Amicus Curiae Brief — Glen Mulready, in His Official Capacity as Insurance Commissioner of Oklahoma, et al., Petitioners v. Pharmaceutical Care Management Association

No. 23-1213

In the

Supreme Court of the United States

GLEN MULREADY, IN HIS OFFICIAL CAPACITY AS

INSURANCE COMMISSIONER OF OKLAHOMA, et al.,

Petitioners,

vs.

PHARMACEUTICAL CARE

MANAGEMENT ASSOCIATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Tenth Circuit

BRIEF OF AMICI CURIAE STATES OF

MINNESOTA, ARIZONA, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, FLORIDA, HAWAII,

ILLINOIS, INDIANA, LOUISIANA, MAINE,

MARYLAND, MASSACHUSETTS, MICHIGAN,

MISSISSIPPI, NEBRASKA, NEVADA, NEW

HAMPSHIRE, NEW JERSEY, NEW YORK, NORTH

CAROLINA, OHIO, OREGON, PENNSYLVANIA,

RHODE ISLAND, SOUTH DAKOTA, TEXAS, UTAH,

VIRGINIA, WASHINGTON, AND THE DISTRICT OF

COLUMBIA IN SUPPORT OF PETITIONERS

A ngela Behrens

Counsel of Record

Stephen Melchionne

A llen Cook Barr

Assistant Attorneys General

445 Minnesota Street, Suite 1400

St. Paul, MN 55101

(651) 757-1204

angela.behrens@ag.state.mn.us

115181

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether ERISA preempts state laws that regulate

pharmacy benefit managers (PBMs) by preventing them

from cutting off rural patients’ access, steering patients

to PBM-favored pharmacies, excluding pharmacies

willing to accept their terms from preferred networks,

and overriding State discipline of pharmacists.

2. Whether Medicare Part D preempts state laws

that limit the conditions PBMs may place on pharmacies’

participation in their preferred networks.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTERESTS OF AMICI STATES . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I.

This Case Presents Important Questions

Because Every State Has Enacted PBM

Regulations to Protect Consumers . . . . . . . . . . . 2

A. All States Have Some Form of PBM

Regulation and PBMs Continue to

Challenge Those Regulations . . . . . . . . . . . . 5

B. State PBM Regulations Are Critical to

Protect the Public from PBM Business

Practices That Adversely A ffect

Independent Pharmacies and Consumers . 7

II. This Court Should Grant Certiorari to

Clarify the Law Regarding ERISA and

Medicare Preemption as They Relate to

State PBM Regulations . . . . . . . . . . . . . . . . . . . . 12

iii

Table of Contents

Page

A. The Tenth Circuit Decision Conflicts

with Eighth Circuit Decisions and

Creates Uncertainty in States’ Ability

to Regulate PBMs . . . . . . . . . . . . . . . . . . . . 13

1.

The Tenth Circuit’s Medicarepreemption analysis conflicts with

the Eighth Circuit’s . . . . . . . . . . . . . . . . 14

2. The Tenth Ci rcuit’s ERISApreemption analysis conflicts with

the Eighth Circuit’s . . . . . . . . . . . . . . . . 15

B. The Tenth Circuit Decision Conflicts

with this Court’s ERISA-Preemption

Decision in Rutledge II . . . . . . . . . . . . . . . . 17

C. The Tenth Circuit Decision Ignores

States’ Traditional Police Powers . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iv

TABLE OF CITED AUTHORITIES

Page

FEDERAL COURT CASES

Alaska v. Express Scripts, Inc.,

2024 WL 2321210 (D. Alaska May 22, 2024) . . . . . . . 7

Cal. Div. of Lab. Standards Enf’t v. Dillingham

Constr., N.A., Inc.,

519 U.S. 316 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

De Buono v.

NYSA-ILA Med. & Clinical Servs. Fund,

520 U.S. 806 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 18, 23

Munn v. Illinois,

94 U.S. 113 (1876) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

N.Y. State Conf. of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) . . . . . . . . . . . . . . . . . . . . . 18, 22, 23

Pharm. Care Mgmt. Ass’n v. Dist. of Columbia,

613 F.3d 179 (D.C. Cir. 2010) . . . . . . . . . . . . . . . . . . . . 7

Pharm. Care Mgmt. Ass’n v. Gerhart,

852 F.3d 722 (8th Cir. 2017) . . . . . . . . . . . . . . . . . . . 6, 7

Pharm. Care Mgmt. Ass’n v. Mulready,

78 F.4th 1183 (10th Cir. 2023) . . . . . 2, 13-17, 19, 20, 23

v

Cited Authorities

Page

Pharm. Care Mgmt. Ass’n v. Rowe,

429 F.3d 294 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 7

Pharm. Care Mgmt. Ass’n v. Rutledge,

891 F.3d 1109 (8th Cir. 2018) . . . . . . . . . . . . . . 6, 13, 14

Pharm. Care Mgmt. Ass’n v. Wehbi,

18 F.4th 956 (8th Cir. 2021) . . . . . . . . . . . . . . . . 6, 13-16

Rush Prudential HMO, Inc. v. Moran,

536 U.S. 355 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Rutledge v. Pharm. Care Mgmt. Ass’n,

592 U.S. 80 (2020) . . . . . . . . . . . . . . . . 1-5, 13, 14, 16-21

STATE STATUTES, COURT RULES, AND

OTHER AUTHORITIES

Okla. Stat. tit. 36, § 6961 . . . . . . . . . . . . . . . . . . . . . . . . . 19

Okla. Stat. tit. 36, § 6962 . . . . . . . . . . . . . . . . . . . . . . . 6, 19

Okla. Stat. tit. 36, § 6963 . . . . . . . . . . . . . . . . . . . . 5, 19, 20

Minn. Stat. § 62W.07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

vi

Cited Authorities

Page

Adiel Kaplan, Kenzi Abou- Sabe, & Vicky

Nguyen, NBC News, Frustrated Pharmacists

are Opting Out of the Insurance System,

Sav in g So m e Cu st o m ers Hun dred s of

Dollars a Month (Aug. 19, 2022) . . . . . . . . . . . . . 11, 12

A.J. Fein, The Top Pharmacy Benefit Managers of

2021: The Big Get Even Bigger (Apr. 5, 2022) . . . . 4, 8

A l l i son Dabb s Ga r r et t & Rob er t Ga r i s ,

L e v e l i n g t h e Pl a y i n g F i e l d i n t h e

Pharmacy Benefit Management Industry,

42 Val. U. L. Rev. 33 (2007) . . . . . . . . . . . . . . . . . . . . . 8

Arielle Bosworth, et al., Health & Hum. Servs.

