Appendix — Group Life & Health Ins. Co. v. Royal Drug Co.

Supreme Court brief1979

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Supreme Court, U. §

FILED |

1978

APPENDIX _, we

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-952

Group LIFE AND HEALTH INSURANCE COMPANY,

also known as

BLUE SHIELD OF TEXAS, et al.,

Petitioners,

v.

RoyaL DruG Company, INC.,

doing business as

ROYAL PHARMACY OF CASTLE HILLS

and

DISCO PRESCRIPTION PHARMACY, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

aan

PETITION FOR WRIT OF CERTIORARI FILED JANUARY 3, 1978

CERTIORARI GRANTED FEBRUARY 27, 1978

INDEX TO APPENDIX

Relevant Docket Entries:

FT ELE OE CRT Os EE Ie

I iia lca his delcitaiieiaahenetianeiainadsinantiadihnticees

its CN, TN ia a

Answer of Defendant Rieger/Medi-Save Pharmacies, Inc.,

I I CI aliens ditch nasheitinihechebchiatticiontidiphndbiindietiosndabibbeiinicinbdeness

Answer of Defendant The Sommers Drug Stores Company,

Ts, a alicia Ditech ctielninclasiaiisceittaatainiiti et tes

Answer of Defendant Group Life and Health Insurance

en , chetaeiobadaniniaesieedianemaiade

Answer of Defendant Walgreen Texas Co., June 27, 1975...

Joint Motion to Suspend Discovery and to Modify Order

Preliminary to Pre-Trial Conference, January 21, 1976....

Order of United States District Court for the Western Dis-

trict of Texas Approving Joint Motion to Suspend Dis-

covery and to Modify Order Preliminary to Pre-Trial

Conference, January 28, 1976 .....................-...-....2.---0.....

Motion of Defendant Group Life and Health Insurance Com-

pany to Dismiss, February 23, 1976 ............220000000-. 8

Affidavit of Steve G. McDonald, February 23, 1976 ..........

Group Life and Health Insurance Company Drug Supple-

ment Policy, dated April 1, 1969 (Exhibit A to McDonald

IEEE * hehindttditin byotpteegiaaeiclehalinidincstuhh ecedhchatiheededegnaiatanalliahadeheidstbacie

Participating Drug Pharmacy siociancats (Exhibit B to

i

Letter of Transmittal of Policy and Agreement to State

Board of Insurance, dated March 14, 1969 (Exhibit C to

I ete

Official Order No. 29701 of Texas Commissioner of Insur-

ance, dated June 18, 1969 (Exhibit D to McDonald Affi-

(ACRE ESA ERR SSRIS ces Leak 6 SILI A A De act» SAF RN a Ie

5la

59a

62a

ii

Official Order No. 30413 of Texas Commissioner of Insur-

ance, dated September 30, 1969 (Exhibit E to McDonald

Affidavit) -...............

Group Life and Health Insurance Company Drug Supple-

ment Policy, dated October 1, 1974 (Exhibit F to Mc-

Donald Affidavit)

Letter of Transmittal of Policy to State Board of Insurance,

dated September 23, 1974 (Exhibit G to McDonald Affi-

ES

Official Order No. 45511 of Texas Commissioner of Insur-

ance, dated October 1, 1974 (Exhibit H to McDonald

OE poet TaES Nel BACT

Motion of Defendant Walgreen Texas Co. to Dismiss, Feb-

TUALY 2B, 1976 .....-----.----------n-n--n--ceeenerorernesnnsnensnesnenennsnssnenes

Motion of Defendant The Sommers Drug Stores Company

to Dismiss, February 23, 1976 -...............--------------------------

Motion of Defendant Rieger/Medi-Save Pharmacies, Inc.

to Dismiss, February 25, 1976 ...............------------------------------

Stipulation of Plaintiffs and Defendant Rieger/Medi-Save

Pharmacies, Inc., March 11, 1976 ...............-..----------------------

Stipulation of Plaintiffs and Defendant The Sommers Drug

Stores Company, March 11, 1976 __........--------------------------

Stipulation of Plaintiffs and Defendant Walgreen Texas Co.,

- . xe

Affidavit of Bruce L. Busby, April 19, 1976 ......................-..--.

Affidavit of John Hannah, April 19, 1976 .............-.-.---.---------

Opinion of United States District Court for the Western

District of Texas, May 18, 1976 _............--...--..------------------

Final Order and Judgment of United States District Court

for the Western District of Texas, May 18, 1976 -..............

Opinion of United States Court of Appeals for the Fifth

Circuit, August 8, 1977

el

Page

76a

116a

117a

iii

Judgment of United States Court of A peals Fifth

Circuit, August 8, 1977 f ; echoes

Notice of Order Denying Petition for Reheari

hearing En Banc, October 27, 1977 snes ihicusbandi

EXHIBITS TO APPENDIX

Excerpts from Deposition of Judith J

ge . Johnson, November

Blue Shield of Texas Form Letter and Enclos ici

ures (Partici-

pating Drug Pharmacy Agreement, Drug Manual, Decals

and Forms) (Exhibit 2 to Johnson Deposition)

Letter from Ernest A. Maxwell to The Sommers Drug Stores

Company, dated October 9, 1974 (Exhibi

etc (Exhibit 4 to Johnson

Letter from Judy Johnson to Patts Dru

g Store, dated D

cember 20, 1974 (Exhibit 7 to Johnson Deposition) 7"

Memorandum from David Thigpen to Ra

y Pace, dated N

vember 19, 1974 (Exhibit 12 to Johnson Deposition) 2

Memorandum from David Thigpen to Jud

y Johnson, dated

November 19, 1974 (Exhibit 18 to Johnson Deposition) ..

Participating Drug Pharmacy Agreement Betw

t een G

Life and Health Insurance Company and Walgreen ti /

Texas, dated January 27, 1970 ;

eee nee we wenn

SPOR mma meee ee we es eeeeeeeeennnee

Memorandum Entitled “Special Plan Meetings: Auto Pre-

scription Drug Program” (Exhibit 23 to

— Johnson Depo-

Letter from M.C. Rotter to Tom L. Beaucham

p, Jr., dated

May 28, 1968 (Exhibit 32 to Johnson Deposition)

Excerpts from Deposition of Lee Helis, November 21, 1975...

— from Deposition of Steve G. McDonald, November

. 5 Rs ,

Page

139a

140a

14la

159a

194a

196a

198a

199a

200a

205a

276a

278a

288a

iv

Drug Supplement Policy of Group Life and Health Insur-

ance Company, dated April 1, 1969, Disapproved by Order

No. 29701 of Texas Commissioner of Insurance, dated

June 18, 1969 (Exhibit 37 to McDonald Deposition)..........

Drug Supplement Policy of Group Life and Health Insur-

ance Co., dated October 1, 1974, Approved By Order No.

45511 of Texas Commissioner of Insurance, dated October

1, 1974 (Exhibit 39 to McDonald Deposition) -..................

ae

Participating Drug Pharmacy Agreement Between Group

Life and Health Insurance Company and Drug Mart

Pharmacy, dated October 12, 1974 (Exhibit 6 to Pogue

TD cecccictentisinimnnictenpeninnineaiemie maple

Letter from Steve G. McDonald to Robert C. McAnelly, dated

March 14, 1969 (Exhibit 51 to Pogue Deposition) .............

Group Life and Health Insurance Company Drug Supple-

ment Policy, dated April 1, 1969 (Exhibit 52 to Pogue

Deposition) -.........

Official Order No. 29701 of Texas Commissioner of Insur-

ance, dated June 18, 1969 (Exhibit 53 to Pogue Deposi-

RR Re eee

Letter from Paul D. Connor to Hon. Crawford Martin,

dated August 21, 1969 (Exhibit 54 to Pogue Deposition) -.

Official Order No. 29701 of Texas Commissioner of Insur-

ance, dated September 30, 1969 (Exhibit 55 to Pogue

TINY coccceicccterepeevecesenseees-ccennienpeesensietenenenennsennantanettnngsvoranie

Letter from Paul D. Connor to Hon. Crawford Martin, dated

October 1, 1969 (Exhibit 56 to Pogue Deposition) ............

Letter from Steve G. McDonald to A. W. Pogue, dated Sep-

tember 23, 1974 (Exhibit 57 to Pogue Deposition) ..........

Group Life and Health Insurance Company Drug Supple-

ment Policy, dated October 1, 1974 (Exhibit 59 to Pogue

Deposition)

OO ERR REET Ee

Page

303a

3lla

319a

367a

370a

372a

374a

377a

Vv

Official Order No. 45511 of Texas Commissioner of Insur-

ance, dated October 1, 1974 (Exhibit 6

ee ( : sas Pogue Depo-

— from Deposition of Paul D. Connor, December 30,

Excerpts from Deposition of Robert C. M ecem

ber 30, 1975 ....... tase aon

Excerpts from Deposition of Donald H. B

a. ae - Bunnell, December

Articles of Incorporation of Group Life and Health Insur-

ance Company, dated December 15, 1960 ibi

Bunnell Deposition) vos seabed

Certificate of Authority No. 2246 Issued to Group Life and

Health Insurance Company, dated December 15

“ys of . 19

(Exhibit 65 to Bunnell Deposition)... vid

Texas Attorney General Opinion No. WW-1475, d

‘ - , dated De-

cember 11, 1962 (Appendix I to Brief of Appellee Group

Life and Health Insurance Company)

Page

385a

387a

409a

42la

430a

470a

Date

6/25/76

7/16/76

7/21/76

8/2/76

8/2/76

8/4/76

9/7/76

9/8/76

9/24/76

9/24/76

9/24/76

10/4/76

10/6/76

10/12/76

10/26/76

10/27/76

10/27/76

11/4/76

1/10/77

vii

RELEVANT DOCKET ENTRIES

COURT OF APPEALS

FILINGS/ PROCEEDINGS

Fig. Duplicate Notice of Appeal and Clerk’s Statement

of Docket Entries

Fig. Notice of Election [Under] Rule 30(c) [Deferred

Appendix]

Fig. Appellants’ Designation

Fig. Amended Notice of Appeal, filed in D.C. 6/23/76

Fig. Record on Appeal

Fig. Exhibits to Brief

Fig. Brief for Appellants

Flg. Appellants’ Designation

Fig. Appellee’s Designation (Group Life)

Fig. Brief for Appellee Group Life and Health Insur-

ance Company

Fig. Brief for Appellee Rieger, et al.

Fig. Motion for Leave to File Reply Brief in Excess

Pages (Granted, 10/12/76)

Fig. Appellants’ Supplemental Designation

Fig. Reply Brief for Appellants

Fig. Motion for Extension of Time to File Appendix

Fig. Exhibits

Fig. Motion for Leave to File Supplemental Record

(Granted, 10/27/76)

Fig. Appendix

Fig. Motion of Appellees, Sommers Drug Stores Com-

pany, et al., to designate counsel for oral argument

Date

1/13/77

1/19/77

1/20/77

3/28/77

4/13/77

6/3/77

6/23/77

6/27/77

8/8/77

8/8/77

8/22/77

9/6/77

9/12/77

9/19/77

viii

Fig. Appellants’ Letter dated 1/11/77 citing recent

decision of the Fourth Circuit Court of Appeals

Fig. Appellee’s (Walgreen Texas Co.) Letter dated

1/11/77

Fig. Letter of Appellee Group Life and Health Insur-

ance Company, dated 1/17/77 responding to Appel-

lants’ letter dated 1/11/77 and citing recent opinions,

copies attached

Fig. Appellants’ letter dated 3/24/77 citing recent

opinion of the U.S. Court of Appeals for the Fourth

Circuit

Fig. Letter of Appellee, Group Life and Health Insur-

ance Company, dated 4/11/77 enclosing recent opin-

ion of the U.S. Court of Appeals for the Fourth

Circuit

Fig. Appellants’ letter dated 5/30/77 enclosing a copy

of opinion in Barry Vv. St. Paul Fire & Marine Ins. Co.

Fig. Letter of Appellee, Group Life and Health Insur-

ance Company, dated 6/21/77 enclosing copy of recent

decision from U.S. Court of Appeals for the District

of Columbia

Fig. Appellants’ letter dated 6/27/77 replying to Appel-

lees’ letter dated 6/21/77

Opinion Rendered

[Judgment of U.S. Court of Appeals for the Fifth

Circuit]

Fig. Petition for Rehearing En Banc

Fig. Brief of Amicus Curiae (R.B. Cousins) in support

of Petition for Rehearing En Banc

Fig. Amicus Curiae (Allstate Insurance Company)

Fig. Order Granting Motion of Allstate Insurance Com-

pany for Leave to File Brief as Amicus Curiae in

support of Appellees’ Petition for Rehearing and

Rehearing En Banc and for Extension to file same

to 9/19/77

—

ee

Date

9/20/77

9/22/77

10/27/77

11/3/77

11/9/77

11/10/77

11/14/77

12/6/77

12/16/77

ix

Fig. Brief of Amicus Curiae, Allstate Insurance Com-

pany, in support of Petition for Rehearing En Banc

on behalf of Appellees, Group Life and Health Insur-

ance Company

Fig. Appellees’ Supplement to Petition For Rehearing

En Bane

Order Denying Rehearing En Banc

Fig. Motion for Stay of Mandate

Fig. Appellees’ Reply to Appellants’ Opposition to Ap-

pellees’ Motion for Stay of Mandate

Fig. Appellants’ Supplemental Response to Appellees’

Reply to Appellants’ Opposition to Motion for Stay of

Mandate

[Order Granting Motion for Stay of Mandate]

Fig. Motion for Further Stay of Mandate

[Order Granting Motion tor Further Stay of Mandate]

Date

5/29/75

5/30/75

6/4/75

6/16/75

6/20/75

6/23/75

6/23/75

6/26/75

6/27/75

6/27/75

6/27/75

7/30/75

8/7/75

8/8/75

8/11/75

8/13/75

on | eT a TE

x

DISTRICT COURT

FILINGS/ PROCEEDINGS

Original Complaint, filed. [J] ury demand

Summonses issued. (4)

2. Summons (Sommers Drug Stores) re/ex 6-2-75.

8. Summons (Gibson Pharmacy by serving Sec. of

State of Texas) re/ex 6-3-75.

Original Ans. of Deft., Rieger/Medi-Save Pharma-

cies, Inc., filed.

Marshal’s Return on Complaint and Summons

re/ex 6/10/75.

Deft. Answer [The Sommers Drug Store Company]

and Jury Demand, filed.

Marshal’s Return on Complaint & Summons re/ex

6/10/75

Answer of Deft. Group Life & Health Ins. Co.,

filed.

Request for Production of Documents by Deft.

Group Life & Health Insurance Co. (First set),

Joel H. Pullen, Attorney for Pitfs., filed.

Answer of Def. Walgreen Texas Co. and Jury De-

mand, filed.

. Agreed Motion for Ext. of Time to Resp. to Deft’s

Request for Prod. of Doc., filed.

Order Granting Agreed Motion for Ext. of Time

To Resp. to Deft’s Request for Prod. of Doc., filed.

Order Preliminary to Pre-Trial Conference, filed.

Pitfs’ Objections and Ans. to Request for Prod.

of Doc., filed.

Pitfs’ Motion to Bifurcate Discovery & for Pro-

tective Order, filed.

