller v. Redwood Toxicology Lab’y, Inc., 688 F.3d 928, 934 (8th Cir. 2012).6
A plaintiff suing under one of the antitrust statutes cannot merely rely on “an injury causally
linked to” a violation of the antitrust laws. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S.
477, 489 (1977). “An ‘antitrust injury’ is an ‘injury of the type the antitrust laws were intended to
prevent . . . that flows from that which makes defendants’ acts unlawful.’” Insulate SB, Inc., 797
F.3d at 542 (quoting Brunswick Corp., 429 U.S. at 489). Put another way, “[t]he injury should

reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible
by the violation. It should, in short, be the type of loss that the claimed violations would be likely
to cause.” Brunswick Corp., 429 U.S. at 489 (quotation omitted; cleaned up). While paying a
higher price for goods can qualify as an antitrust injury, e.g., Southeast Missouri Hosp. v. C.R.
Bard, Inc., 642 F.3d 608, 625 (8th Cir. 2011), the inquiry also requires consideration of the injuries
intended to be addressed by the statutory provision the plaintiff has invoked. Whether an injury
qualifies as an antitrust injury depends on the particular claim that the plaintiff brings because, as
stated earlier, an antitrust injury is one that would result from a violation of the statute at issue.
E.g., Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990); Cargill, Inc. v.

Monfort of CO, Inc., 479 U.S. 104, 110 n.5 (1986); In re Canadian Import Antitrust Litig., 470
F.3d 785, 791 (8th Cir. 2006).

6 The parties also discussed antitrust standing with respect to the Sherman Act claim in Count I, but the Court dismissed
that claim for other reasons and found it unnecessary to address antitrust standing for that claim.
Plaintiffs invoke the portion of the Robinson-Patman Act that prohibits, among other
things, accepting anything of value or allowing a discount in lieu of compensation for anything
other than services rendered in connection with the sale or purchase of goods. 15 U.S.C. § 13(c).
This prohibition is intended to “curb and prohibit all devices by which large buyers gained
discriminatory preferences over smaller ones by virtue of their greater purchasing power.” F.T.C.
v. Henry Broch & Co., 363 U.S. 166, 168 (1960).
Here, the third-party payor Plaintiffs allege they paid unfairly increased prices for drugs as
a result of Defendants’ scheme to receive rebates in exchange for placing a particular drug on the
formulary. While this is a proper injury under some antitrust laws, the Robinson-Patman Act is

different. “Unlike the Sherman Act, which protects competition, not competitors, the Robinson–
Patman Act extends its protection to competitors.” Monahan’s Marine, Inc. v. Boston Whaler, Inc.,
866 F.2d 525, 528 (1st Cir. 1989) (quotation omitted; emphasis in original); see also Larry R.
George Sales Co. v. Cool Attic Corp., 587 F.2d 266, 272 (5th Cir. 1979). It protects smaller
companies from the ill effects of discriminatory actions by large companies by protecting access
to the market or to goods for sale. Henry v. Chloride, Inc., 809 F.2d 1334, 1339 (8th Cir. 1987);
2660 Woodley Rd. Joint Venture v. ITT Sheraton Corp., 369 F.3d 732, 742 (3d Cir. 2004). But in
this case, the third-party payor Plaintiffs are acting as ultimate consumers, rather than as
Defendants’ competitors, and their alleged damages are not related to access to drugs but rather to

the incidental cost increase in the drugs resulting from Defendant’s alleged rebate scheme. In an
alleged commercial bribery scheme, “paying inflated purchasing prices to vendors, without more,
is [not] an injury of the type the antitrust laws were intended to prevent that flows from that which
makes the defendants acts unlawful” Id. at 738-39 (internal citations omitted). Accordingly, third-
party payor Plaintiffs’ alleged injury is not the type of injury the Robinson-Patman Act was
designed to address, and the third-party payor Plaintiffs do not have antitrust standing for Count
II. Count II is dismissed.
III. CONCLUSION
The Motion to Dismiss (Doc. 100), is GRANTED. Plaintiffs have Article III standing to
assert their claims. However, Count I, the Sherman Act Claim, is dismissed because Plaintiffs

failed to allege parallel activity on the part of Defendants, which is necessary to support either
scheme addressed by Count I. And Count II, the Robinson-Patman Claim, is dismissed because
Plaintiffs fail to allege they have antitrust standing.
IT IS SO ORDERED.
/s/ Beth Phillips
BETH PHILLIPS, JUDGE
Date: January 20, 2026 UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11243621. Public record. Not legal advice.