Off. of the A ss’t Sec’y for Planning &

Evaluation, Changes in the List Prices of

Prescription Drugs, 2017-2023 (Oct. 6, 2023) . . . . . 10

Bruce Japsen, Express Scripts Boosts Cigna

as Employers Stick with Larger Insurer,

Forbes Mag. (Aug. 1, 2019) . . . . . . . . . . . . . . . . . . . . . . 8

Ct rs. for Disea se Cont rol & P revent ion,

U.S. Dep’t of Health & Human Ser vs.,

Health, United States (2019) . . . . . . . . . . . . . . . . . . . . 3

El i z ab et h S e e ley & A a r on K e s s e l he i m ,

Commonwealth Fund, Pharmacy Benefit

Managers: Practices, Controversies, and

What Lies Ahead (2019) . . . . . . . . . . . . . . . . . . . . . . . . 7

vii

Cited Authorities

Page

Ed me r La z a r o, et a l ., RU PRI C t r. For

Rural Health Pol’y Analysis, Update on

Rural Independently Owned Pharmacy

Closures in the United States, 2003-2021 . . . . . . 9, 10

Fortune 500–2020, Fortune Mag. (2020) . . . . . . . . . . . . . 8

Jenny S. Guadamuz et al., Fewer Pharmacies in

Black and Hispanic/Latino Neighborhoods

Compared with White or Diverse Neighborhoods,

2007-15, 40 Health Affairs 802 (2021) . . . . . . . . . . . . 10

Hearing on HF 728 Before the H. Commerce

Com m itt ee, 2 019 Leg., 91st S ess.

(Minn. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Letter from Tim Griffin, Ark. Att’y Gen., et

al., to the Honorable Mike Johnson, et al.

(Feb. 20, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Lina M. Kahn, Chair, Fed. Trade Comm’n, Remarks

Prepared for the White House Roundtable

on PBMs (Mar. 4, 2024) . . . . . . . . . . . . . . . . . . . . . . . . 5

Lori M. Reilly, COO, Pharmaceutical Research

and Manufacturers of America, Testimony

Before the U.S. House Committee on Oversight

and Accountability (Sept. 19, 2023) . . . . . . . . . . . . . . 11

viii

Cited Authorities

Page

Minn. Dep’t of Comm., Commerce Fines CVS

C a r e m a r k $ 5 0 0 ,0 0 0 A f t e r 2 0 2 2 C a s e

Alleging Violations of Pharmacy Benefit

Manager Act (May 1, 2023) . . . . . . . . . . . . . . . . . . . . 12

Nat’l Acad. State Health Pol’y, State Pharmacy

Benefit Manager Legislation (2023) . . . . . . . . . . . 5, 6

Nat’l A ss’n of Att’ys Gen., A Bipar tisan

Coalition of 39 State Attorneys General Urge

Congressional Action on Pharmacy Benefit

Manager Reform (Feb. 21, 2024) . . . . . . . . . . . . . . . . 6

Neeraj Sood et al., USC Leonard D. Schaeffer Ctr. for

Health Pol’y & Econ., The Association Between

Drug Rebates and List Prices (Feb. 11, 2020) . . . . 11

Ohio Auditor of State, Ohio’s Medicaid Managed

Care Pharmacy Services (Aug. 16, 2018) . . . . . . . . 8, 9

Oversight Hearing of the S. Comm. on Bus.,

Professions & Econ. Dev., Pharmacy Benefit

Managers 101 (Cal. Mar. 20, 2017) . . . . . . . . . . . . . . . 4

Rena M. Conti, M.D., Statement Before the U.S.

Ho u s e C o m m i t t e e o n O ve r s i g ht a n d

Accountability (Sept. 19, 2023) . . . . . . . . . . . . . . . . . 11

Stephen Barlas, Employers and Drugstores Press

fo r PBM Tran sparen cy, 4 0 Pha r macy

& Therapeutics (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ix

Cited Authorities

Page

U.S. Dep’t of Health & Human Servs., National

Health Expenditure Fact Sheet (2022) . . . . . . . . . . . . 3

1

INTERESTS OF AMICI STATES1

The States of Minnesota, Arizona, California, Colorado,

Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana,

Louisiana, Maine, Maryland, Massachusetts, Michigan,

Mississippi, Nebraska, Nevada, New Hampshire,

New Jersey, New York, North Carolina, Ohio, Oregon,

Pennsylvania, Rhode Island, South Dakota, Texas, Utah,

Virginia, Washington, and the District of Columbia,

support the petitioners’ request for certiorari review

because states have a compelling interest in preserving

their traditional authority to protect their residents’

access to healthcare and to regulate business practices

in their states. To advance these interests, all states

regulate pharmacy benefit managers (PBMs) to some

degree. Despite this Court’s partial clarification of states’

authority to do so in Rutledge v. Pharmaceutical Care

Management Association, 592 U.S. 80 (2020), PBMs

have continued to challenge state PBM regulations on

federal-preemption grounds. The Tenth Circuit’s sweeping

approach to ERISA and Medicare preemption would

severely and unduly impede states’ abilities to protect

their residents and regulate businesses. And the circuit

split that the Tenth Circuit expressly created has caused

further uncertainty about the extent to which states may

regulate PBMs.

SUMMARY OF ARGUMENT

Over the past several decades, PBMs have steadily

entrenched themselves as middlemen in the healthcare

1. Pursuant to Rule 37.2, counsel for all parties received at least

ten days’ notice that this amicus brief would be filed.

2

system. While PBMs ostensibly control drug prices to

benefit consumers, consumers have instead borne the

brunt of PBM practices, facing increasing difficulties in

affording their lives and accessing prescription drugs.