Date

8/20/75

8/20/75

8/25/75

8/25/75

8/25/75

8/26/75

8/27/75

8/29/75

9/10/75

9/29/75

9/29/75

11/14/75

12/3/75

16.

17.

18.

19.

20.

21.

xi

Opposition of Deft. Group Life & Health Ins. Co.

to Pitfs’ Motion to Bifurcate Discovery & in the

Alternative for Protective Order Pursuant to Rule

26, Fed. Rules of Civil Proc., filed.

Memo Brief of Deft. Group Life & Health Ins. Co.

in Opposition to Pitfs’ Motion to Bifurcate Dis-

covery & in the Alternative for Protective Order,

filed.

Deft., Rieger-Medi-Save, Inc.’s, Response in Oppo-

sition to Pitfs’ Motion to Bifurcate Discovery &

for Alternative Relief, filed.

Brief in Support of Deft., Rieger-Medi-Save, Inc.’s

Response in Opposition to Plitfs’ Motion to Bifur-

cate Discovery & for Alternative Relief, filed.

Opposition of Deft., Walgreen Texas Co., to Motion

of Pitfs’ Motion to Bifurcate Disc. & in the Alter-

native, for Protective Order, filed.

Response of Deft., the Sommers Drug Stores Co.,

to Pitfs’ Motion to Bifurcate Discovery and in the

Alternative for Protective Order, filed.

22. Brief of Pitfs in Resp. to Defts’ Opposition to

25.

26.

Pitfs’ Motion to Bifurcate Discovery, filed.

Reply of Deft. Group Life & Health Ins. Co. to

Brief of Pitfs. in Response to Defts’ Opposition

to Pitfs’ Motion to Bifurcate Discovery, filed.

Notice Duces Tecum to Take Deposition Upon Oral

Examination, filed.

Order Denying Pitfs’ Motion to Bifurcate Dis-

covery & in the Alternative for Protective Order,

filed.

Order Requiring Stipulation of Positions on Dis-

puted Discovery, filed.

Notice of Intent to Take Deposition.

Stipulation of Dismissals. Filed.

Date

12/12/75

12/12/75

12/12/75

12/12/75

12/15/75

12/15/75

12/23/75

12/23/75

12/23/75

12/23/75

12/23/75

1/6/76

1/6/76

31.

32.

36.

37.

xii

Notice Duces Tecum to take Deposition Upon Oral

Examination. Filed. (Mr. A. W. Pogue)

Notice Duces Tecum to take Deposition Upon Oral

Examination of Mr. R. C. McAnelly. Filed.

Notice Duces Tecum to take Deposition Upon Oral

Examination of Mr. Donald H. Bunnell. Filed.

Notice Duces Tecum to take Deposition Upon Oral

Examination of Mr. Paul D. Connor. Filed.

Ordered that the Stipulation of Dismissals is ap-

proved and cause is dismissed with prejudice as

to Alamo Heights Pharmacy, Inc., Patts Drug,

Inc., d/b/a Patt’s Drug Store No. 1, Thomas J.

Parma d/b/a Parma’s Pharmacy, Baylor Parsons

d/b/a Parson’s Pharmacy, James Pollock d/b/a

Pollock’s Pharmacy, Physicians & Surgeons Phar-

macy, Inc., and Charles Griffin d/b/a Dellview

Drug Store.

DOCKET CALL: Pre-Trial Order due April, 1976.

Case will be called for announcements and possible

setting on March-April Docket.

Amended Notice to take Deposition Upon Oral

Examination of Paul D. Connor. Filed.

. Amended Notice to take Deposition upon Oral Ex-

amination of R. C. McAnelly. Filed.

Amended Notice Duces Tecum to take Deposition

Upon Oral Examination of A. W. Pogue. Filed.

Amended Notice Duces Tecum to take Deposition

Upon Oral Examination of Donald H. Bunnell.

Filed.

Motion to Compel Discovery Filed.

Marshals Return on Deposition Subpoena Received

(Re/ex 12/29/75) (A. W. “Woody” Pogue).

Marshals Return on Deposition Subpoena Received

(Re/ex 12/29/75) (R. C. MeAnelly).

Date

1/6/76

1/6/76

1/6/75

1/6/76

1/6/76

1/6/76

1/6/76

1/6/76

1/6/76

1/6/76

1/6/76

1/6/76

1/6/76

39.

40.

xiii

Marshals Return on Deposition Subpoena Received

(Re/ex 12/30/75) (Donald H. Bunnell).

Marshals Return on Deposition Subpoena Received

(Re/ex 12/29/75) (Paul D. Connor).

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Dellmar Pharmacies, Inc. d/b/a Dellmar

Pharmacy #4. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Delimar Pharmacies, Inc. d/b/a Dellmar

Pharmacy +4. Filed.

. Notice Duces Tecum to Take Deposition Upon Oral

Exam of Blauser’s Pharmacy, Inc. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Parker’s Pharmacy, Inc. Filed.

43. Notice Duces Tecum to Take Deposition Upon Oral

Exam of Highland Hills Pharmacy, Inc. Filed.

44. Notice Duces Tecum to Take Deposition Upon Oral

45.

46.

47.

49.

Exam of Craig Bell d/b/a Bell Pharmacy. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Royal Drug Co., Inc. d/b/a Pharmacy

of Castle Hills and Disco Prescription Pharmacy.

Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of White Cross Professional Pharmacy, Inc.,

d/b/a White Cross #1 and #4. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Blanco Pharmacy, Inc. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Econodose Systems, Inc. d/b/a Medical

Center Pharmacy. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Gustin Hncir d/b/a Turner’s Pharma-

cists. Filed.

Date

1/6/76

1/6/75

1/6/76

1/6/76

1/6/76

1/6/76

1/12/76

1/15/76

1/15/76

1/16/76

1/19/76

1/21/76

51.

52.

53.

58.

xiv

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Carlos Diaz d/b/a Valley View Phar-

macy. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Alfred Sangalli d/b/a Star Drug Store.

Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Blanco Southside Pharmacy, Inc. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Rodolfo L. Davila, Inc. d/b/a Davila

Pharmacy. Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Rong, Inc. d/b/a Economy Pharmacy.

Filed.

Notice Duces Tecum to Take Deposition Upon Oral

Exam of Zarzamora Pharmacy, Inc. Filed.

Notice Int. to Take Depo. Pursuant to Rule

30(b) (6), filed.

Notice of Intention to Take Depos. of Rieger/Medi-

Save Pharmacies, filed.

Notice of Intention to Take Depos. of Walgreen

Texas Co., filed.

[no item 59]

60.

61.

Deposition of Donald H. Bunnell, filed.

ORDER Approving Stipulation of Dismissals (Dis-

missing with prejudice Alamo Hgts. Pharmacy,

Inc.; Patts Drug, Inc. dba Patt’s Drug Store #1;

Thomas J. Parma dba Parma’s Pharmacy; Baylor

Parscn’s dba Parson’s Pharmacy; James Pollock

dba Pollock’s Pharmacy; Physicians & Surgeons

Pharmacy, Inc; Charles Griffin dba Dellview Drug

Store).

Joint Motion to Suspend Discovery and to Modify

Order Preliminary to Pre-Trial Conference, filed.

Date

1/23/76

1/28/76

2/2/76

2/23/76

2/23/76

2/23/76

2/23/76

2/23/76

2/25/76

2/25/76

3/10/76

3/11/76

3/11/76

3/12/76

3/15/76

ORDER Approving Joint Motion to Suspend Dis-

covery and to Modify Order Preliminary to Pre-

Trial Conference, filed.

64. Deposition of Paul D. Connor and A. W. Pogue,

filed.

65. Deposition of Robert C. McAnelly, filed.

S

67.

75.

76.

Motion of Def., Group Life & Health Ins. Co.,

to Dismiss, filed.

Brief of Def., Group Life and Health Ins. Co. in

Support of Motion to Dismiss, filed.

Motion of Def., Walgreen Texas Co., to Dismiss,

filed.

. Motion of Def., The Sommers Drug Stores Co., to

Dismiss, filed.

Brief of Sommers Drug Stores Co., in Support of

Motion to Dismiss, filed.

. Def., Rieger/Medi-Save Pharmacies, Inc.’s Motion

to Dismiss, filed.

Memorandum Brief in Support of Def., Rieger/

Medi-Save Pharmacies, Inc.’s Motion to Dismiss,

filed.

. Motion to Extend Time for Filing Defs’ Response

and Brief to Defs’ Motion to Dismiss, filed.

. Stipulation of Plfs. & Def., Rieger/Medi-Save

Pharmacies, Inc., filed.

Stipulation of Plfs. and Def., Sommers Drug

Stores Co., filed.

Stipulation of Plfs. and Def., Walgreen Texas Co.,

filed.

DOCKET CALL: Hearing on Motion to Dismiss

requested by Mr. Pullen and set for April 19, 1976

at 2:30 P.M. All briefs are to be filed in advance.

Set on June, 1976 Docket. Settlement not possible

at this time.

Date

3/19/76 77.

3/24/76 178

4/5/76 79

4/15/76 80

4/15/78 81.

4/9/76 82.

4/19/76 83.

4/19/76 84.

5/18/76 84.

xvi

ORDER Allowing 10 days to Respond after filing

of the last of the depositions of Steve G. McDonald,

Judith S. Johnson and Lee Helis, filed.

. Depositions of Judith S. Johnson, Lee Helis and

Steve G. McDonald, filed.

. Plaintiffs’ Brief in Opposition to Defendants’ Mo-

tion to Dismiss, filed.

. Defendant’s Rieger/Medi-Save Pharmacies, Inc.,

Reply Brief in Support of its Motion to Dismiss,

filed.

Reply of Defendant Group Life and Health Ins.

Co. to Plaintiffs’ Brief in Opposition to Motion to

Dismiss, filed.

Affidavit in Support of Defendant Rieger/Medi-

Save Pharmacies, Inc.’s Motion to Dismiss, filed.

Reply of Def., The Sommers Drug Stores Co. to

Plaintiffs’ Brief in Opposition to Motion to Dis-

miss, filed.

HEARING ON MOTION TO DISMISS: Movant,

Group Life Ins., et al, announced ready. Respond-

ent announced ready. Mr. Kaiser asked Court to

treat this motion as a Motion for Summary Judg-

ment. Respondent argued against in that in this

instance with reference to drugs, Blue Cross &

Blue Shield are not in insurance business. Both

sides agreed to an Interlocutory Appeal, whether

the Court decides for plaintiff or defendant. Mr.

Kaiser cited cases he wishes the Court to consider.

Mr. Pullen cited the State Board of Insurance does

not feel it has the right to regulate pharmacies.

Any additional authorities are to be given to the

Court by Friday. The Court will take this matter

under advisement. Decision on motion will prob-

ably be ready in a week.

MEMORANDUM OPINION, filed. (Including

Findings of Fact and Conclusions of Law contain-

ed therein.)

wameneees ee en a ee

Date

5/18/76

6/16/76

6/16/76

6/23/76

6/23/76

6/24/76

7/2/76

7/9/76

7/16/76

7/26/76

1/7/78

1/7/78

86.

93.

95.

xvii

- ORDER (consistent with the Memo. Opinion and

Findings of Fact and Conclusions of Law) render-

ing judgment for and in behalf of Defts. Group

Life and Health Ins. Co., aka/Blue Shield of Texas,

Walgreen Texas Co., The Sommers Drug Stores

Co. Se ere Pharmacies, Inc. with

respec aintiffs’ Claims i-

manera under the federal anti

Notice of Appeal, filed. Cy. to Court of A peals

for Fifth Circuit. mites

Bond for Costs on Appeal Secured b

ear y Cash De-

Amended Notice of Appeal, filed.

- Amended Bond for Costs on Appeal Secured by

Cash Deposit, filed.

ae of Contents of Record on Appeal,

. Designation of Deft. Group Life & Health Ins. Co.

of Transcript and Additional Parts to be included

in the Record on Appeal, filed. ae

Appellants’ Supplemental Designation of Contents

of Record on Appeal, filed. Cy. to Court of Ap-

Transcript of Hearing on Motions to Dismiss

April 19, 1976, filed. ™ ”

ORIGINAL RECORD ON APPEAL MAILED

a to Court of Appeals for the Fifth

ircui

. Copy from the Fifth Circuit of Appellees’ Motion

for Stay of Mandate, filed.

Order from the Fifth Circuit GRANTING Appel-

lees Motion for Stay of the Issuance of the Man-

date pending Petition for Writ of Certiorari, filed.

la

COMPLAINT, MAY 29, 1975

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Civil Action No. SA 75 CA 131

—

ROYAL DruG COMPANY, INC. d/b/a ROYAL PHARMACY OF

CASTLE HILLS and DISCO PRESCRIPTION PHARMACY,

BLAUSER’S PHARMACY, INC., PARKERS PHARMACY, INC.,

CHARLES GRIFFIN d/b/a DELLVIEW DRUG STORE, JAMES

POLLOCK, d/b/a POLLOCK’s PHARMACY, THOMAS J.

PARMA, d/b/a PARMA’S PHARMACY, CRAIG BELL, d/b/a

BELL PHARMACY, GEORGE STONE, d/b/a OLMOS PHAR-

MACY, ALAMO HEIGHTS PHARMACY, INC., PATTS DRUG,

INC. d/b/a PATT’s DRUG STORE No. 1, BAYLOR PARSONS

d/b/a PARSONS PHARMACY, HIGHLAND HILLS PHAR-

MACY, INC., ECONODOSE SYSTEMS, INC. d/b/a MEDICAL

CENTER PHARMACY, GUSTAVE HNCIR, d/b/a TURNERS

PHARMACISTS, PHYSICIAN & SURGEONS PHARMACY, INC.,

CARLOS DIAZ d/b/a VALLEY VIEW PHARMACY, ALFRED

SANGALLI, d/b/a STAR DRUG STORE, BLANCO PHARMACY,

INC., BLANCO SOUTHSIDE PHARMACY, INC., DAN PARADA

d/b/a DAN’S PHARMACY, RopoLFo L. Davia, INC.

d/b/a DAVILA PHARMACY, DELLMAR PHARMACIES, INC.

d/b/a DELLMAR PHARMACY #4, RoNnG, INC. d/b/a

ECONOMY PHARMACY #1, ZARZAMORA PHARMACY, INC.

and WHITE CROSS PROFESSIONAL PHARMACY, INC. d/b/a

WHITE Cross #1 and d/b/a WHITE Cross #4

V.

Group LIFE AND HEALTH INSURANCE COMPANY a/k/a

BLUE SHIELD and/or BLUE CrRoss-BLUE SHIELD OF

TEXAS, WALGREEN TEXAS COMPANY, SOMMERS DRUG

STORE, RIEGER-MEDI-SAVE, INC. d/b/a GIBSONS PHAR-

MACY

2a

Complaint

ORIGINAL COMPLAINT

TO SAID HONORABLE COURT:

inti i i i i dants for the

Plaintiffs bring this action against defen

amount of damages suffered and to be suffered by oe

due to the defendants’ violation of the anti-trust laws

the United States and the State of Texas and allege as

follows:

i i i- t Act

This action arises under the Sherman Anti Trus

of July 2, 1890, 15 U.S.C.A. Sects. 1-7, and rer

Clayton Anti-Trust Act of October 15, 1914, 15 U.S.C.A.

section 12 et seq.