Independent pharmacies have also struggled to stay afloat

as PBMs have implemented low reimbursement rates

and steered business away by limiting consumer choices.

Amidst these problems, PBMs have reaped significant

profits while claiming to be beyond the reach of state

regulation. And they have persisted in these claims even

after Rutledge, when this Court held that ERISA did not

preempt state laws regulating pharmacy-reimbursement

rates. Rutledge, 592 U.S.at 89-90.

While the Oklahoma regulations in this case may

seem narrow, the Tenth Circuit’s approach to ERISA and

Medicare preemption was broad. Pharm. Care Mgmt.

Ass’n v. Mulready, 78 F.4th 1183 (10th Cir. 2023). This

approach is not only at odds with this Court’s ERISA

precedent, it also conflicts with the Eighth Circuit’s

approach to federal preemption of state PBM regulations.

As states nationwide continue to regulate PBMs to protect

their residents’ access to healthcare, clarity from the

Court is needed on these important preemption issues.

ARGUMENT

The Court should grant certiorari review for two

key reasons. First, the Tenth Circuit decided important

questions of federal law in a manner that conf licts

with the Eighth Circuit’s resolution of the same issues.

Sup. Ct. R. 10(a). Second, the Tenth Circuit’s decision

conflicts with this Court’s precedent. Id. 10(c). States

have a significant interest in knowing the extent to which

3

ERISA and Medicare may preempt their regulations of

PBMs. By contradicting the Eighth Circuit’s holdings

and adopting a substantially broader view of ERISA

preemption than what this Court endorsed in Rutledge,

the Tenth Circuit’s decision throws that knowledge into

substantial doubt. The result is nationwide uncertainty for

regulators, a corresponding increase in consumer harms,

and a substantial likelihood of continued litigation on the

topic in light of the deep circuit split. The Court should

grant review to put an end to that uncertainty and its

corresponding harms.

I.

This Case Presents Important Questions Because

Every State Has Enacted PBM Regulations to

Protect Consumers.

Prescription drugs are an inescapable and increasingly

prevalent facet of modern healthcare. Between 2015

and 2018, 48.6% of people in the United States took a

prescription drug in the preceding thirty days. 2 Need for

prescription drugs is even greater among those over age

65, with 88.5% having taken a prescription drug in the last

thirty days. 3 In 2022, annual American prescription-drug

spending grew to $405.9 billion.4 Healthcare spending is

projected to continue increasing. 5

2. Ctrs. for Disease Control & Prevention, U.S. Dep’t of Health

& Human Servs., Health, United States, Table 39 (2019), https://

perma.cc/54DK-3BTG.

3. Id.

4. U.S. Dep’t of Health & Human Servs., National Health

Expenditure Fact Sheet (2022), https://perma.cc/JW74-PBKH.

5. Id.

4

PBMs “are a little-known but important part of the

process by which many Americans get their prescription

drugs.” Rutledge v. Pharm. Care Mgmt. Ass’n, 592

U.S. 80, 83 (2020). They act as intermediaries between

pharmacies and prescription-drug plans. Id. In their

simplest form, PBMs reimburse pharmacies for drugs

covered by prescription-drug plans. Id. Their role steadily

expanded over the past fifty years to control nearly every

aspect of health plans’ pharmacy benefits.6

PBMs’ central position has enabled them to foster a

complex and interdependent web of relationships within

the healthcare industry. PBMs have then used this complex

system to impose self-serving protections that have

reduced reimbursement rates to pharmacies, maximized

rebates to PBMs, and imposed various confidentiality

requirements to hide PBMs’ business practices. PBMs

have thrived behind the scenes, exploiting the lack

of transparency that they designed into the system.7

Consolidation of the PBM market in recent years has

raised a host of new concerns and challenges for market

participants and regulators. The top three PBMs control

80% of the PBM market. 8 This market consolidation, and

vertical integration, have led to PBMs being described as

“dominant gatekeepers who have outsized power to decide

6. Oversight Hearing of the S. Comm. on Bus., Professions &

Econ. Dev., Pharmacy Benefit Managers 101 2 (Cal. Mar. 20, 2017),

https://perma.cc/D4SL-PBB6.

7. Stephen Barlas, Employers and Drugstores Press for

PBM Transparency, 40 Pharmacy & Therapeutics 206-08 (2015),

https://perma.cc/G8RX-TP54.

8. A.J. Fein, The Top Pharmacy Benefit Managers of 2021: The

Big Get Even Bigger (Apr. 5, 2022). https://perma.cc/Z6DC-X9T8.

5

how people do or don’t receive the life-saving prescription

drugs they depend on.” 9 With this landscape in mind,

states across the political spectrum have stepped in to

regulate PBMs to protect the public. These regulations

have been met with significant resistance from the PBM

industry.

A.

All States Have Some Form of PBM Regulation

and PBMs Continue to Challenge Those

Regulations.

In the absence of federal regulation of PBMs, states

have stepped in to address PBMs’ concerning business

practices and outsized influence in the prescriptiondrug field. Every state has enacted some form of PBM

regulation.10 As of 2023, states had enacted at least 156

laws regulating PBMs.11 Types of regulations vary, but

typically aim to limit patient cost-sharing, prohibit gag

clauses on pharmacies, prohibit discrimination against

non-affiliated pharmacies, require certain reports, and

establish requirements for maximum allowable costs and

reimbursements. Id. For example, Oklahoma prohibits

PBMs from steering patients to favored pharmacies by

offering discounts only at those pharmacies. Okla. Stat. tit.

36, § 6963(E). It also requires PBMs to accept any willing

pharmacy into their preferred networks if the pharmacy

9. Lina M. Kahn, Chair, Fed. Trade Comm’n, Remarks

Prepared for the White House Roundtable on PBMs (Mar. 4, 2024),

https://perma.cc/M7SV-9Z4L.

10. See, e.g., Nat’l Acad. State Health Pol’y, State Pharmacy

Benefit Manager Legislation (2023) (summarizing some state laws),

https://perma.cc/U56G-TDPY.

11. Id.

6

is willing to accept the network’s terms and conditions.

Id. § 6962(B)(4). While specific approaches vary, at least

twenty-three states have some form of legislation that

prohibits PBMs from discriminating against non-affiliated

pharmacies.12

States have also urged Congress to act, with thirtynine state attorneys general seeking PBM reform.13

States and federal regulators could then “work together

to better meet their shared responsibility to hold PBMs

accountable and improve the country’s health care system

overall.”14 But without federal PBM regulation, states are

left to navigate this area by exercising their traditional

regulatory authority.

In response the PBM industry has fought state

regulation (usually acting through its trade association,

PCMA), consistently asserting that federal law—

specifically ERISA and Medicare Part D—preempt

state action. For example, before suing Oklahoma in the

underlying case, PCMA challenged PBM regulations in

North Dakota, Arkansas, Iowa, Washington D.C., and

Maine. Pharm. Care Mgmt. Ass’n v. Wehbi, 18 F.4th 956

(8th Cir. 2021); Pharm. Care Mgmt. Ass’n v. Rutledge,

891 F.3d 1109 (8th Cir. 2018), rev’d and remanded, 592

U.S. 80 (2020); Pharm. Care Mgmt. Ass’n v. Gerhart,

12. Id.

13. Nat’l Ass’n of Att’ys Gen., A Bipartisan Coalition of 39 State

Attorneys General Urge Congressional Action on Pharmacy Benefit

Manager Reform (Feb. 21, 2024), https://perma.cc/Z58R-XJ9P.

14. Letter from Tim Griffin, Ark. Att’y Gen., et al., to the

Honorable Mike Johnson, et al. (Feb. 20, 2024), https://perma.

cc/3FWX-UJNG.

7

852 F.3d 722 (8th Cir. 2017); Pharm. Care Mgmt. Ass’n v.

Dist. of Columbia, 613 F.3d 179 (D.C. Cir. 2010); Pharm.

Care Mgmt. Ass’n v. Rowe, 429 F.3d 294 (1st Cir. 2005).

And PBMs have likewise raised ERISA and Medicare

preemption as a defense when states bring enforcement

actions. See, e.g., Alaska v. Express Scripts, Inc., No.

3:23-cv-00233, 2024 WL 2321210, at *9-11 (D. Alaska

May 22, 2024).

Due to the prevalence of state regulation of PBMs,

and the resulting lawsuits, whether ERISA or Medicare

Part D preempts certain PBM regulations, and the extent

of that preemption, are important questions.

B. State PBM Regulations Are Critical to Protect

the Public from PBM Business Practices That

Adversely Affect Independent Pharmacies and

Consumers.

The questions presented in this matter are not only

important because of the prevalence of PBM regulations

and related litigation. They are also critical for states

to protect the public from harmful business practices.

Local and independent pharmacies and end consumers

are particularly vulnerable to the harms of the system

that PBMs have fostered and continue to benefit from.

One PBM practice that harms local pharmacies is

increasing costs resulting from “spread pricing.” PBMs

profit from the “spread” between the amount they charge

health plans for a drug and the amount they reimburse

pharmacies.15 Local pharmacies must work with PBMs,

15. Elizabeth Seeley & Aaron Kesselheim, Commonwealth

Fund, Pharmacy Benefit Managers: Practices, Controversies, and

What Lies Ahead (2019), https://perma.cc/4Q36-B5YE.

8

which have outsized bargaining power as the PBM market

continues to consolidate.16 All major health insurers now

operate their own PBMs.17 The four major health insurers

operate four PBMs that control 88% of the PBM market.18

All but the largest retail pharmacies receive only “take it

or leave it” offers from PBMs.19 This bargaining disparity

results in independent pharmacies effectively having no

meaningful choice but to accept financially detrimental

terms.

Another way that PBMs’ business practices harm

consumers and independent pharmacies is by steering

business to PBM-owned or -affiliated pharmacies. In

addition to limiting consumers’ choice and creating

potential conflicts of interest, this reduces non-affiliated

pharmacies’ business. Again, a lack of transparency

perpetuates the problems. In 2018, for example, the Ohio

Auditor of State issued a report regarding Ohio’s Medicaid

Managed Care Pharmacy Services. 20 The Auditor noted

that Ohio pharmacists reported a number of concerns

about PBM practices, including the use of spread pricing

16. Allison Dabbs Garrett & Robert Garis, Leveling the Playing

Field in the Pharmacy Benefit Management Industry, 42 Val. U.

L. Rev. 33, 36 (2007).

17. Fortune 500–2020, Fortune Mag. (2020), https://perma.

cc/2CKZ-VQ93; Bruce Japsen, Express Scripts Boosts Cigna as

Employers Stick with Larger Insurer, Forbes Mag. (Aug. 1, 2019),

https://perma.cc/C2W3-7JC2.

18. See Fein, supra note 8.

19. Garrett & Garis, supra note 16, at 46.

20. Ohio Auditor of State, Ohio’s Medicaid Managed Care

Pharmacy Services (Aug. 16, 2018), https://perma.cc/V29P-DRA3.

9

and the conflicts of interests associated with PBMs

requiring customers to obtain prescriptions from PBMowned pharmacies. 21 The Auditor observed that the lack

of transparency in the PBM industry was so pervasive

that the Auditor could not determine the exact terms of

the PBMs’ financial arrangements. 22 Related to steering,

PBMs also divert prescriptions to their own pharmacies

by “prescription trolling”: after local pharmacists work

with patients, insurers, and doctors to obtain prior

authorization for expensive medications, PBMs can divert

the prescriptions to their own mail-order pharmacies by

filling the prescription themselves after an independent

pharmacy has consulted with the patient and obtained a

prior authorization. 23

These PBM practices discussed here are injurious

to rural and urban communities alike. Local pharmacies

are critical to providing healthcare in rural communities;

nearly half of rural pharmacies are independently

owned. 24 When PBMs restrict the payments to those

independent pharmacies or steer business away from

them, it harms these businesses and their communities.

21. Id. at 1.

22. Id. at 1-2, 13.

23. Hearing on HF 728 Before the H. Commerce Comm.,

2019 Leg., 91st Sess., at 1:52:25 (Minn. 2019) (statement of Randy

Schindelar), https://www.lrl.mn.gov/audio/house/2019/com022719.

mp3.