II

1. The plaintiff, ROYAL DRUG COMPANY, INC.,

d/b/a Royal Pharmacy of Castle Hills and Disco Pre-

scription Pharmacy, is a corporation organized and exist-

ing under the laws of the State of Texas, with its prin-

cipal place of business in San Antonio, Bexar County,

Texas.

2. The plaintiff, BLAUSER’S PHARMACY, INC., is

a corporation organized and existing under the laws of

the State of Texas, with its principal place of business

in San Antonio, Bexar County, Texas.

3. The plaintiff, PARKERS PHARMACY, INC., is a

corporation organized and existing under the laws of the

State of Texas, with its principal place of business in

San Antonio, Bexar County, Texas.

4. The plaintiff, CHARLES GRIFFIN d/b/a Dellview

Drug Store, is a resident of San Antonio, Bexar County,

Texas.

a

Os 6 as os ee Pee vn -

3a

Complaint

5. The plaintiff, JAMES POLLOCK d/b/a Pollock’s

Pharmacy, is a resident of San Antonio, Bexar County,

Texas.

6. The plaintiff, THOMAS J. PARMA d/b/a Parma’s

Pharmacy, is a resident of San Antonio, Bexar County,

Texas.

7. The plaintiff, CRAIG BELL d/b/a Bell Pharmacy,

is a resident of San Antonio, Bexar County, Texas.

8. The plaintiff, GEORGE STONE d/b/a Olmos Phar-

macy, is a resident of San Antonio, Bexar County, Texas.

9. The plaintiff, ALAMO HEIGHTS PHARMACY,

INC., is a corporation organized and existing under the

laws of the State of Texas, with its principal place of

business in San Antonio, Bexar County, Texas.

10. The plaintiff, PATTS DRUG, INC. d/b/a Patt’s

Drug Store No. 1, is a corporation organized and existing

under the laws of the State of Texas, with its principal

place of business in San Antonio, Bexar County, Texas.

11. The plaintiff, BAYLOR PARSONS d/b/a Parsons

Pharmacy, is a resident of San Antonio, Bexar County,

Texas.

12. The plaintiff, HIGHLAND HILLS PHARMACY,

INC., is a corporation organized and existing under the

laws of the State of Texas, with its principal place of

business in San Antonio, Bexar County, Texas.

13. The plaintiff, ECONODOSE SYSTEMS, INC.

d/b/a Medical Center Pharmacy, is a corporation organ-

ized and existing under the laws of the State of Texas,

with its principal place of business in San Antonio, Bexar

County, Texas.

14. The plaintiff, GUSTAVE HNCIR d/b/a Turners

Pharmacists, is a resident of San Antonio, Bexar County,

Texas.

4a

Complaint

15. The plaintiff, PHYSICIAN & SURGEONS PHAR-

MACY, INC., is a corporation organized and existing

under the laws of the State of Texas, with its principal

place of business in San Antonio, Bexar County, Texas.

16. The plaintiff, CARLOS DIAZ d/b/a Valley View

Pharmacy, is a resident of San Antonio, Bexar County,

Texas.

17. The plaintiff, ALFRED SANGALLI d/b/a Star

Drug Store is a resident of San Antonio, Bexar County,

Texas.

18. The plaintiff, BLANCO PHARMACY, INC., is a

corporation organized and existing under the laws of the

State of Texas, with its principal place of business in San

Antonio, Bexar County, Texas.

19. “he plaintiff, BLANCO SOUTHSIDE PHAR-

MACY, INC., is a corporation, organized and existing

under the laws of the State of Texas, with its principal

place of business in San Antonio, Bexar County, Texas.

20. The plaintiff, DAN PARADA d/b/a Dan’s Phar-

macy, is a resident of San Antonio, Bexar County, Texas.

21. The plaintiff, RODOLFO L. DAVILA, INC. d/b/a

Davila Pharmacy, is a corporation organized and existing

under the laws of the State of Texas, with its principal

place of business in San Antonio, Bexar County, Texas.

22. The plaintiff, DELLMAR PHARMACIES, INC.

d/b/a Dellmar Pharmacy #4, is a corporation organized

and existing under the laws of the State of Texas, with

its principal place of business in San Antoniv Bexar

County, Texas.

28. The plainiiff, RONG, INC. d/b/a Economy Phar-

macy #1, is a corporation organized and existing under

the laws of the State of Texas, with its principal place

of business in San Antonio, Bexar County, Texas.

=

5a

Complaint

24. The plaintiff, ZARZARMORA PHARMACY, INC.,

is a corporation organized and existing under the laws of

the State of Texas, with its principal i i

place of busine

San Antonio, Bexar County, Texas. Pa

25. The plaintiff, WHITE CROSS PROFESSI

PHARMACY, INC. d/b/a White Cross #1 and Wate

Cross #4, is a corporation organized and existing under

the laws of the State of Texas, with its principal place

of business in San Antonio, Bexar County, Texas.

All of Plaintiffs own and operate one or more phar-

macies in San Antonio, Bexar County, Texas, and are in

the business of compounding and dispensin ~

drugs for public sale. pensing prescription

III

1. Defendant GROUP LIFE AND HEALTH IN

SUR-

ANCE COMPANY, a/k/a BLUE SHIELD and/or BLUE

CROSS-BLUE SHIELD OF TEXAS, may be served by

serving the Insurance Commissioner of the State of Texas

in Austin, Texas. Such defendant is hereinafter referred

to as “BLUE CROSS-BLUE SHIELD.”

2. Defendant WALGREEN TEXAS COMPAN

Ya

WALGREEN DRUG STORES, may be served by a

its Agent for Service, Mary Wilson, 8110 Kempwood,

Houston, Texas. Such defendant is herei

weary Ph ont ereinafter referred

3. Defendant SOMMERS DRUG STORES CO

. a/k

SOMMERS REXALL DRUG STORES, CO., ae te

served by serving its Agent for Service, Walter M. Corri-

gan, 3130 E. Houston Street, San Antonio, Texas. Such

defendant is hereinafter referred to as “SOMMERS.”

6a

Complaint

4. Defendant RIEGER-MEDI-SAVE, INC., d/b/a

GIBSONS PHARMACY, may be served by serving the

Secretary of State of the State of Texas. Such defendant

is hereinafter referred to as “GIBSONS.”

IV

1. The defendant, WALGREEN TEXAS CO., is a

corporation organized and existing under the laws of the

State of Texas, and operates numerous drug stores en-

gaged in the business of compounding and dispensing

prescription drugs for public sale under the name of

WALGREEN DRUG STORES and in various GLOBE

DISCOUNT STORES.

2. The defendant, REIGER-MEDI-SAVE, INC., is a

corporation organized and existing under the laws of the

State of Texas, which operates numerous drug stores en-

gaged in the business of compounding and dispensing

prescription drugs for public sale in GIBSON DISCOUNT

STORES.

3. The defendant, SOMMERS DRUG STORES CO.,

is a corporation organized and existing under the laws of

the State of Texas, which operates numerous drug stores

engaged in the business of compounding and dispensing

prescription drugs for public sale under its own name.

Vv

1. All of said defendants, other than BLUE CROSS-

BLUE SHIELD, are in competition with plaintiffs in con-

nection with the compounding and dispensing of prescrip-

tion drugs for public sale in San Antonio and Bexar

County, Texas.

2. Defendant GROUP LIFE AND HEALTH INSUR-

ANCE COMPANY a/k/a Blue Shield and/or Blue Cross-

7a

Complaint

Blue Shield of Texas, is one of the largest, if not the

largest, company engaged in the business of selling in-

surance coverage providing for payment of part of the

cost to its policyholders of drugs and pharmaceutical

products, all as more fully set out below.

VI

COUNT ONE

1. Defendants have and are engaged in an agreement,

combination and conspiracy to fix the retail price of drugs

and pharmaceuticals. Such agreement, combination and

conspiracy has been carried out by their entering into an

Agreement between defendants and BLUE CROSS-BLUE

SHIELD whereby said parties agree upon and fix prices

and charges to be charged to the generai public for the

compounding and dispensing of prescription drugs. Spe-

cifically, defendant BLUE CROSS-BLUE SHIELD and

each of the other defendants have entered into a Partici-

pating Drug Pharmacy Agreement, hereinafter called

“Agreement”, Said Agreement specifies the amount to be

received by each pharmacy for the sale of drugs and

other pharmaceuticals dispensed by Defendants to BLUE

CROSS-BLUE SHIELD policyholders who have purchased

coverage under the BLUE CROSS-BLUE SHIELD pre-

paid prescription policies. Under such Agreement Blue

Cross-Blue Shield agrees to pay for each drug provided

an amount equal to the total of the acquisition cost of

such drug as defined therein plus a fixed dispensing fee

of $2.00 less the applicable policy deductibles.

2. Basically pharmacies which join in such Agreement

are reimbursed by BLUE CROSS-BLUE SHIELD for

100% of the acquisition cost, plus the $2.00 fee which is

paid by the customer. Pharmacies which have not signed

said Agreement are only reimbursed for 75% of the ac-

8a

Complaint

quisition cost thereof in addition to the $2.00 fee paid

by their customers. Such contract and performance under

it result in acquisitive, pernicious and blatant economic

coercion to foree BLUE CROSS-BLUE SHIELD policy[-]

holders to deal only with pharmacies which have entered

into such Agreement and become part of the unlawful

combination, agreement and conspiracy with BLUE

CROSS-BLUE SHIELD. Failure to deal with such phar-

macists results in such policyholder and pharmacy cus-

tomer not receiving full reimbursement for the cost of

the particular drugs and prescriptions covered by their

BLUE CROSS-BLUE SHIELD policy. Defendants and

all other pharmacies which have executed such Agreement

have entered into a combination[,] conspiracy and agree-

ment to fix prices for the sale of drugs and pharmaceu-

ticals, which is a per se violation of the Federal Anti-

Trust Laws, specifically Section 1 of the Sherman Act,

and are engaged in horizontal price fixing with respect

to dispensing of drugs and pharmaceuticals.

COUNT TWO

1. The foregoing allegations of this complaint are in-

corporated in this Count Two.

2. The foregoing activities of defendants constitute a

group boycott in violation of the Federal Anti-Trust Laws

in that the purpose and necessary effect of said combina-

tion, agreement and conspiracy is to cause persons holding

prepaid prescription coverage under the applicable BLUE

CROSS-BLUE SHIELD policies to not deal with plain-

tiffs and other pharmacies similarly situated, but to deal

only with pharmacies which are members of, have partici-

pated and joined in such unlawful agreement, combina-

tion and conspiracy in violation of the Sherman Act.

9a

Complaint

COUNT THREE

1. The allegations of Count One above are hereby in-

corporated by reference.

2. The effect of the combination, agreement and con-

spiracy is to allocate territories to pharmacists who have

signed the Agreement and impose territorial restrictions,

all of which are per se violations of the Sherman Act.

COUNT FOUR

1. The allegations of Count One are incorporated here-

in by reference.

2. The actions alleged constitute violations of the Fed-

eral Anti-Trust Law set out above and the Texas Busi-

ness and Commerce Code and defendants, and each of

them, should be enjoined on final hearing from:

A. From agreeing on and fixing prices which in-

dividual pharmacists may charge,

B. From engaging in group boycotts,

C. From continuing to utilize and observe the pro-

visions of the Participating Drug Pharmacy Agree-

ment,

D. From requiring pharmacists to enter into con-

tracts which violate the Federal and State Anti-

Trust Laws,

E. From entering into any contracts the effect of

which is to maintain or set retail prices between

such pharmacies and their customers, or

F. Issuing any contract which distinguishes inso-

far as reimbursement for the purchase price of drugs

and other pharmaceuticals between pharmacies which

10a

Complaint

are part of the illegal agreement, combination and

conspiracy, and those which are not part thereof.

G. From agreeing to allocate territories.

COUNT FIVE

1. The foregoing allegations in Count One of this Com-

plaint are incorporated herein by reference.

2. The court has jurisdiction under the causes of ac-

tion alleged in this Count under the doctrine of pendent

jurisdiction.

3. All of such acts and conduct alleged above violate

the Texas Business and Commerce Code, Sections 15.01

et seq., commonly known as the Texas Anti-Trust Laws.

COUNT SIX

Plaintiffs’ damages and damages to other pharmacies

similarly situated who have likewise been injured by de-

fendants’ unlawful acts are substantial and are in all

probability in millions of dollars, the exact extent of

which cannot be determined until Plaintiffs’ discovery

from defendants is completed and the full extent of such

agreement, combination and conspiracy is determined.

COUNT SEVEN

Plaintiffs are entitled to recover reasonable attorneys’

fees from defendants in the amount of not less than

$50,000.

WHEREFORE each of plaintiffs pray that they have

judgment jointly and severally against defendants for

treble their damages, for reasonable attorneys’ fees, for

costs of suit and for injunctive relief as above alleged,

lla

Complaint

and for such other and further relief to which Plaintiffs

are entitled. No immediate emergency action is sought

at this time.

/3/ Joel H. Pullen

JOEL H. PULLEN of

TINSMAN & Houser, INC.

1900 NBC Building

San Antonio, Texas 78205

Attorneys for Plaintiff

Now come Plaintiffs and demand a jury.

/s8/ Joel H. Pullen

JOEL H. PULLEN

12a

ANSWER OF DEFENDANT RIEGER/MEDI-SAVE

PHARMACIES, INC., JUNE 20, 1975

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

ORIGINAL ANSWER OF DEFENDANT,

RIEGER/MEDI-SAVE PHARMACIES, INC.

Rieger/Medi-Save Pharmacies, Inc., incorrectly desig-

nated as Rieger-Medi-Save, Inc., answers plaintiff’s Orig-

inal Complaint as follows:

FIRST DEFENSE

The Complaint fails to state a claim against Rieger/

Medi-Save Pharmacies, Inc. upon which relief may be

granted.

SECOND DEFENSE

This Court lacks jurisdiction over the matters alleged

in the Complaint because of the lack of any requisite

effect on commerce.

THIRD DEFENSE

The Complaint fails to state a cause of action against

this defendant because Group Life and Health Insurance

Company, with whom it is alleged to have conspired, com-

bined and agreed, is not a proper party nor capable of

such actions under the Anti-Trust Laws of the United

States, because of exemption under the McCarran-

Ferguson Act (15 USC § 1011, et seq.) .

13a

Answer of Defendant Rieger/Medi-Save Pharmacies, Inc.

FOURTH DEFENSE

The Complaint fails to state a proper cause of action

against defendant in its pendant allegations, based on

the Texas Anti-Trust Laws, because such an action is

not properly maintainable in absence of a proper cause

of action under federal law.

FIFTH DEFENSE

The Complaint should be dismissed as to this defend-

ant because the service of process upon it was improper

and insufficient.

SIXTH DEFENSE

To the extent the allegations of Plaintiffs’ Original

Complaint are directed to Rieger/Medi-Save Pharmacies,

Inc., it answers paragraph by paragraph, as follows:

I

The allegations of Paragraph I are denied, e i

tf , except it

is admitted that plaintiffs’ do purport to bring this pron

under the statutes indicated.

II

This defendant is without knowledge or information

sufficient to form a belief as to the truth of the allega-

tions of Paragraph II, suo-paragraphs 1.-25.

III

Defendant is without knowledge sufficient to form

a belief as to the truth of the allegations of Paragraph

III, sub-paragraphs 1.-3. The allegations of Paragraph

III, sub-paragraph 4. are denied.