24. Edmer Lazaro, et al., RUPRI Ctr. For Rural Health Pol’y

Analysis, Update on Rural Independently Owned Pharmacy

Closures in the United States, 2003-2021. https://perma.cc/AR3BHRD6.

10

Rural independent pharmacies are generally closing at

a higher rate than those in metropolitan areas. 25 This

is particularly concerning because local pharmacies

may be the only source of healthcare services in those

rural communities. 26 Even in major metropolitan areas,

certain communities are hit harder than others. One

study suggests that pharmacies in neighborhoods with

majority Black or Hispanic/Latinx residents were less

likely to open and more likely to close. 27 That same study

found that independent pharmacies accounted for 34.8%

of all pharmacies in majority White neighborhoods, while

accounting for 53.1% and 57.4% of pharmacies in majority

Black and Hispanic/Latinx neighborhoods, respectively. 28

These trends are concerning as the most vulnerable

populations are being disadvantaged by PBM practices

that are increasing costs to, and steering business away

from, independent pharmacies.

PBMs’ practices also contribute to the crisis of

increasing medical costs nationwide, ultimately harming

the end consumer. Prescription drugs continue to

increase in price, averaging a 15.2% increase from 2022

to 2023. 29 One contributing factor to rising drug costs is

25. Id.

26. Id.

27. Jenny S. Guadamuz et al., Fewer Pharmacies in Black and

Hispanic/Latino Neighborhoods Compared with White or Diverse

Neighborhoods, 2007-15, 40 Health Affairs 802, 805 (2021).

28. Id. at 806.

29. Arielle Bosworth, et al., Health & Hum. Servs. Off. of the

Ass’t Sec’y for Planning & Evaluation, Changes in the List Prices

of Prescription Drugs, 2017-2023 (Oct. 6, 2023). https://perma.cc/42RGVYKX.

11

PBMs demanding increasingly large rebates from drug

manufacturers. These rebates are essentially discounts

paid by the manufacturer directly to the PBM. One study

found a positive correlation between increases in PBM

rebates and list prices. 30 This result is not surprising;

profiting from rebates incentivizes PBMs to push

consumers into higher priced drugs that demand higher

rebates and increase profits. 31

The situation for independent pharmacies, and the

consumers that rely on them, is so dire that some are

opting out of the insurance system all together. “Cashonly” pharmacies opt out of the insurance system (and

thereby PBMs) and sell (usually generic) drugs for just

above cost directly to consumers. 32 This scenario may

potentially save patients substantial money in the short

term, but it requires patients to forgo already paid-for

insurance benefits. Additionally, this work around is

not effective for branded drugs that have no generic

30. Neeraj Sood et al., USC Leonard D. Schaeffer Ctr. for

Health Pol’y & Econ., The Association Between Drug Rebates and

List Prices (Feb. 11, 2020), https://perma.cc/L7GA-SA86.

31. Rena M. Conti, M.D., Statement Before the U.S. House

Committee on Oversight and Accountability (Sept. 19, 2023).

https://perma.cc/Q3HW-HF33; Lori M. Reilly, COO, Pharmaceutical

Research and Manufacturers of America, Testimony Before the U.S.

House Committee on Oversight and Accountability, at 5-6 (Sept. 19,

2023). https://perma.cc/2P3X-EYYE.

32. Adiel Kaplan, Kenzi Abou-Sabe, & Vicky Nguyen, NBC

News, Frustrated Pharmacists are Opting Out of the Insurance

System, Saving Some Customers Hundreds of Dollars a Month

(Aug. 19, 2022), https://perma.cc/HC8Y-24GD.

12

alternatives. 33 That these cash-only pharmacies exist

highlights the harms that PBMs cause to consumers and

independent pharmacies.

While the sources of rising drug costs are complex, they

should not be beyond the states’ traditional police power.

States’ PBM regulations have allowed states to concretely

address these problems. Minnesota, for example, prohibits

PBMs from steering business to pharmacies owned by

the PBM. Minn. Stat. § 62W.07. After learning that CVS

Caremark had a program that required consumers to

use a CVS-owned retail or mail-order pharmacy to refill

maintenance medications, the Minnesota Department

of Commerce started an enforcement action. The case

resulted in an order for Caremark to open its preferred

network to all willing pharmacies. 34

States have done the work to identify and regulate

problematic facets of the PBM industry that have

developed over years, and states play a critically important

role in this sphere. Granting certiorari and addressing the

questions presented will give states important guidance

about the contours of their authority to regulate.

II. The Court Should Grant Certiorari to Clarify the

Law Regarding ERISA and Medicare Preemption

as They Relate to State PBM Regulations.

Certiorari review is appropriate because the Tenth

Circuit created a circuit split and misapplied this Court’s

33. Id.

34. Minn. Dep’t of Comm., Commerce Fines CVS Caremark

$500,000 after 2022 Case Alleging Violations of Pharmacy Benefit

Manager Act, (May 1, 2023), https://perma.cc/PC6Z-G5BH.

13

guidance on ERISA preemption. Sup. Ct. R. 10(a), (c).

The Tenth Circuit’s decision conflicts, in important ways,

with the Eighth Circuit’s Medicare-preemption decisions

in Pharmaceutical Care Management Association v.

Wehbi, 18 F.4th 956 (8th Cir. 2021) and Pharmaceutical

Care Management Association v. Rutledge, 891 F.3d 1109

(8th Cir. 2018) (Rutledge I), rev’d on other grounds sub

nom., Rutledge v. Pharmaceutical Care Management

Association, 592 U.S. 80 (2020) (Rutledge II) (addressing

ERISA preemption). The Tenth Circuit’s decision also

conflicts with this Court’s decision in Rutledge II as

to ERISA preemption, as well as the Eighth Circuit’s

application of that decision in Wehbi. Moreover, it more

broadly disregards amici states’ broad police powers

to regulate to promote the health and welfare of their

constituents.

A.

The Tenth Circuit Decision Conflicts with

Eighth Ci rcuit Decisions a nd Creat es

Uncertainty in States’ Ability to Regulate

PBMs.

The Tenth Circuit expressly acknowledged its

disagreement with the Eighth Circuit regarding both

ERISA and Medicare Part D preemption of state PBM

regulations. Mulready, 78 F.4th at 1203, 1208. This circuit

split creates uncertainty regarding states’ regulatory

authority. There are undoubtedly PBM regulations that

would be permitted in the Eighth Circuit but not in the

Tenth. For example, states in the Eighth Circuit may

prohibit PBMs from imposing pharmacist-qualification

requirements beyond state or federal licensure; but

states in the Tenth cannot enforce similar regulations.

Id. at 1202-03; Wehbi, 18 F.4th at 968. This Court should

14

grant certiorari to provide a uniform and consistent

interpretation of the federal preemption questions as they

relate to state regulation of PBMs.

1.

The Tenth Circuit’s Medicare-preemption

analysis conflicts with the Eighth Circuit’s.

While this Court reviewed the Eighth Circuit’s

Rutledge I decision with respect to ERISA preemption,

this Court did not review that court’s holding regarding

Medicare Part D preemption of state PBM regulations.

Rutledge II, 592 U.S. at 83 (noting that the question

presented addressed only ERISA preemption). Following

Rutledge II, the Eighth Circuit revisited Medicare

preemption of state PBM regulations in Wehbi. 18 F.4th at

970. In both cases, the Eighth Circuit held that Medicare

does not preempt a state PBM law unless the state law

regulates the same subject matter as a Medicare standard

or otherwise frustrate a standard’s purpose. Id. at 972;

Rutledge I, 891 F.3d at 1113 (requiring existence of

“‘standards’ in the area regulated by the state law” for

preemption).

This holding flatly contradicts the Tenth Circuit’s

resolution of the same issue. Labeling the Eighth Circuit

test as “fastidious,” the Tenth Circuit rejected the

same-subject test and instead applied a field-preemption

approach to Medicare’s treatment of PBMs. Mulready,

78 F.4th at 1208. Under that approach, any state law that

is “not a licensing law or a law relating to plan solvency”

is preempted. Id. Nor was the Tenth Circuit shy about the

significant impacts its decision would have, recognizing

that it would not allow “[s]tates to regulate Part D plans

above what Part D already requires.” Id.

15

These diametr ically opposed holdings create

uncertainty as to the preemptive scope of Medicare. This

uncertainty is particularly acute because “the scope of

Medicare Part D preemption is largely an open question,”

which this Court has not previously spoken on. Wehbi,

18 F.4th at 970. Left unresolved, this circuit split will likely

deepen as further PBM litigation forces more circuits

to take sides in the circuit split this case has created.

Moreover, states that otherwise might enact further PBM

regulations to curb the abuses described above may be

more reluctant to do so in light of the uncertainty of the

permissible scope of regulations. States should not be

left to legislate in this uncertainty, nor waste resources

relitigating these issues throughout the circuits. A

decision from this Court would provide needed guidance

to states and help reduce further litigation of this issue.

Accordingly, the Court should grant certiorari review in

this case.

2.

The Tenth Circuit’s ERISA-preemption

analysis conflicts with the Eighth Circuit’s.

The Tenth Circuit also parted ways with the Eighth

Circuit regarding ERISA preemption. In Wehbi, the

Eighth Circuit rejected PCMA’s ERISA challenge and

upheld a state prohibition on PBMs imposing pharmacyaccreditation standards beyond those required for state

licensure. Wehbi, 18 F.4th at 968. The Tenth Circuit,

meanwhile, held that ERISA preempts Oklahoma’s similar

prohibition. Mulready, 78 F.4th at 1204.

The basis of this disagreement is differing approaches

for determining, for ERISA purposes, what constitutes

a “central matter of plan administration” under this

16

Court’s precedent. Rutledge II, 592 U.S. at 87. The Eighth

Circuit held that regulations impacting PBMs’ abilities to

exclude pharmacies from their networks did not govern

a central matter of plan administration and had only de

minimis economic effects. Wehbi, 18 F.4th at 968. The

Tenth Circuit, in contrast, held that network composition

was a central matter of plan administration. Mulready,

78 F.4th at 1198. The Tenth Circuit did not dispute the

Eighth Circuit’s conclusion that similar laws had only de

minimis economic effects. Id. at 1203. Yet it concluded that

a challenged regulation with de minimis impact on plan

design could nevertheless implicate a “central matter of

plan administration” and trigger ERISA preemption. Id.

These conflicting results demonstrate a fundamental

disagreement between the circuits regarding the scope of

this Court’s decision in Rutledge II. That case held that

“the responsibility lies first with the PBM” when a benefit

is denied due to failure to comply with state regulation.

Rutledge II, 592 U.S. at 482. Based on that holding, the

Eighth Circuit reasoned that, in some instances, benefit

impacts are “therefore attributable to the independent

actions of PBMs rather than to the law.” Wehbi, 18 F.4th

at 969. The Court extended this reasoning to impacts like

a plan’s inability to provide a covered drug because its

PBM has an unlawful ownership interest in the supplying

pharmacy. Id. Because such laws affect only what PBMs—

not health plans—must do, the Eighth Circuit held they

were not preempted. Id. at 968-69. This was so even

though PBMs (though again, not plans) might include or

exclude certain drugs or pharmacies from their networks

as consequence of such regulation. Id.

The Tenth Circuit, in contrast, limited this Court’s

analysis in Rutledge II to cost regulations, without

17

considering the broader implications of this Court’s actual

analysis. Mulready, 78 F.4th at 1199-1200. The Tenth

Circuit equated regulating PBMs with regulating health

plans, casting PBM networks as “the structures through

which plan beneficiaries access their drug benefits.” Id.

at 1200. And, because Oklahoma’s regulation of those

networks went beyond cost regulation, the court held it was

preempted from imposing any restriction on PBMs’ ability

to include or exclude pharmacies from their networks. Id.

The court reached this conclusion notwithstanding that

the regulation only indirectly impacted ERISA plans. Id.

(“We have thus overlooked this PBM–plan distinction and

assessed the Act’s substantial, indirect effects on ERISA

plans.”).

For the reasons discussed below, the Tenth Circuit’s

decision incorrectly narrowed Rutledge II. But regardless

of whether that decision was correct, the significant

divergence between the Eighth Circuit and Tenth Circuit’s

decisions on this issue means this Court should grant

certiorari to correct the course of whichever circuit was

incorrect.