14a

Answer of Defendant Rieger/Medi-Save Pharmacies, Inc.

IV

It is admitted that the defendant, Rieger/Medi-Save

Pharmacies, Inc., operates certain drug stores engaged in

the business of compounding and dispensing prescription

drugs for public sale in certain Gibson Discount stores.

The balance of the allegations of Paragraph IV, sub-

paragraph 2. are denied.

This defendant is without knowledge or information

sufficient to form a belief as to the truth of the allegations

of Paragraph IV, sub-paragraphs 1. and 3.

V

This defendant admits that it is engaged in competition

with plaintiffs in the compounding and dispensing of

prescription drugs for publie sale in certain areas of

San Antonio and Bexar County, Texas. This defendant

is without information sufficient to form a belief as to

the truth of the balance of the allegations of Paragraph

V, sub-paragraphs 1. and 2.

VI

COUNT ONE

This defendant admits that it entered into an agreement

by and between itself and Group Life and Health In-

surance Company, subject to terms provided therein.

The balance of the allegations of Paragraph VI, sub-

paragraphs 1. and 2. are denied.

COUNT TWO

This defendant adopts, in response to the allegations of

COUNT TWO, sub-paragraph 1., its respective answers

to Paragraphs I through Paragraph VI, COUNT ONE,

sub-paragraph 2.

ee —

15a

Answer of Defendant Rieger/Medi-Save Pharmacies, Inc.

The allegations of COUNT TWO, sub-paragraph 2.,

are denied.

COUNT THREE

This defendant adopts, in response to the allegations of

COUNT THREE, sub-paragraph 1., its answer to the al-

legations of COUNT ONE, sub-paragraphs 1. and 2. of

the Complaint.

The allegations of COUNT THREE, sub-paragraph

2. are denied.

COUNT FOUR

This defendant adopts, in response to the allegations

contained in COUNT FOUR, sub-paragraph 1., its an-

swer to COUNT ONE, sub-paragraphs 1. and 2.

The allegations of COUNT FOUR, sub-paragraph 2.,

are denied.

COUNT FIVE

This defendant adopts, in response to COUNT FIVE,

sub-paragraph 1., its answer to COUNT ONE, sub-

paragraphs 1. and 2.

The allegations of COUNT FIVE, sub-

and 8. are denied. ee

COUNT SIX

The allegations of COUNT SIX are denied.

COUNT SEVEN

The allegations of COUNT SEVEN are denied.

This defendant denies that plaintiffs are entitled to any

of the relief demanded or prayed for, and further denies

16a

Answer of Defendant Rieger/Medi-Save Pharmacies, Ine.

that it has violated any of the provisions of any acts

upon which this action is based.

OTHER PARTIES

To the extent that the allegations of the Complaint are

directed to persons or corporations other than Rieger/

Medi-Save Pharmacies, Inc., this defendant is without

knowledge or information sufficient to form a belief as

to the truth of such allegations.

Except as expressly admitted herein, all the allegations

of this Complaint relating to Rieger/Medi-Save Pharma-

cies, Inc. are denied.

WHEREFORE, Rieger/Medi-Save Pharmacies, Inc.

prays that plaintiffs take nothing by their suit, that it

recover its costs and for such other and further relief

to which it may be justly entitled.

Respectfully submitted,

CHARLES R. SHADDOX

By /s/ C. R. Shaddox

2000 Frost Bank Tower

San Antonio, Texas 78205

Attorneys for Defendant,

Of Counsel: Rieger/Medi-Save

Groce, LOCKE & HEBDON Pharmacies, Inc.

2000 Frost Bank Tower

San Antonio, Texas 78205

Defendant, RIEGER/MEDI-SSAVE PHARMACIES,

INC., hereby demands a jury.

/s/ C. R. Shaddox

CHARLES R. SHADDOX

[Certificate of Service Omitted in Printing]

17a

ANSWER OF DEFENDANT THE SOMMERS DRUG

STORES COMPANY, JUNE 23, 1975

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

ANSWER OF DEFENDANT

THE SOMMERS DRUG STORES COMPANY

THE SOMMERS DRUG STORES COMPANY (“Som-

mers”), one of the Defendants herein, files this, its An-

swer to Plaintiffs’ Original Complaint, and would show:

First Defense

The Original Complaint fails to state a claim against

Sommers upon which relief can be granted.

Second Defense

The Court lacks jurisdiction over the subject matter

because:

A. No cause of action has been shown to exist under

the acts of Congress regulating commerce or protecting

trade and commerce against restraints and monopolies ;

B. The lack of any requisite effect on interstate com-

merce;

C. All of the parties are residents of the State of

Texas and no diversity jurisdiction exists; and,

D. In the absence of jurisdiction under federal law

there is no pendent jurisdiction.

Third Defense

The Complaint fails to state a claim upon which relief

can be granted against Sommers under the antitrust laws

——s-

18a

Answer of Defendant The Sommers Drug Stores Co.

ited States because the Defendant GROUP

ape AND HEALTH INSURANCE COMPANY ( =

Cross”) is engaged in the “business of insurance } =

all matters alleged by Plaintiffs herein arise out : 4

“business of insurance”, which is regulated by the Insu

ance Commissioner of the State of Texas and gy =

from the provisions of the Sherman and oe “—

pursuant to the McCarran-Ferguson Act (1 S.C.

§ 1011, et seq.).

Fourth Defense

i intiffs’ Original

Sommers answers the allegations of Plain

Complaint in paragraphs numbered to correspond with

those of the Original Complaint, as follows:

I.

Sommers denies the allegations centained in Part I of

the Complaint.

Il.

i i in Part Il

As to each and every allegation contained in

of the Complaint, Sommers denies that it has knowledge

or information thereof sufficient to form a belief in con-

nection therewith.

III.

Sommers admits as alleged in Part It, Paragraph No.

3 of the Complaint that its agent for service is Walter N.

Corrigan, 3130 E. Houston Street, San Antonio, ——

As to each and every other allegation contained in sai

Part III of the Complaint, Sommers denies that it has

knowledge or information sufficient to form a belief in

connection therewith.

19a

Answer of Defendant The Sommers Drug Stores Co.

IV.

As to Part IV, Paragraph No. 3 of the Complaint,

Sommers admits that it is a corporation duly authorized

to do business in Texas and whose principal place of

business is Texas, but would show that it is organized

under the laws of the State of Maryland, operating nu-

merous drug stores (in Texas only) engaged in the busi-

ness of compounding and dispensing prescription drugs

for public sale under its own name. As to each and every

other allegation contained in said Part IV, Sommers does

not have knowledge or information sufficient to form a

belief in connection therewith.

V.

As to each and every allegation contained in Part V

of the Complaint, Sommers denies that it has knowledge

or information thereof sufficient to form a belief in con-

nection therewith, except that Sommers admits that it

is in competition with other drug stores in San Antonio

and Bexar County, Texas.

VI.

COUNT ONE

Sommers admits that it entered into a Participating

Drug Pharmacy Agreement on the terms provided there-

in, solely between itself and Blue Shield. As to each and

every other allegation contained in Part VI, Count One

of the Complaint, Sommers denies the allegations as to

itself, and denies that it has any knowledge or informa-

tion thereof sufficient to form a belief in connection with

allegations made as to other Defendants referred to there-

in,

20a

Answer of Defendant The Sommers Drug Stores Co.

COUNT TWO

As to the allegations contained in Count Two, Para-

graph No. 1, Sommers has previously responded to the

incorporated “foregoing allegations” of the Complaint,

which answers are here repeated.

As to the allegations contained in Count Two, Para-

graph No. 2, Sommers denies the allegations.

COUNT THREE

As to the allegations contained in Count Three, Para-

graph No. 1, Sommers has previously responded to the

incorporated Count One of the Complaint, which answers

’ are here repeated.

As to the allegations contained in Count Three, Para-

graph No. 2, Sommers denies the allegations.

COUNT FOUR

As to the allegations contained in Count Four, Para-

graph No. 1, Sommers has previously responded to the

incorporated Count One of the Complaint which answers

are here repeated.

As to each and every allegation contained in Count

Four, Paragraph No. 2 of the complaint, Sommers de-

nies the allegations.

COUNT FIVE

As to the allegations contained in Count Five, Para-

graph No. 1, Sommers has previously responded to the

incorporated Count One of the Complaint which answers

are here repeated.

2la

Answer of Defendant The Sommers Drug Stores Co.

As to each and every allegation contained in Count Five,

Paragraphs ;

the allegations and 3 of the Complaint, Sommers denies

COUNT SIX

As to Count Six, Sommers denies the allegations.

COUNT SEVEN

As to Count Seven, Sommers denies the allegations,

WHEREFORE Defendant, THE §

. * OMMERS DRUG

STORES COMPANY, prays judgment that the Plaintiffs

’

and that Defendant recover its ¢

a osts ;

to which it may be justly entitled. aoe Sater eels

Respectfully submitted,

GRESHAM, Davis, GREGORY,

WortTuy & Moore

1800 Frost Bank Tower

San Antonio, Texas 78205

By /s/ Richard B. Moore

Attorneys for Defendant,

The Sommers Drug Stores

Company

22a

Answer of Defendant The Sommers Drug Stores Co.

DEFENDANT SOMMERS’ DEMAND FOR JURY

COMES NOW the Defendant, THE SOMMERS DRUG

STORES COMPANY, and as is provided by Rule 38 of

the Federal Rules of Civil Procedure in United States

District Courts (28 U.S.C.A.), requests trial by jury in

the above numbered and styled cause.

Dated June 23, 1975.

GRESHAM, DAVIS, GREGORY,

WortTHyY & MOORE

— 1800 Frost Bank Tower

San Antonio, Texas 78205

Attorneys for Defendant,

The Sommers Drug Stores

Company

By /s/ Richard B. Moore

RICHARD B. MOORE

[Certificate of Service Omitted in Printing]

ANSWER OF DEFENDANT GROUP LIFE AND HEALTH

INSURANCE COMPANY, JUNE 22, 1975

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

ANSWER OF DEFENDANT GROUP LIFE

AND HEALTH INSURANCE COMPANY

GROUP LIFE AND HEALTH INSURANCE COM-

PANY, also known as Blue Shield of Texas (“Blue

Shield”) (incorrectly designated as Blue Shield and/or

Blue Cross-Blue Shield of Texas), one of the Defendants

herein, answers Plaintiffs’ Original Complaint in this

action as follows:

FIRST DEFENSE

The Original Complaint should be dismissed pursuant to

Rules 12(b) (6) and 56, Federal Rules of Civil Proce-

dure, because it fails to state a claim against Blue Shield

for which relief can be granted.

SECOND DEFENSE

The Original Complaint should be dismissed pursuant to

Rules 12(b) (1) and 56, Federal Rules of Civil Procedure,

because the matters alleged therein do not have the

requisite effect on interstate commerce. Therefore, the

Court lacks subject matter jurisdiction of this action.

THIRD DEFENSE

The Original Complaint should be dismissed pursuant to

Rules 12(b) (1), 12(b) (6) and 56, Federal Rules of Civil

Procedure, because there is no diversity of citizenship

24a

Answer of Defendant Group Life and Health Ins. Co.

under 28 U.S.C. § 1332. Jurisdiction, if any, is under

the antitrust laws of the United States. As shown in

Blue Shield’s Second Defense above, no federal question

arises under the antitrust laws. Therefore, Plaintiffs

have failed to state a proper cause of action and the Court

does not have subject matter jurisdiction by reason of

diversity of citizenship.

FOURTH DEFENSE

The Original Complaint should be dismissed pursuant

to Rules 12(b) (1), 12(b) (6) and 56, Federal Rules of

Civil Procedure, because in the absence of any cause of

action based upon federal law, as shown in Blue Shield’s

Second Defense and Third Defense, above, this Court may

not entertain Plaintiffs’ pendent claims based upon al-

leged violations of the Texas antitrust laws.

FIFTH DEFENSE

. The Original Complaint should be dismissed pursuant to

Rules 12(b) (6) and 56, Federal Rules of Civil Procedure,

because the same fails to state a cause of action against

Blue Shield. Blue Shield is engaged in the “business of

insurance”, and all matters alleged by Plaintiffs herein

arise out of the “business of insurance”, which “business”

is regulated by state law. Therefore, Blue Shield is ex-

empted from application of the Sherman and Clayton

Acts by the provisions of the McCarran-Ferguson Act (15

U.S.C. § 1011, et seq.).

SIXTH DEFENSE

The claims set forth in the Original Complaint are

barred in whole or in part by laches.

25a

Answer of Defendant Group Life and Health Ins. Co.

SEVENTH DEFENSE

Blue Shield answers the allegations of the Original

Complaint in paragraphs numbered to correspond with

those of the Original Complaint, as follows:

I,

Denied ; however, Blue Shield admits that proper causes

of action may arise under the statutes alleged.

Il.

1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 14, 15, 16, 17, 18,

19, 20, 21, 22, 23, 24 and 25. Blue Shield is without

knowledge or information sufficient to form a belief as

to the truth of the allegations.

Blue Shield is without knowledge or information suffi-

cient to form a belief as to the truth of the allegations

contained in the last (unnumbered) paragraph of para-

graph II of the Original Complaint.

Ill.

1. Blue Shield denies the first sentence. The second

sentence requires no admission or denial; however, this

Defendant states that it has been incorrectly designated as

“Blue Shield and/or Blue Cross-Blue Shield of Texas”.

2. Blue Shield is without knowledge or information suf-

ficient to form a belief as to the truth of the first sen-

tence. The second sentence requires no admission or denial.

3. Blue Shield is without knowledge or information

sufficient to form a belief as to the truth of the first

sentence. The second sentence requires no admission or

denial.

26a

Answer of Defendant Group Life and Health Ins. Co.

4. Blue Shield is without knowledge or information

sufficient to form a belief as to the truth of the first sen-

tence. The second sentence requires no admission or

denial.

IV.

1, 2 and 3. Blue Shield is without knowledge or infor-

mation sufficient to form a belief as to the truth of the

allegations.

V.

1. Blue Shield is without knowledge or information

sufficient to form a belief as to the truth of the allegations.

2. Blue Shield admits that it is one of the largest

companies engaged in the business of selling insurance

coverage in the State of Texas providing for payment

of part of the cost to its policyholders of prescription

drugs; however, denies the remainder of this paragraph.

VI.

COUNT ONE

1. Blue Shield denies the first, second, fourth and fifth

sentences. Blue Shield admits the third sentence and says

that the Agreement is a document which speaks for itself.

2. Blue Shield admits the first sentence and denies the

second, third, fourth and fifth sentences.

COUNT TWO

1. For each allegation incorporated by reference from

the Original Complaint, Blue Shield incorporates its an-

swering paragraph with the same force and effect as if

the answer were set forth here in full.

2. Denied.

27a

Answer of Defendant Group Life and Health Ins. Co.

COUNT THREE

1. For each allegation incorporated by reference from

Count One of the Criginal Complaint, Blue Shield incor-

porates its answering paragraph with the same force and

effect as if the answer were set forth here in full.

2. Denied.

COUNT FOUR

1. For each allegation incorporated by reference from

Count One of the Original Complaint, Blue Shield incor-

porates its answering paragraph with the same force and

effect as if the answer were set forth here in full.

2. Denied.

COUNT FIVE

1. For each allegation incorporated by reference from

Count One of the Original Complaint, Blue Shield in-

corporates its answering paragraph with the same force

and effect as if the answer were set forth here in full.

2. Denied.

3. Denied.

COUNT SIX

Denied.

COUNT SEVEN

Blue Shield denies the allegations of Count Seven and

says that Plaintiffs are not entitled, in law, or in fact, to

any recovery or relief from Blue Shield.

WHEREFORE, Blue Shield prays that Plaintiffs take

nothing by their suit herein, that it recover its costs and

28a

Answer of Defendant Group Life and Health Ins. Co.

have such other and further relief to which it may be

justly entitled.

Respectfully submitted,

Cox, SMITH, SMITH, HALE &

GUENTHER INCORPORATED

500 National Bank of

Commerce Building

San Antonio, Texas 78205

512/224-4281

/s/ J. Burleson Smith

J. BURLESON SMITH

[Certificate of Service Omitted in Printing]

ANSWER OF DEFENDANT WALGREEN TEXAS CO.,

JUNE 27, 1975

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

ANSWER OF DEFENDANT WALGREEN TEXAS CO.

WALGREEN TEXAS CO. (“WALGREEN”), one of

the Defendants herein, files this, its Original Answer to

Plaintiffs’ Complaint:

FIRST DEFENSE

Plaintiffs’ Original Complaint should be dismissed for

the reason that it fails to state a claim for which relief

can be granted under the Anti-Trust Laws of the United

States in that the matters alleged by Plaintiffs did not

occur in or substantially affect interstate commerce.

SECOND DEFENSE

Plaintiffs’ Complaint should be dismissed for the rea-

son that, since no federal question arises under the Anti-

Trust Laws and there is no diversity of citizenship be-

tween Plaintiffs and Defendants, this Court does not have

jurisdiction.

THIRD DEFENSE

Plaintiffs’ Original Complaint should be dismissed for

the reason that it fails to state a cause of action against

this Defendant because the Defendant GROUP LIFE

AND HEALTH INSURANCE COMPANY, with whom

it is alleged to have conspired, is engaged in the “busi-

ness of insurance” and which “business” is regulated by

30a

Answer of Defendant Walgreen Texas Co.

the Insurance Commissioner of the State of Texas, and,

therefore, under the Anti-Trust Laws of the United States,

any of such actions are exempt under the McCarran-

Ferguson Act (15 U.S.C., Sec. 1011, et seq.).

FOURTH DEFENSE

Plaintiffs’ Complaint should be dismissed because, in the

absence of any cause of action based upon federal law,

this Court has no pendent jurisdiction to entertain any

claim based upon an alleged violation of the Texas Anti-

Trust Laws.

FIFTH DEFENSE

WALGREEN answers the allegations of Plaintiffs’

Complaint as follows:

I

This Defendant denies the allegations contained in Para-

graph I of the Complaint that Plaintiffs have any cause

of action against it, but would admit that Plaintiffs pur-

port to bring such action under the Statutes as alleged.

II

This Defendant does not have sufficient information as

to the allegations with respect to the Plaintiffs as contained

in Paragraph II of the Complaint, therefore, can neither

admit nor dery such allegations.

Ill

This Defendant admits the allegations contained in

Paragraph III of the Complaint.

31a

Answer of Defendant Walgreen Texas Co.

IV

This Defendant admits the allegations contained in

Sub-Paragraph 1 of Paragraph IV of the Complaint, and,

as to Sub-Paragraphs 2 and 3, this Defendant does not

have sufficient information regarding the correct cor-

porate names or incorporation of the other Defendants,

therefore, can neither admit nor deny such allegations,

but admits such Defendants do operate drug stores en-

gaged in compounding and dispensing of prescription

drugs.

V

This Defendant admits the allegations contained in

Paragraph V of the Complaint.

VI

COUNT ONE

This Defendant admits it has entered into a Partici-

pating Drug Pharmacy Agreement with the Defendant

GROUP LIFE AND HEALTH INSURANCE COMPANY

as alleged in Paragraph VI, Count One of the Complaint,

however, denies that the operation under such Agreement,

as set out by its terms and conditions, is any conspiracy

or combination to fix retail prices of drugs and pharma-

ceuticals and further denies that this Defendant has com-

mitted any act which is in violation of the Federal Anti-

Trust Laws.

COUNT TWO

This Defendant hereby incorporates by reference its

answers to Plaintiffs’ Complaint, as incorporated in Sub-

Paragraph 1 of Count Two of the Complaini.

32a

Answer of Defendant Walgreen Texas Co.

This Defendant denies the allegations contained in Sub-

Paragraph 2 of Count Two of Plaintiffs’ Complaint.

COUNT THREE

This Defendant hereby incorporates by reference its

answers to the allegations of Count One, which are in-

corporated by reference in Sub-Paragraph 1 of Count

Three of the Complaint.

This Defendant denies the allegations contained in Sub-

Paragraph 2 of Count Three of the Complaint.

COUNT FOUR

This Defendant hereby incorporates by reference its

answers to the allegations of Count One, which are in-

corporated by reference in Sub-Paragraph 1 of Count Four

of the Complaint.

This Defendant denies the allegations contained in Sub-

Paragraph 2 of Count Four of the Complaint.

COUNT FIVE

This Defendant hereby incorporates by reference its

answers to the allegations of Count One, which are in-

corporated by reference in Sub-Paragraph 1 of Count Five

of the Complaint.

This Defendant denies the allegations contained in Sub-

Paragraphs 2 and 3 of Count Five of the Complaint.

COUNT SIX

This Defendant denies the allegations contained under

Count Six of the complaint.

83a

Answer of Defendant Walgreen Texas Co.

COUNT SEVEN

This Defendant denies the allegations contained in

Count Seven of the Complaint.

Defendant WALGREEN TEXAS CO. prays that Plain-

tiffs recover nothing of and from this Defendant, and

that this suit be dismissed at the cost of Plaintiffs.

Respectfully submitted,

/s/ Wm. C. Church, Jr.

Wo. C. CHURCH, JR.

8700 Tesoro Drive, Suite 120

Post Office Box 17409

San Antonio, Texas 78217

(512) 828-8261

Attorney jor Defendant

Walgreen Texas Co.

Of Counsel:

KAMPMANN, CHURCH & BURNS

8700 Tesoro Drive, Suite 120

San Antonio, Texas 78217

84a

JOINT MOTION TO SUSPEND DISCOVERY AND

TO MODIFY ORDER PRELIMINARY TO

PRE-TRIAL CONFERENCE, JANUARY 21, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

JOINT MOTION TO SUSPEND DISCOVERY AND TO

MODIFY ORDER PRELIMINARY TO PRE-TRIAL

CONFERENCE

Plaintiffs and Defendants, Group Life and Health In-

surance Company, also known as Blue Shield of Texas,

Walgreen Texas Co., The Sommers Drug Stores Company

and Rieger/Medi-Save Pharmacies, Inc., jointly move the

Court for an order suspending discovery in this action and

modifying the Court’s Order Preliminary to Pre-Trial

Conference entered herein on August 7, 1975.

In support of this Motion, Plaintiffs and Defendants

would show that:

1. Plaintiffs have filed this action against Defendants

alleging violations of the Federal antitrust laws and the

antitrust laws of the State of Texas.

2. In their respective answers fiied herein, Defendants

have each asserted numerous defenses to Plaintiffs’ allega-

tions, including among others, the defense of the antitrust

exemption provided under the McCarran-Ferguson Act

(15 U.S.C. § 1011, et seq.), which defenses, if determined

to be valid, will be dispositive of this action.

8. Plaintiffs and Defendants have completed substan-

tial discovery through production of documents and depo-

sitions.

—————

35a

Joint Motion to Suspend Discovery

4. Extensive additional discovery is planned (notices

for 20 proposed depositions have been filed) and will be

necessary to properly prepare for the trial of this case.

5. Plaintiffs and Defendants, by and through their

respective attorneys of record, have agreed that in order

to prevent the unnecessary expenditure of money, time

and effort of the parties and time and effort of the Court,

the validity of the McCarran-Ferguson defenses, as as-

serted by Defendants, should be presented to the Court

for a determination prior to continuing with costly and

time consuming discovery procedures.

WHEREFORE, Plaintiffs and Defendants jointly move

the Court to enter an Order as follows:

A. Suspending all discovery in this action in order that

Defendants may present their McCarran-Ferguson Act

defenses to the Court for determination.

B. On or before thirty (30) days after the entry of an

Order Suspending Discovery, Defendants shall file appro-

priate motions to dismiss based upon their defenses as-

serted under the McCarran-Ferguson Act, together with

a supporting materials and memorandum

riefs,

C. On or before twenty (20) days after the motions

and briefs of Defendants are filed, Plaintiffs shall file

their responses and briefs, together with any necessary

supporting materials.

D. On or before ten (10) days after the responses

and briefs of Plaintiffs are filed, Defendants shall file

any replies that they deem necessary, together with any

necessary supplemental supporting materials. All dis-

covery shall be suspended pending a final determination

of the validity of the McCarran-Ferguson Act defenses

asserted by Defendants. _

36a

Joint Motion to Suspend Discovery

E. If it is ultimately determined by the Court or by

an appellate court that the McCarran-Ferguson Act de-

fenses of Defendants are not valid, the parties shall com-

plete discovery on the merits within ninety (90) days

after the date of such final determination.

F. A conference of attorneys will be held on or before

thirty (30) days after the completion of discovery.

G. Counsel for the respective parties will submit their

proposed agreed pre-trial orders within sixty (60) days

after the completion of discovery.

H. In the event counsel are unable to agree on a form

of a proposed agreed pre-trial order, then counsel for each

party is directed to submit his version of an appropriate

pre-trial order within ten (10) days after the expiration

of the date set forth in Paragraph G hereof.

Respectfully submitted,

TINSMAN & HOUusER, INC.

1900 National Bank of

Commerce Bldg.

San Antonio, Texas 78205

By: /s/ Joel H. Pullen

JOEL H. PULLEN

Attorneys for Plaintiffs

Cox, SMITH, SMITH, HALE

& GUENTHER INCORPORATED

500 National Bank of

Commerce Bldg.

San Antonio, Texas 78205

37a

Joint Motion to Suspend Discovery

By: /s/ Keith E. Kaiser

By: /8/

By: /s/

By: /s/

KEITH E. KAISER

Attorneys for Defendant

Group Life and Health

Insurance Company

GROCE, LOCKE & HEBDON

2000 Frost Bank Tower

San Antonio, Texas 78205

Charles R. Shaddox

CHARLES R. SHADDOX

Attorneys for Defendant

Rieger/Medi-Save

Pharmacies, Inc.

KAMPMANN, CHURCH &

BURNS

120 Tesoro Building

8700 Tesoro Drive

San Antonio, Texas 78217

William C. Church, Jr.

WILLIAM C. CHURCH, JR.

Attorneys for Defendant

Walgreen Texas Co.

GRESHAM, Davis, GREGORY,

WortTHY & Moore

1800 Frost Bank Tower

San Antonio, Texas 78205

Richard B. Moore

RICHARD B. Moore

Attorneys for Defendant

The Sommers Drug Stores

Company

38a

ORDER OF UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF TEXAS APPROVING

JOINT MOTION TO SUSPEND DISCOVERY AND

TO MODIFY ORDER PRELIMINARY TO PRE-TRIAL

CONFERENCE, JANUARY 23, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Civil Action No. SA-75-CA-131

RoYAL DruG COMPANY, INC. d/b/a/ ROYAL PHARMACY OF

CASTLE HILLS and DISCO PRESCRIPTION PHARMACY,

BLAUSER’S PHARMACY, INC., PARKERS PHARMACY, INC.,

CHARLES GRIFFIN d/b/a DELLVIEW DRUG STORE, JAMES

POLLOCK, d/b/a/ POLLOCK’S PHARMACY, THOMAS J.

PARMA, d/b/a PARMA’S PHARMACY, CRAIG BELL, d/b/a

BELL PHARMACY, GEORGE STONE, d/b/a OLMOS PHAR-

MACY, ALAMO HEIGHTS PHARMACY, INC., PATTS DRUG,

INC. d/b/a PaTT’s DruG STORE No. 1, BAYLOR PARSONS

d/b/a PARSONS PHARMACY, HIGHLAND HILLS PHAR-

MACY, INC., ECONODOSE SYSTEMS, INC. d/b/a MEDICAL

CENTER PHARMACY, GUSTAVE HNCIR, d/b/a TURNERS

PHARMACISTS, PHYSICIAN & SURGEONS PHARMACY, INC.,

CARLOS DiAZ d/b/a VALLEY VIEW PHARMACY, ALFRED

SANGALLI, d/b/a STAR DRUG STORE, BLANCO PHARMACY,

INC., BLANCO SOUTHSIDE PHARMACY, INC., DAN PARADA

d/b/a DAN’S PHARMACY, RODOLFO L. DAviLA, INC.

d/b/a DAVILA PHARMACY, DELLMAR PHARMACIES INC.

d/b/a DELLMAR PHARMACY #4, RONG, INC. d/b/a

ECONOMY PHARMACY #1, ZARZAMORA PHARMACY, INC.

and WHITE CROSS PROFESSIONAL PHARMACY, INC. d/b/a

WHITE Cross #1 and d/b/a WHITE Cross #4

Vv.

Group LIFE AND HEALTH INSURANCE COMPANY a/k/a

BLUE SHIELD and/or BLUE CROSS-BLUE SHIELD OF

39a

Order Approving Joint Motion to Suspend Discovery

TEXAS, WALGREEN TEXAS COMPANY, SOMMERS DRUG

STORE, RIEGER-MEDI-SAVE, INC. d/b/a GIBSONS PHAR-

MACY

ORDER APPROVING JOINT MOTION TO SUSPEND

DISCOVERY AND TO MODIFY ORDER

PRELIMINARY TO PRE-TRIAL CONFERENCE

On this 23rd day of January, 1976, came on to be con-

sidered the Joint Motion to Suspend Discovery and to

Modify Order Preliminary to Pre-Trial Conference filed

by the parties herein. Having reviewed the Motion and

the file in this cause, the Court finds that reasonable

grounds exist for the granting of such Motion.

Accordingly, it is hereby ORDERED that the Joint

Motion to Suspend Discovery and to Modify Order Pre-

liminary to Pre-Trial Conference should be and the same

is hereby and in all things GRANTED.

1. As of this date, all discovery in this action is

suspended in order that Defendants may present their

McCarran-Ferguson Act defenses to the Court for deter-

mination.

2. On or before thirty (30) days after date hereof,

Defendants shall file appropriate motions to dismiss

based upon their defenses asserted under the McCarran-

Ferguson Act, together with any appropriate supporting

materials and memorandum briefs.

3. On or before twenty (20) days after the motions

and briefs of Defendants are filed, Plaintiffs shall file

their responses and briefs, together with any necessary

supporting materials.

4. On or before ten (10) days after the responses and

briefs of Plaintiffs are filed, Defendants shall file any

replies that they deem necessary, together with any nec-

40a

Order Approving Joint Motion to Suspend Discovery

essary supplemental supporting materials. All discovery

shall be suspended pending a final determination of the

validity of the McCarran-Ferguson Act defenses asserted

by Defendants.

5. If it is ultimately determined by the Court or by an

appellate court that the McCarran-Ferguson Act defenses

of Defendants are not valid, the parties shall complete

discovery on the merits within ninety (90) days after

the date of such final determination.