B. The Tenth Circuit Decision Conflicts with

this Court’s ERISA-Preemption Decision in

Rutledge II.

In addition to the conflict with another federal court

of appeals, the Tenth Circuit’s decision conflicts with this

Court’s ERISA precedent, particularly Rutledge II. The

Tenth Circuit made two fundamental errors in applying

Rutledge II to Oklahoma’s PBM regulations. First, it

disregarded Rutledge II’s holding that responsibility

for complying with PBM regulations lies with PBMs,

18

not the ERISA plans they serve. Second, it ignored the

Court’s clarification that ERISA preemption concerns

who receives benefits and what benefits they receive and

that regulations that do not impact those questions (unless

they impact central matters of plan administration) are

not preempted.

In Rutledge II, the Court upheld reg ulations

authorizing pharmacies to refuse to dispense prescriptions

if the PBM’s reimbursement would be less than the

wholesale cost paid by the pharmacy. Rutledge II, 592 U.S.

at 84. It did so over the PBMs’ protests that the regulation

governed central matters of plan administration because it

effectively denied pharmacy benefits to plan beneficiaries.

Id. at 91. Rejecting this argument, the Court recognized

that the regulation did not dictate benefits when the

pharmacy refused to dispense a prescription because

“the responsibility lies first with the PBM for offering

the pharmacy a below-acquisition reimbursement.” Id.

This holding was consistent with the Court’s past ERISA

jurisprudence. See, e.g., De Buono v. NYSA-ILA Med. &

Clinical Servs. Fund, 520 U.S. 806, 815 (1997) (recognizing

that “myriad state laws of general applicability . . . impose

some burdens on the administration of ERISA plans

but nevertheless do not relate to them so as to trigger

preemption (quotations omitted)); N.Y. State Conf. of Blue

Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S.

645, 660 (1995) (holding that ERISA did not preempt law

that influences “a plan’s shopping decisions, but . . . does

not affect the fact that any plan will shop for the best deal

it can get”).

The Tenth Circuit disregarded this precedent and

Rutledge II’s specific holding that the consequences of

19

PBM regulations fall on PBMs, not the ERISA plans

that voluntarily choose to use them. The Tenth Circuit

addressed two types of PBM regulations: network

regulations and pricing regulations. More specifically,

it rejected Oklahoma’s network requirements that

PBMs: (1) maintain an adequate network; (2) grant any

network-pharmacy (as opposed to only PBM-affiliated

pharmacies) preferred status if the pharmacy meets

the criteria for that status; and (3) not discriminate in

network participation based on a pharmacy employee’s

probationary status with Oklahoma’s licensing board; as

well as Oklahoma’s pricing regulation that PBMs (4) not

use discounts to incentivize using particular in-network

pharmacies. Okla. Stat. tit. 36, §§ 6961(A)(B), 6962(B)

(4)-(5), 6963(E) (2023). But none of these requirements

imposes any regulation on ERISA plans. Instead, they are

all directed solely at PBMs. Rutledge II made clear that

“the responsibility lies first with the PBM” for complying

such regulations, which are therefore not preempted by

ERISA. 592 U.S. at 91.

The Tenth Circuit also fundamentally ignored

the Court’s instruction on what types of regulations

are subject to preemption. In Rutledge II, the Court

reaffirmed that ERISA is “primarily concerned with

pre-empting laws” that “determin[e] beneficiary status”

or “requir[e] payment of specific benefits,” the who and

what of employee benefits. Id. at 86-87. The Tenth Circuit

(correctly) did not hold that any of Oklahoma’s PBM

regulations implicated who received employee benefits.

See generally Mulready, 78 F.4th at 1196-1204. But it

took umbrage with both Oklahoma’s network and pricing

regulations, reasoning that both dictated particular

benefits. Id. at 1199, 1203-04. This reasoning conflicts

with Rutledge II.

20

With respect to Oklahoma’s pricing regulation, it is

quintessentially a “form of cost regulation” like those that

the Court upheld in Rutledge II. 592 U.S. at 88. Oklahoma

prohibits PBMs from “using any discounts in cost-sharing

or a reduction in copay or the number of copays” to

incentivize using particular, in-network pharmacies. Okla.

Stat. tit. 36, § 6963(E). And this Court expressly held

that “ERISA does not pre-empt state rate regulations

that merely increase costs or alter incentives for ERISA

plans.” 592 U.S. at 88. Oklahoma’s law is precisely that;

it regulates the rates at which PBMs cover claims. While

this regulation may “alter incentives” insofar as it means

PBMs cannot favor their own, PBM-affiliated pharmacies,

Rutledge II makes clear that that alteration does not

trigger preemption.

The Tenth Circuit disregarded this Court’s Rutledge II

instruction, going so far as to declare that state laws

trigger preemption if they affect the “cost-sharing

arrangements [under which] pharmacies participate in

the network.” Mulready, 78 F.4th at 1198. But this Court

upheld such laws in Rutledge II. The regulation in that

case certainly impacted the cost-sharing arrangements

for pharmacy-network participation because it outlawed

reimbursing pharmacies at below drug-acquisition costs.

Rutledge II, 592 U.S. at 90. Although this Court held such

laws are not preempted, the Tenth Circuit ignored that

ruling here.

Turning to the network regulations, Rutledge II made

clear that PBM regulations establishing floors for the cost

of benefits that plans choose to provide are not preempted.

592 U.S. at 90. Oklahoma’s network regulations operate

in a similar manner with respect to networks: they

ensure a base level of geographic coverage in Oklahoma,

21

prohibit PBMs from discriminating against non-affiliated

pharmacies when those pharmacies can meet the PBM’s

established standards, and prohibit PBM discrimination

based on probationary status. None of these requirements

“bind plan administrators” (or PBMs for that matter

because PBMs are not plans) to any “particular” choice.

Id. at 87 (internal quotation marks omitted). Instead,

the particulars of implementing their networks remain

entirely in PBMs’ hands.