6. A conference of attorneys will be held on or before

thirty (30) days after the completion of discovery.

7. Counsel for the respective parties will submit their

proposed agreed pre-trial orders within sixty (60) days

after the completion of discovery.

8. In the event counsel are unable to agree on a form

of a proposed agreed pre-trial order, then counsel for each

party is directed to submit his version of an appropriate

pre-trial order within ten (10) days after the expiration

of the date set forth in Paragraph 7 hereof.

ENTERED this 23rd day of January, 1976.

/s/ John H. Wood, Jr.

JOHN H. Woop, JR.

United States District Judge

APPROVED:

TINSMAN & HOUusER, INC.

1900 National Bank of Commerce Bldg.

San Antonio, Texas 78205

By: /s/ Joel H. Pullen

: JOEL H. PULLEN

Attorneys for Plaintiffs

Order Approving Joint Motion to Suspend Discovery

By: /s/

By: /s/

By: /s/

By: /s/

4la

Cox, SMITH, SMITH, HALE & GUENTHER

INCORPORATED

500 National Bank of Commerce Bldg.

San Antonio, Texas 78205

Keith E. Kaiser

KEITH E. KAISER

Attorneys for Defendant

Group Life and Health Insurance

Company

GROCE, LOCKE & HEBDON

2000 Frost Bank Tower

San Antonio, Texas 78205

Charles R. Shaddox

CHARLES R. SHADDOX

Attorneys for Defendant

Rieger/Medi-Save Pharmacies, Inc.

KAMPMANN, CHURCH & BURNS

120 Tesoro Building

8700 Tesoro Drive

San Antonio, Texas 78217

William C. Church, Jr.

WILLIAM C. CHURCH, JR.

Attorneys for Defendant

Walgreen Texas Co.

GRESHAM, DAVIS, GREGORY, WORTHY

& MOORE

1800 Frost Bank Tower

San Antonio, Texas 78205

Richard B. Moore

RICHARD B. MOORE

Attorneys for Defendant

The Sommers Drug Stores Company

42a

MOTION OF DEFENDANT GROUP LIFE AND HEALTH

INSURANCE COMPANY TO DISMISS,

FEBRUARY 23, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

(Caption Omitted in Printing]

MOTION OF DEF 2NDANT

GROUP LIFE AND HEALTH INSURANCE COMPANY

TO DISMISS

Defendant Group Life and Health Insurance Company,

also known as Blue Shield of Texas (“Blue Shield”) (in-

correctly designated by Plaintiffs as Blue Shield and/or

Blue Cross-Blue Shield of Texas), moves the Court to dis-

miss Plaintiffs’ Original Complaint pursuant to Rules

12(b) and 56, Federal Rules of Civil Procedure, and

bases this Motion on the following grounds:

1. This Court lacks jurisdiction over the subject mat-

ter of the Complaint because Blue Shield is engaged in the

“business of insurance’, and all matters alleged by Plain-

tiffs herein arise out of the “business of insurance’, which

“business” is regulated by state law. Therefore, Blue

Shield is exempted from the application of the Sherman

and Clayton Acts by the provisions of the McCarran-

Ferguson Act (15 U.S.C. § 1011, et segq.).

2. The Complaint fails to state a claim against Blue

Shield upon which relief can be granted because, as

shown in paragraph 1 above, the Court lacks jurisdiction

over the subject matter.

43a

Motion of Defendant Group Life and Health to Dismiss

3. In the absence of any action based upon federal iaw,

as shown above, this Court may net entertain Plaintiffs’

pendent claims based upon alleged violations of the Texas

antitrust laws.

4. Blue Shield further moves the Court to treat this

Motion as one for summary judgment pursuant to Rule

56, Federal Rules of Civil Procedure, and to consider the

following:

A. The Affidavit to Steve G. McDonald which is

attached hereto as Exhibit “A” and incorporated

herein by reference; and

B. The oral depositions of A. W. Pogue, Robert

C. McAnelly, Paul D. Connor and Donald H. Bunnell,

previously filed in the records of this proceeding, and

incorporated herein by reference.

5. This Motion is supported by a memorandum brief

filed contemporaneously herewith.

WHEREFORE, Blue Shield prays that this Court dis-

miss Plaintiffs’ Original Complaint and that this Motion

be treated as one for summary judgment.

Respectfully submitted,

Cox, SMITH, SMITH, HALE &

GUENTHER INCORPORATED

590 National Bank of

Commerce Bldg.

San Antonio, Texas 78205

44a

Motion of Defendant Group Life and Health to Dismiss

/s/ J. Burleson Smith

J. BURLESON SMITH

/s/ Keith E. Kaiser

KEITH E. KAISER

/s/ R. Laurence Macon

R. LAURENCE MACON

[Certificate of Service Omitted in Printing]

45a

AFFIDAVIT OF STEVE G. McDONALD IN SUPPORT OF

MOTION OF DEFENDANT GROUP LIFE AND HEALTH

INSURANCE COMPANY TO DISMISS,

FEBRUARY 23, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

AFFIDAVIT OF STEVE G. McDONALD IN SUPPORT

OF MOTION OF DEFENDANT GROUP LIFE AND

HEALTH INSURANCE COMPANY TO DISMISS

STATE OF TEXAS )

)

COUNTY OF DALLAS )

The witness, having been duly sworn, deposes and says:

1. My name is Steve G. McDonald. I reside at 6517

Turner Way, Dallas, Texas.

2. I make this Affidavit in support of the Motion of

Defendant Group Life and Health Insurance Company to

Dismiss and I have personal knowledge of the facts set

forth herein.

3. I am an attorney and I have been licensed to practice

in the State of Texas continuously since 1966. I am em-

ployed by Group Hospital Service, Inc. (“GHS”).

4. With the exception of a nine-month period, I have

been continuously employed by GHS since 1960. Since

January, 1966, I have been in the legal division of GHS

as one of its associate counsel.

5. GHS is a non-profit corporation duly organized and

existing under Chapter 20 of the Texas Insurance Code,

Tex. Ins. Code Ann. art. 20.01, et seg. GHS issues pre-

46a

Affidavit of Steve G. McDonald

paid coverage which provides hospital benefits to its sub-

scribers through contracts between the company and hos-

pitals. GHS also issues prepaid coverage which provides

benefits to its subscribers on an indemnity basis for medi-

cal and surgical care.

6. The Blue Cross service mark is owned by the Blue

Cross Association. GHS is authorized by the Blue Cross

Association to use the Blue Cross service mark and oper-

ates under the name of Blue Cross of Texas. Hereinafter,

GHS will be referred to as “Blue Cross”.

7. Group Life and Health Insurance Company

(“GL&H”) is a corporation duly organized and existing

under Chapter 3 of the Texas Insurance Code, Tex. Ins.

Code Ann. art. 3.01, et seq., and is authorized by the State

Board of Insurance of the State of Texas to transact the

business of life, health and accident insurance within the

State of Texas.

8. The Blue Shield service mark is owned by the Na-

tional Association of Blue Shield Plans. GL&H is au-

thorized by the National Association of Blue Shield Plans

to use the Blue Shield service mark and operates under

the trade name of Blue Shield of Texas. Hereinafter,

GL&H will be referred to as “Blue Shield”.

9. With the exception of a few qualifying shares issued

to directors of Blue Shield, all of the stock of Blue Shield

is owned by Blue Cross, a non-profit corporation.

10. The legal staff of Blue Cross, of which I am a

member, provides legal services to Blue Shield pursuant to

a management contract between the two companies.

11. Since 1968, I have been primarily responsible for

the filing of Blue Shield’s policy forms and related docu-

ments with the Commissioner of Insurance of the State

of Texas. Since 1966, I have participated in the prepara-

tion of Blue Shield’s policy forms and related documents.

47a

Affidavit of Steve G. McDonald

12. In 1969, Blue Shield determined to issue prescrip-

tion drug insurance coverage in the form of a supple-

mental policy to certain of its medical-surgical policies.

I assisted in the preparation of the supplemental policy.

A true and correct copy of the supplemental policy is at-

tached hereto as Exhibit “A” and incorporated herein by

reference.

13. Thereafter, I assisted in the preparation of the

Participating Drug Pharmacy Agreement, the purposes

of which were to comply with and effectuate the terms

and provisions of the prescription drug insurance policy,

to satisfy Blue Shield’s contractual obligations to its in-

sureds and to establish an efficient system of claims-

settlement procedures for the insureds under the policy.

A true and correct copy of the Participating Drug Phar-

macy Agreement is attached hereto as Exhibit “B” and

incorporated herein by reference.

14. On March 14, 1969, prior to issuance or use of the

prescription drug insurance policy or the Participating

Drug Pharmacy Agreement, I forwarded two copies of

each to the State Board of Insurance, pursuant to the

provisions of Tex. Ins. Code Ann. art. 3.42. A true and

correct copy of my letter of transmittal dated March 14,

1969, is attached hereto as Exhibit “C” and incorporated

herein by reference.

15. Thereafter, Blue Shield received from the Commis-

sioner of Insurance a copy of Official Order No. 29701,

dated June 18, 1969, which disapproved the prescription

drug insurance program. A true and correct copy of

Official Order No. 29701, dated June 18, 1969, is attached

hereto as Exhibit “D” and incorporated herein by ref-

erence.

16. As a result of the disapproval order, Blue Shield

did not issue or use the proposed prescription drug insur-

ance program.

48a

Affidavit of Steve G. McDonald

17. Subsequently, Blue Shield received from the Com-

missioner of Insurance a copy of Official Order No. 30413,

dated September 30, 1969, which Order exempted the pre-

scription drug insurance program from the approval re-

quirements of Tex. Ins. Code Ann. art. 3.42, and which

authorized Blue Shield to issue and use the program in

the State of Texas. A true and correct copy of Official

Order No. 30413, dated September 30, 1969, is attached

hereto as Exhibit “E” and incorporated herein by ref-

erence.

18. It is Blue Shield’s policy that the option of enter-

ing into a Participating Drug Pharmacy Agreement is

available to any licensed pharmacy in the State of Texas.

In 1969, Blue Shield made a statewide mailing to licensed

pharmacies advising them of this option.

19. Since September 30, 1969, Blue Shield has con-

ducted the prescription drug insurance program as au-

thorized by the exemption order (Exhibit “E”’).

20. The exemption order (Exhibit “E”) did not relieve

Blue Shield from any of the regulatory requirements set

out in the Texas Insurance Code, nor did it relieve Blue

Shield from any of the regulation or supervision estab-

lished by the State Board of Insurance. In conducting the

prescription drug insurance program, Blue Shield has

continued to be subject to all of the statutory and admin-

istrative regulations of the State of Texas and the State

Board of Insurance.

21. In 1974 Blue Shield agreed with Bexar County

Medical Foundation to provide certain group hospitaliza-

tion and medical-surgical insurance coverage to Bexar

County groups desiring such coverage. Included in the

proposed coverage was prescription drug insurance.

22. I assisted in preparing the prescription drug in-

surance policy form and other documents necessary for

49a

Affidavit of Steve G. McDonald

Blue Shield to be able to provide such coverage. The pre-

scription drug insurance program prepared for use in

connection with such coverage is virtually identical to the

program submitted to the State Board of Insurance in

1969. -

23. On September 23, 1974, prior to issuance or use

of any of the policies proposed under the agreement with

Bexar County Medical Foundation, I forwarded a copy of

each of them to the State Board of Insurance, pursuant to

Tex. Ins. Code Ann. art. 3.42. True and correct copies of

the prescription drug insurance policy and my letter of

transmittal dated September 23, 1974, are attached hereto

as Exhibits “F” and “G”, respectively, and incorporated

herein by reference.

24. Thereafter, Blue Shield received from the Commis-

sioner of Insurance a copy of Official Order No. 45511,

dated October 1, 1974, which approved, among other

things, the Bexar County prescription drug insurance

program. A true and correct copy of Official Order No.

45511, dated October 1, 1974, is attached hereto as Ex-

hibit “H” and incorporated herein by reference. Since

receipt of Official Order No. 45511, Blue Shield has been

issuing the prescription drug insurance to groups in

Bexar County, Texas.

25. After receipt of the approval order (Exhibit “H’”),

Blue Shield offered to virtually all licensed pharmacies in

San Antonio, Tc..as, the opportunity of entering into a

Participating Drug Pharmacy Agreement.

26. Blue Shield has not been notified by the Commis-

sioner of Insurance of Texas of any intention to amend,

modify or withdraw the approval order (Exhibit “H’’).

27. The Attorney Generai of Texas has initiated no

action against Blue Shield as a result of its issuance or

use of the prescription drug insurance program.

50a

Affidavit of Steve G. McDonald

28. In all operations under the prescription drug insur-

ance program, Blue Shield has transacted no business

other than the business of insurance pursuant to the au-

thority granted by the State Board of Insurance. Blue

Shield’s conduct under the program has always been with

a view toward strict compliance with the statutory and

regulatory requirements of the State of Texas and the

state agencies that regulate Blue Shield’s business.

29. Blue Shield is not engaged in the sale or dispens-

ing of prescription drugs as a manufacturer, wholesaler

or retailer. Blue Shield is engaged solely in transacting

the business of life, health and aecident insurance.

30. Nine of the eighteen Plaintiffs in this action are

Participating Pharmacies pursuant to a Participating

Drug Pharmacy Agreement with Blue Shield.

/s/ Steve G. McDonald

Steve G. MCDONALD

-

SUBSCRIBED AND SWORN TO BEFORE ME this

19 day of February, 1976.

/s/ Betty Jane McKinney

BETTY JANE MCKINNEY

Notary Public in and for

Dallas County, Texas

5la

GROUP LIFE AND HEALTH INSURANCE COMPANY

DRUG SUPPLEMENT POLICY, DATED APRIL 1, 1969

(ATTACHED AS “EXHIBIT A” TO AFFIDAVIT OF

STEVE G. McDONALD, FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

GROUP LIFE & HEALTH

Insurance Company

{L0GO]

Dallas, Texas

has issued this

DRUG S""PPLEMENT

to the

EXPERIENCE RATED GROUP

MEDICAL-SURGICAL INSURANCE POLICY

NO. 123456

issued heretofore or simultaneously herewith, to

XYZ COMPANY, INC.

(therewith and herein called the Employer)

as of April 1, 1969

(herein called the supplemental policy date)

and thereby agrees to provide the

additional benefits detailed herein,

all in accordance with the conditions and provisions here-

of, including those set out on the following pages which

are a part of this supplement as fully as if recited over

the signatures hereto affixed.

This supplement becomes effective on the supplemental

policy date, and is issued in consideration of the applica-

tion herefor made by the Employer. It will be continued

52a

Group Life and Health Drug Supplement Policy

in force subject to the timely payment of premiums here-

for, until terminated in accordance with the provisions of

the Article captioned “Termination of Drug Coverage.

IN WITNESS WHEREOF, the Insurer has caused this

supplement to be executed at its Home Office in Dallas,

Texas.

President

Countersigned :

Registrar

(Disapproved By Order No. 29701, June 18, 1969,

Commissioner of Insurance, State of Texas]

58a

Group Life and Health Drug Supplement Policy

ARTICLE I—SUPPLEMENTAL DEFINITIONS

AS USED HEREIN:

A.

GROUP HOSPITALIZATION CONTRACT means an

instrument issued by Group Hospital Service, Inc. of

Dallas, Texas to the Employer, bearing the same num-

ber as that appearing on the “Experience Rated Group

Medical-Surgical Insurance Policy” described on the

face page hereof, including any supplements thereto.

GROUP MEDICAL-SURGICAL INSURANCE POL-

ICY means the “Experienced Rated Group Medical-

Surgical Insurance Policy” described on the face page

hereof.

BASIC COVERAGE means the total amount of pro-

tection afforded a participant by both the group hos-

pitalization contract and the group medical-surgical

insurance policy on account of expense incurred for

drugs and medicines.

COVERED DRUGS means any Prescription Legend

Drug or injectable insulin:

(1) which is ordered by a physician;

(2) for which a written prescription order is cus-

tomarily prepared;

(3) for which a separate charge is customarily made;

and

(4) which is not entirely consumed at the time and

place that the prescription order is written.

PRESCRIPTION LEGEND DRUG means any medici-

nal substance—the label of which, under the Federal

Food, Drug, and Cosmetic Act, as amended, is re-

quired to bear the legend: “Caution: Federal Law

prohibits dispensing without prescription.”

54a

Group Life and Health Drug Supplement Policy

. DRUG DEDUCTIBLE means the amount to be paid

by a participant toward the cost of the initial pur-

chase of each covered drug and toward the cost of each

refill purchase of each covered drug and for each such

purchase and is equal to the amount specified in Item

20 of the schedule.

. PRESCRIPTION ORDER means a request for medi-

cation by a physician.

. PHARMACY means a licensed establishment where

Preseription Legend Drugs are dispensed by a person

who is not a practitioner of the healing arts and who

is licensed to dispense such drugs under the laws of

the state in which he practices.

. PROVIDER means any pharmacy, physician, or any

other person or organization legally licensed to dis-

pense drugs.

. PARTICIPATING PROVIDER means a provider lo-

cated in the State of Texas with which the Insurer or

Group Hospital Service, Inc. of Dallas, Texas, has

entered into a written contract for the rendition of

covered drugs for which benefits are provided by this

supplement, or any provider located outside the State

of Texas with which any other Blue Cross or Blue

Shield Plan has entered into such a contract.

NON-PARTICIPATING PROVIDER means a pro-

vider who is not a participating provider.

ARTICLE II—TERMS AND PROVISIONS

All definitions, limitations, and provisions recited in the

group medical-surgical insurance policy are hereby

adopted and shall be construed to apply in like man-

ner and with equal force to this supplement, any pro-

visions insofar as they are in conflict with provisions

55a

Group Life and Health Drug Supplement Policy

herein contained, in which case the provisions of this

supplement shall govern in any interpretations of

rights or obligations aecruing hereunder.

B. It is hereby specially declared that the non-duplication

provisions set forth in Article IV, Section F, of the

group medical-surgica! insurance policy are applicable

to this supplement except insofar as they are modified

by the provisions of the following subsections:

1. Determination of drug benefits under this supple-

ment shall be made in relation to each “claim,”

consisting of any combination of charges for cov-

ered drugs which are incurred within a calendar

year and submitted at one time by or on behalf of

a participant to the Insurer at his request for pay-

ment of drug benefits applicable thereto.

2. When the non-duplication provisions are applica-

ble, the benefits of the other coverage and all bene-

fits provided under the basic coverage on the items

composing the claim shall be deducted from the

charges for all such items, and the Insurer will

pay the remainder; provided, however, that in no

event shall these provisions be construed to in-

crease the amount of total benefits which would be

payable under this supplement on account of such

claim in the absence of other coverage.

ARTICLE III—BENEFITS

A. Subject to the exclusions, limitations, and all other

terms and provisions set forth herein, any participant

shall be entitled to receive covered drugs from any

participating provider as a benefit hereunder and shall

be required to pay no more than the drug deductible

for each of such covered drugs.

56a

Group Life and Health Drug Supplement Policy

B. Any participant receiving covered drugs from a non-

participating provider shall be entitled to benefits equal

to 75% of the result of the usual and customary

charges for such covered drugs as determined by the

Insurer, reduced by the drug deductible for such cov-

ered drugs; except that for covered drugs received

from a non-participating provider located outside of

the State of Texas, such participant shall be entitled

to benefits equal to 100% of the usual and customary

charges for such covered drugs, reduced by the drug

deductible for each such covered drugs.

C. Payment of benefits by the Insurer to the provider or

to the Employer, as the Insurer may elect, shall con-

stitute full discharge of all responsibility of the In-

surer to the employee on account of care rendered to

any participant under his coverage.

ARTICLE IV—LIMITATIONS AND EXCLUSIONS

In addition to the limitations and exclusions stipulated in

Article VI of the group medical-surgical insurance policy,

it is provided that no drug benefit shall be available for

any of the following:

A. Any charge for a contraceptive medication, even if

such medication is a Prescription Legend Drug, and

any charge for therapeutic devices or appliances (in-

cluding but not by way of limitation, hypodermic

needles, syringes, support garments, and other non-

medicinal substances) regardless of their intended use.

B. Any charge for services other than Covered Drugs,

including administration of a Prescription Legend

Drug or injectable insulin.

C. The charge for more than a 34-day supply of a medi-

cation, except that Blue Cross-Shield will cover 100

57a

Group Life and Health Drug Supplement Policy

unit doses (e.g. tablet or capsule) of a natural thyroid

product and 100 unit doses of nitroglycerine.

. The charge for any prescription refill in excess of the

number specified by the physician, or any refill dis-

pensed after one year from the physician’s order.

. Covered Drugs for which no charge is customarily

made.

. Covered Drugs to the extent that a benefit is provided

therefor under the basic coverage.

ARTICLE V—TERMINATION OF DRUG COVERAGE

A. This supplement and coverage of all participants here-

under shall automatically terminate:

1. When the group medical-surgical insurance policy

is terminated for any reason;

2. Upon default in payment of supplemental pre-

miums, subject to the grace period and reinstate-

ment provided for in the group medical-surgical

insurance policy;

3. Upon cancellation of this supplement in any man-

ner as specified in the group medical-surgical in-

surance policy for cancellation thereof.

. The coverage of any participant under this supple-

ment shall automatically terminate when his coverage

under the group medical-surgical insurance policy is

terminated, subject, howeve>, to refund of supplemen-

tal premiums paid in advance, as therein provided.

C. Under no circumstances shall the Plan be obligated to

notify any participant of the termination of this sup-

plement or of his coverage hereunder.

58a

Group Life and Health Drug Supplement Policy

D. No conversion privilege afforded a participant under

the group medical-surgical insurance policy shall be

deemed to apply to this supplement.

ARTICLE VI—GENERAL PROVISIONS

DISCLOSURE AUTHORIZATION. In consideration

of the Insurer’s having waived physical examination

in connection with the application herefor, the em-

ployee on behalf of himself and his covered dependents

and sponsored dependents shail be deemed te have

authorized any provider to make available to the In-

surer information relating to ali prescription orders,

copies thereof and other records as needed by the

Insurer.

. The Insurer shall not be liable for any claim or de-

mand for injuries or damage arising out of or in

connection with the manufacturing, compounding, dis-

pensing or use of any Prescription Legend Drugs or

insulin, whether or not covered under this supplement.

. The Insurer reserves the right to deny benefits for any

drug prescribed or dispensed in a manner contrary to

normal medical or pharmaceutical practice.

PARTICIPATING DRUG PHARMACY AGREEMENT

(ATTACHED AS “EXHIBIT B” TO AFFIDAVIT OF

STEVE G. McDONALD, FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

PARTICIPATING DRUG PHARMACY AGREEMENT

between

GROUP LIFE & HEALTH INSURANCE COMPANY

(Herein ealled Blue Shield)

Dallas, Texas

and

(Herein called the Partictpating Pharmacy )

(Type ef Organization)

(Address )

Pharmacy Permit No.

1. The Participating Pharmacy agrees that all phar-

macists dispensing drugs in its behalf are to be con-

* sidered participating pharmacists. The pharmacists

currently employed by the Participating Pharmacy

are:

Name License No.

60a

Participating Drug Pharmacy Agreement

. The Participating Pharmacy shall dispense drugs for

which benefits are provided under Blue Shield’s Drug

Supplement CC-OHDS-2 or any other supplement or

contract upon written notice by Blue Shield, to per-

sons who are entitled to benefits under such supple-

ments, all in accordance with the terms of such in-

struments.

. The Participating Pharmacy agrees to accept as full

payment for each drug provided under Section 2,

above, of this agreement an amount equal to the total

of the acquisition cost for such drug and a profes-

sional dispensing fee of $ . Acquisition

cost, as used in this agreement, means the actual cost

of a drug to the Participating Pharmacy, as deter-

mined under rules and regulations published by Blue

Shield.

. Blue Shield agrees to pay to the Participating Phar-

macy for each drug dispensed under Section 2 of this

agreement an amount equal to the excess, if any, of

the amount stipulated in Section 3, above, of this

agreement over the drug deductible amount, if any,

stipulated in the instrument under which drug bene-

fits are available, and the Participating Pharmacy

agrees that its charge for such drug to any other

person shall not exceed such drug deductible.

. Blue Shield agrees to provide the Participating Phar-

macy with a manual which will stipulate the drugs for

which benefits are available and drug deductible ap-

plicable to each person to whom drugs are to be dis-

pensed under Section 2 of this agreement, and in

which identification codes for certain of the drugs for

which benefits are provided will be stipulated. The

Participating Pharmacy agrees to include on those

claims for benefits the code for the drug for which

6la

Participating Drug Pharmacy Agreement

claim is made if such code is shown in the Participat-

ing Pharmacy’s current manual.

. All contracts or transactions in which the Participating

Pharmacy engages involving dispensing of drugs shall

be between the Participating Pharmacy and the patient

and Blue Shield shall not be a party thereto.

. The Participating Pharmacy agrees that Blue Shield

shall have the right to inspect all records pertaining

to persons eligible for benefits under its drug supple-

ments at any time during regular business hours.

. The Participating Pharmacy agrees not to engage in

any advertising relative to Blue Shield drug supple-

ments without prior approval of Blue Shield.

. This agreement may be terminated at any time by

either party by giving at least 15 days prior written

notice to the other party.

GROUP LIFE & HEALTH INSURANCE COMPANY

Dated at Dallas, Texas this

—day of. ,19—. By

President

Dated at , Texas this

—day of. —-, 19—. By.

Title:

LETTER OF TRANSMITTAL OF POLICY

AND AGREEMENT TO STATE BOARD OF INSURANCE,

DATED MARCH 4, 1969 (ATTACHED AS “EXHIBIT C”

TO AFFIDAVIT OF STEVE G. McDONALD,

FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

GROUP LIFE & HEALTH

Insurance Company

[LOGO]

March 14, 1969

Mr. Robert C. McAnelly

Supervisor, AHGL Policy Unit

State Board of Insurance

1110 San Jacinto

Austin, Texas 78701

Re: Form No. CC-OHDS-2

Form No. PDPA-1

Dear Mr. McAnelly:

We submit herewith for your approval Form No. CC-

OHDS-2 which is a Drug Supplement to our Custom Cov-

erage Group Medical-Surgical Insurance Policy, Form No.

MSCC-1, which was approved by your department under

Order No. 19427 on 9-27-65. We will use application

Form No. MSCC-App. 1, which was approved under the

same order number.

IT am also enclosing Form PDPA-1 which is the Partici-

pating Drug Pharmacy Agreement that Group Life &

Health Insurance Company will enter into with pharma-

cies for the provision of benefits under this supplement.

68a

Letter of Transmittal of Policy and Agreement

I am enclosing a duplicate copy of the supplement and

agreement together with this letter in order that you may

stamp them and return to us.

If we can furnish additional information concerning these

filings, please advise.

Sincerely yours,

Group LIFE & HEALTH

INSURANCE COMPANY

/s/ Steve G. McDonald

STEVE G. MCDONALD

[Disapproved By Order No. 29701, Jun. 18, 1969,

Commissioner of Insurance, State of Texas]

64a

OFFICIAL ORDER NO. 29701 OF TEXAS COMMISSIONER

OF INSURANCE, JUNE 18, 1969 (ATTACHED AS

“EXHIBIT D” TO AFFIDAVIT OF STEVE G. McDONALD,

FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

No. 29701

OFFICIAL ORDER

of the

COMMISSIONER OF INSURANCE

of the

STATE OF TEXAS

AUSTIN, TEXAS

Date June 18, 1969

Subject Considered :

APPROVAL OF FORMS

General remarks and official action taken:

On this date came on for consideration by the Commis-

sioner of Insurance application for approval of Form No.

CC-OHDS-2 filed by Group Life & Health insurance

Company and the Commissioner, having found that said

form does not comply with the requirements of Article

3.42, Texas Insurance Code, as amended, hereby disap-

proves said form under authority of the cited statute, and

herenow states his grounds for such disapproval as fol-

lows:

Under provision of said form the differentiation of bene-

fits as between “participating provider” dispensed drugs

and “non-participating provider” dispensed drugs consti-

tutes unfair discrimination within the meaning of Article

21.21, Texas Insurance Code.

65a

Official Order No. 29701 of Texas Commissioner of Ins.

The provisions of said .orm are violative of the anti-trust

and monopoly statutes of this state.

Prepared, recommended and approved by:

/8/ R. C. McAnelly

R. C. MCANELLY, Supervisor

Health and Group Life Policy Unit

Life Division

COMMISSIONER OF INSURANCE

By /s/ Don B. Odum

Don B. ODUM

Section Manager

Life Division

66a

OFFICIAL ORDEE NO. 30413 OF TEXAS COMMISSIONER

OF INSURANCE, DATED SEPTEMBER 30, 1969

(ATTACHED AS “EXHIBIT E” TO AFFIDAVIT

OF STEVE G. McDONALD, FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

No. 30413

OFFICIAL ORDER

of the

COMMISSIONER OF INSURANCE

of the

STATE OF TEXAS

AUSTIN, TEXAS

Date Sep. 30, 1969

Subject Considered:

POLICY FORM APPROVAL—

EXEMPTION FROM THE REQUIREMENTS OF

ARTICLE 3.42, TEXAS INSURANCE CODE

General remarks and official action taken:

Pursuant to the authority granted by Article 3.42, Para-

graph (e) of the Texas Insurance Code, the Commissioner

of Insurance hereby exempts from the requirements of

said Article Policy Form CC-OHDS-2 submitted by Group

Life and Health Insurance Company, Dallas, Texas; and

this exemption shall remain effective pending further or-

ders from the Commissioner of Insurance. To the extent

that this exemption order conflicts with Comm:ssioner’s

Order No. 29701, dated June 18, 1969, Order No. 29701

is superseded.

67a

Official Order No. 30413 of Texas Commissioner of Ins.

This exemption order shall also apply to any form, iden-

tical in content to Form CC-OHDS-2, delivered, issued or

used in this state by any licensed insurer.

This exemption order is issued and published for the rea-

son that, in the opinion of the Commissioner, Article 3.42

of the Texas Insurance Code may not practicably be ap-

plied at this time to the forms covered by the exemption.

The exempt forms are described as drug service contracts,

which confer upon the policyholder the right to obtain

certain prescribed drugs at a cost fixed in the contract,

the insurer having entered into participating agreements

with dispensing pharmacies to supply the prescribed drugs

to its policyholders.