The effect of the Tenth Circuit’s decision is to invite

uncertainty as to this Court’s holdings in Rutledge II. The

Court made clear that compliance with PBM regulations

“lies first” with PBMs, not plans, clearly recognizing

that such regulations do not “bind plans” and therefore

are not preempted. The Court also reiterated its prior

holdings that regulations that did not direct particular

benefits to particular people were not preempted. But the

Tenth Circuit’s disregard of these holdings throws states

into doubt as to whether the Court meant what it said in

Rutledge II. Review by this Court is therefore necessary

to ensure that states continue to be able to enforce needed

consumer protections and prevent the blatant abuses that

PBMs would otherwise engage in.

C.

The Tenth Circuit Decision Ignores States’

Traditional Police Powers.

Apart from its divergence with Rutledge II, the Tenth

Circuit’s decision also disregarded states’ well-established

police powers to protect the health and safety of their

constituents. As sovereigns, amici states have broad

general police powers to enact regulations to protect their

constituents. See Munn v. Illinois, 94 U.S. 113, 124-25

(1876).

22

ERISA did not shed states of these powers. On the

contrary, the Court has repeatedly recognized amici

states’ traditional police powers as a basis for caution when

determining ERISA’s preemptive scope. For example,

outside of the PBM context, the Court has recognized

that it would be “unsettling” to interpret ERISA’s

preemption clause to preempt “traditionally stateregulated substantive law in those areas where ERISA

has nothing to say.” Cal. Div. of Lab. Standards Enf’t v.

Dillingham Constr., N.A., Inc., 519 U.S. 316, 330 (1997)

(citing Travelers, 514 U.S. at 665). Although that case

applied to state regulations of apprenticeship programs,

it is readily analogized to pharmacy benefits. There the

Court held that:

No apprenticeship program is required by

California law to meet California’s standards.

If a contractor chooses to hire apprentices for

a public works project, it need not hire them

from an approved program (although if it does

not, it must pay these apprentices journeyman

wages). So, apprenticeship programs that have

not gained CAC approval may still supply

public works contractors with apprentices.

Unapproved apprenticeship programs also

may supply apprentices to private contractors.

The effect of [the state regulation] on ERISA

apprenticeship programs, therefore, is merely

to provide some measure of economic incentive

to comport with the State’s requirements, at

least to the extent that those programs seek

to provide apprentices who can work on public

works projects at a lower wage.

23

Id. at 332 (citations omitted). Applied to PBMs, “No

[pharmacy-benefit] program is required by [Oklahoma]

to meet [Oklahoma’s] standards. . . . [Pharmacy-benefit]

programs that have not [used a PBM] may still supply

[non-compliant pharmacy benefits] . . . . The effect of [PBM

regulations] on ERISA [pharmacy-benefit] programs,

therefore, is merely to provide some measure of economic

incentive to comport with the State’s requirements.”

And within the context of state laws implicating medical

benefits, parties bear a “considerable burden” to overcome

the presumption against preemption with respect to

state health and safety regulations. De Buono, 520 U.S.

at 814; see also Rush Prudential HMO, Inc. v. Moran,

536 U.S. 355, 365 (2002) (noting ERISA preemption must

be “tempered” in light of states’ historical police powers);

Travelers, 514 U.S. at 655.

The Tenth Circuit disregarded these cautionary

instructions. Indeed, its only acknowledgement of

states’ traditional regulatory authority appeared in

a single parenthetical to a single citation in a single

footnote. Mulready, 78 F.4th at 1206 n.22. This failure

to even address states’ traditional police powers further

demonstrates the fundamentally flawed reasoning of the

Tenth Circuit’s decision. As discussed in Section I, PBM

regulations play an important role in states’ efforts to

protect the health and safety of their citizens by increasing

access to reasonably priced prescriptions. Those efforts

fall squarely within the traditional categories of state

regulation, but they have been disrupted by the Tenth

Circuit’s decision. The Court should accordingly grant

review to restore the appropriate balance between those

state interests and ERISA preemption.

24

CONCLUSION

The Court should grant the petition for a writ of

certiorari on both questions presented. States’ authority

to regulate PBMs presents important questions and the

Tenth Circuit’s decision creates conflicts with decisions

of both this Court and the Eighth Circuit.

Dated: June 10, 2024

Respectfully submitted,

K eith Ellison

Attorney General

State of Minnesota

A ngela Behrens*

Stephen Melchionne

A llen Cook Barr

Assistant Attorneys General

445 Minnesota Street, Suite 1400

St. Paul, MN 55101-2131

(651) 757-1204 (Voice)

angela.behrens@ag.state.mn.us

stephen.melchionne@ag.state.mn.us

allen.barr@ag.state.mn.us

Attorneys for Amici Curiae States

* Counsel of Record

25

Additional Amici States:

K ris M ayes

Attorney General

Arizona

Kwame Raoul

Attorney General

Illinois

Rob Bonta

Attorney General

California

Theodore E. Rokita

Attorney General

Indiana

Philip J. Weiser

Attorney General

Colorado

Liz Murrill

Attorney General

Louisiana

William Tong

Attorney General

Connecticut

A aron M. Frey

Attorney General

Maine

K athleen Jennings

Attorney General

Delaware

A nthony G. Brown

Attorney General

Maryland

Brian L. Schwalb

Attorney General

District of Columbia

A ndrea Joy Campbell

Attorney General

Massachusetts

A shley Moody

Attorney General

Florida

Dana Nessel

Attorney General

Michigan

A nne E. Lopez

Attorney General

Hawaii

Lynn Fitch

Attorney General

Mississippi

26

Michael T. Hilgers

Attorney General

Nebraska

Ellen F. Rosenblum

Attorney General

Oregon

A aron D. Ford

Attorney General

Nevada

Michelle A. Henry

Attorney General

Pennsylvania

John M. Formella

Attorney General

New Hampshire

Peter F. Neronha

Attorney General

Rhode Island

M atthew J. Platkin

Attorney General

New Jersey

M arty J. Jackley

Attorney General

South Dakota

Letitia James

Attorney General

New York

K en Paxton

Attorney General

Texas

Joshua H. Stein

Attorney General

North Carolina

Sean D. Reyes

Attorney General

Utah

Dave Yost

Attorney General

Ohio