The policy forms herein exempt, used in connection with

the participating agreements with pharmacies as described

above, have raised questions under the Texas anti-trust

and anti-monopoly laws, and such questions have been re-

ferred to the Attorney General of the State of Texas.

Pending such time as these questions are resolved, the

exemptions authorized by this Order are granted for the

purpose of preventing any competitive advantages which

foreign insurance companies, issuing policies outside of

Texas but including Texas residents under their coverage,

might have over domestic companies seeking to issue equiv-

alent policy contracts.

/8/ Clay Cotten

CLAY COTTEN

Commissioner of Insurance

Prepared by:

/s/ Paul D. Connor

PAUL D. CONNOR

Assistant to the Commissioner

68a

GROUP LIFE AND HEALTH INSURANCE COMPANY

DRUG SUPPLEMENT POLICY, DATED OCTOBER 1, 1974

(ATTACHED AS “EXHIBIT F” TO AFFIDAVIT OF

STEVE G. McDONALD, FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

[LoGo]

GROUP LIFE & HEALTH INSURANCE CO.

(Herein called Blue Shield of Texas)

Dallas, Texas

has issued this

DRUG SUPPLEMENT

to the

EXPERIENCE RATED GROUP HOSPITALIZATION

AND MEDICAL-SURGICAL CONTRACT

NO. 34567

issued heretofore or simultaneously herewith, to

ABC COMPANY

(therewith and herein called the Employer)

as of October 1, 1974 (herein called the supplemental

contract date) and thereby agrees to provide the

additional benefits detailed herein,

all in accordance with the conditions and provisions here-

of, including those set out on the following pages which

are a part of this supplement as fully as if recited over

the signatures hereto affixed.

This supplement becomes effective on the supplemental

contract date, and is issued in consideration of the appli-

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

69a

Group Life and Health Ins. Co. Drug Supplement Policy

cation herefor made by the Employer. It will be continued

in force subject to the timely payment of premiums here-

for, until terminated in accordance with the provisions of

the Article captioned “Termination of Drug Coverage.”

IN WITNESS WHEREOF, Blue Shield of Texas has

caused this supplement to be executed at its Home Office

in Dallas, Texas.

/s/ Tom L. Beauchamp, Jr.

President

/s/ (Illegible]

Secretary

Countersigned :

Registrar

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

70a

Group Life and Health Ins. Co. Drug Supplement Policy

ARTICLE I—SUPPLEMENTAL DEFINITIONS

AS USED HEREIN:

A. BASIC CONTRACT means the “Experience Rated

Group Hospitalization and Medical-Surgical Con-

tract” described on the face page hereof.

B. BASIC COVERAGE means the total amount of pro-

tection afforded a participant by the basic contract

on account of expense incurred for drugs and medi-

cines.

C. COVERED DRUGS means any Prescription Legend

Drug or injectable insulin:

(1) which is ordered by a physician;

(2) for which a written prescription order is cus-

tomarily prepared ;

(3) for which a separate charge is customarily

made;

(4) which is not entirely consumed at the time and

place that the prescription order is written; and

(5) which is received by the participant while cov-

ered hereunder.

D. PRESCRIPTION LEGEND DRUG means any me-

dicinal substance—the label of which, under the Fed-

eral Food, Drug, and Cosmetic Act, as amended, is

required to bear the legend: “Caution: Federal Law

prohibits dispensing without prescription.”

E. DRUG DEDUCTIBLE means the amount to be paid

by a participant toward the cost of the initial pur-

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

Tla

Group Life and Health Ins. Co. Drug Supplement Policy

chase of each covered drug and toward the cost of

each refill purchase of each covered drug and for each

such purchase and is equal to two dollars ($2.00).

F. PRESCRIPTION ORDER means a request for medi-

cation by a physician.

G. PHARMACY means a licensed establishment where

Prescription Legend Drugs are dispensed by a person

who is not a practitioner of the healing arts and

who is licensed to dispense such drugs under the laws

of the state in which he practices.

H. PROVIDER means any pharmacy, physician, or any

other person or organization legally licensed to dis-

pense drugs.

I. PARTICIPATING PROVIDER means a provider

located in the State of Texas with which Blue Shield

of Texas or Group Hospital Service, Inc. of Dallas,

Texas, has entered into a written contract for the

rendition of covered drugs for which benefits are pro-

vided by this supplement, or any provider located

outside the State of Texas with which any other Blue

Cross or Blue Shield Plan has entered into such a

contract.

J. NON-PARTICIPATING PROVIDER means a pro-

vider who is not a participating provider.

ARTICLE II—TERMS AND PROVISIONS

A. All definitions, limitations, and provisions recited in

the basic contract are hereby adopted and shall be

construed to apply in like manner and with equal

force to this supplement and any other provisions

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

— ae Wwar'er Tr

72a

Group Life and Health Ins. Co. Drug Supplement Policy

B.

insofar as they are in conflict with provisions herein

contained, in which case the provisions of this supple-

ment shall govern in any interpretation of rights or

obligations accruing hereunder.

It is hereby specially declared that the non-duplication

provisions set forth in Article V, Section E, of the

basic contract are applicable to this supplement ex-

cept insofar as they are modified by the provisions

of the following subsections:

1. Determination of drug benefits under this supple-

ment shall be made in relation to each “claim,”

consisting of any combination of charges for cov-

ered drugs which are incurred within a calendar

year and submitted at one time by or on behalf

of a participant to Blue Shield of Texas at his

request for payment of drug benefits applicable

thereto.

2. When the non-duplication provisions are applica-

ble, the benefits of the other coverage and all bene-

fits provided under the basic coverage on the

items composing the claim shall be deducted from

the charges for all such items, and Blue Shield of

Texas will pay the remainder; provided, however,

that in no event shall these provisions be con-

strued to increase the amount of total benefits

which would be payable under this supplement on

account of such claim in the absence of other

coverage.

ARTICLE III—BENEFITS

A. Subject to the exclusions, limitations, and all other

terms and provisions set forth herein, any participant

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

73a

Group Life and Health Ins. Co. Drug Supplement Policy

shall be entitled to receive covered drugs from any

participating provider as a benefit hereunder and

shall be required to pay no more than the drug de-

ductible for each of such covered drugs.

B. Any participant receiving covered drugs from a non-

participating provider shall be entitled to benefits

equal to 75% of the result of the reasonable charge

for such covered drugs as determined by Blue Shield

of Texas, reduced by the drug deductible for such

covered drugs; except that for covered drugs received

from a non-participating provider located outside of

the State of Texas, such participant shall be entitled

to benefits equal to 100% of the reasonable charge

for such covered drugs, reduced by the drug deducti-

ble for each such covered drugs.

C. Payment of benefits by Blue Shield of Texas to the

provider or to the employee, as Blue Shield of Texas

may elect, shall constitute full discharge of all re-

sponsibility of Blue Shield of Texas to the employee

on account of care rendered to any participant under

his coverage.

ARTICLE IV—LIMITATIONS AND EXCLUSIONS

In addition to the limitations and exclusions stipulated in

Article VIII of the basic contract, it is provided that no

drug benefit shall be available for any of the following:

A. Any charge for a contraceptive medication, even if

such medication is a Prescription Legend Drug, and

any charge for therapeutic devices or appliances (in-

cluding but not by way of limitation, hypodermic

needles, syringes, support garments, and other non-

medicinal substances) regardless of their intended

use;

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

T4a

Group Life and Health Ins. Co. Drug Supplement Policy

B.

F.

G.

Any charge for services other than Covered Drugs,

including administration of a Prescription Legend

Drug or injectable insulin;

The charge for more than a 34-day supply of a medi-

cation, except that Blue Shield of Texas will cover

100 unit doses (e.g. tablet or capsule) of a natural

thyroid product and 100 unit doses of nitroglycerine;

The charge for any prescription refill in excess of

the number specified by the physician, or any refill

dispensed after one year from the physician’s order;

Covered Drugs for which no charge is customarily

made;

Covered Drugs to the extent that a benefit is provided

therefor under the basic coverage ;

Covered Drugs which are not medically necessary.

ARTICLE V—TERMINATION OF DRUG COVERAGE

A.

This supplement and coverage of all participants

hereunder shall automatically terminate:

1. When the basic contract is terminated for any

reason ;

2. Upon default in payment of supplemental premi-

ums, subject to the grace period and reinstate-

ment provided for in the basic contract;

3. Upon cancellation of this supplement in any man-

ner as specified in the basic contract for cancella-

tion thereof.

The coverage of any participant under this supple-

ment shall automatically terminate when his cover-

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texar!

Tba

Group Life and Health Ins. Co. Drug Supplement Policy

age under the basic contract is terminated, subject,

however, to refund of supplemental premiums paid

in advance, as therein provided.

Under no circumstances shall Blue Shield of Texas

be obligated to notify any participant of the termi-

nation of this supplement or of his coverage here-

under.

No conversion privilege afforded a participant under

the basic contract shall be deemed to apply to this

supplement.

ARTICLE VI—GENERAL PROVISIONS

DISCLOSURE AUTHORIZATION. In consideration

of Blue Shield of Texas having waived a physical

examination in connection with the application here-

for, the employee on behalf of himself and his cov-

ered dependents shall be deemed to have authorized

any provider to make available to Blue Shield of

Texas information relating to all prescription orders,

copies thereof and other records as needed by Blue

Shield of Texas.

Blue Shield of Texas shall not be liable for any claim

or demand for injuries or damage arising out of or

in connection with the manufacturing, compounding,

dispensing or use of any Prescription Legend Drug

or insulin, whether or not covered under this supple-

ment.

Blue Shield of Texas reserves the right to deny bene-

fits for any drug prescribed or dispensed in a manner

contrary to normal medical or pharmaceutical prac-

tice.

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

76a

LETTER OF TRANSMITTAL OF POLICY TO STATE

BOARD OF INSURANCE, DATED SEPTEMBER 23, 1974

(ATTACHED AS “EXHIBIT G” TO AFFIDAVIT OF

STEVE G. McDONALD, FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

GROUP LIFE & HEALTH

Insurance Company

[Loco]

Main at North Central Expressway

P. 0. Box 5403

Dallas, Texas 75222

September 23, 1974

Mr. A. W. Pogue, Manager

Headquarters Section, Life Division

State Board of Insurance

1110 San Jacinto

Austin, Texas 78786

Re: MF-1, Experience Rated Group Hospitalization

and Medical-Surgical Contract

MF-1-DS-1, Drug Supplement

MF-1-APP-1, Group Application Blank

MF-1-OA-1, Operating Agreement

MF-1-IA-1, Insurance Agreement

Dear Mr. Pogue:

We submit herewith for your approval the above de-

scribed new contract forms.

We anticipate entering into a health care program agree-

ment with the Bexar County Medical Foundation wherein

[Approved By Order No. 45511, Oct. 1, 1974,

Commissioner of Insurance, State of Texas]

77a

Letter of Transmittal of Policy

Blue Shield of Texas will provide benefits as set forth

in Form Nos. MF-1, Article VII, and MF-1-DS-1 to

groups desiring this coverage. The Bexar County Medi-

cal Foundation will provide medical-surgical benefits as

set forth in a separate contract, a copy of which will be

sent to you in a few days for information purposes only.

We are also submitting for your approval the operating

and reinsurance agreements between Blue Cross and

Blue Shield of Texas and the Bexar County Medical

Foundation. The attached list indicates our internal

stock control numbers used for these various forms.

Within the next few weeks we will submit the certificate-

booklet and enrollment application card for your ap-

proval.

We are submitting two copies of each form described

above, together with an extra copy of this letter. Will

you please stamp the extra copy of each “approved” and

return to us for our files. These same forms are being

concurrently filed by Group Hospital Service, Inc.

If additional information is needed regarding this filing,

please call me in order that we may discuss the matter

more in detail by telephone.

Yours very truly,

Group LIFE & HEALTH

INSURANCE Co.

/s/ Steve G. McDonald

STEVE G. MCDONALD

SGMcD:je

Encs.

ec: Mr. Joe Hawkins, Mr. John Holden

78a

Letter of Transmittal of Policy

1600-974

1601-974

1602-974

1603-974

1604-974

1605-974

1606-974

1607-974

1608-974

1609-974

1610-974

1611-974

1612-974

1613-974

1618-974

1619-974

1620-974

1621-974

1622-974

1623-974

1624-974

1625-974

1626-974

1627-974

1628-974

1629-974

1630-974

1631-974

1632-974

1633-974

1634-974

1635-974

Face Page

Article I

Article I

Article I

Article I

Article II

Article IT

Article II

Article III

Article IV

Article IV

Article V

Article V

Article V

Article VII

Article VII

Article VII

Article VIII

Article VIII

Article IX

Article IX

Article X

Article XI

Article XI

Article XI

Face Page

Article I

Article II

Article ITI

Article IV

Article V

Article VI

MF-1, Experience Rated Group Hospitalization and Medical-Surgical

Contract (between Blue Cross and Blue Shield and the Group)

(Page 2)

(Page 3)

(Page 4)

(Page 2)

(Page 3)

(Page 2)

(Page 2)

(Page 3)

(Page 2)

(Page 3)

(Page 2)

(Page 2)

(Page 2)

(Page 3)

MF-1-DS-1, Drug Supplement

MF-1-APP-1, Group Application Blank

1636-974

1637-974

Page 1

Page 2

79a

OFFICIAL ORDER NO. 45511 OF TEXAS

COMMISSIONER OF INSURANCE, DATED OCTOBER 1,

1974 (ATTACHED AS “EXHIBIT H” TO AFFIDAVIT OF

STEVE G. McDONALD, FEBRUARY 23, 1976)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

No. 45511

OFFICIAL ORDER

of the

COMMISSIONER OF INSURANCE

of the

STATE OF TEXAS

AUSTIN, TEXAS

Date Oct. 1, 1974

Subject Considered:

General remarks and official action taken:

On this date came on for consideration by the Commis-

sioner of Insurance applications for approval of the

forms described herein; and the Commissioner, having

found that each of said forms complies with the require-

ments of Article 3.42, Texas Insurance Code, as amend-

ed, hereby approves each of said forms under authority

of the cited statute:

Submitted By: Identifying Form Nos :

Group Hospital Service, Inc. MF-1 with;

Group Life & Health Insurance Company MF-1-APP-1 attached;

MF-1-DS-1.

This approval is extended for use as the

insurer portion of a Group Comprehensive

Medical Care Plan and such approval is

limited and does not constitute approval

of the said form for any other use under

the Texas Insurance Code.

80a

Official Order No. 45511 of Texas Commissioner of Ins.

/3/ Don B. Odum

Don B. ODUM

COMMISSIONER OF INSURANCE

Prepared, recommended and approved by:

/s/ Mildred R. Kurt

(Mrs.) MiLprRep R. Kurt, Supervisor

Health and Group Life Policy Unit

Life Division

8la

MOTION OF DEFENDANT WALGREEN TEXAS CO.

TO DISMISS, FEBRUARY 23, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

MOTION OF DEFENDANT, WALGREEN TEXAS

CO., TO DISMISS

Defendant, WALGREEN TEXAS CO., respectfully

moves the Court to dismiss Plaintiffs’ Original Complaint

pursuant to Rules 12(b) and 56, Federal Rules of Civil

Procedure.

1.

This Motion is based on the specific grounds that this

Court lacks jurisdiction over the subject matter of the

Complaint, all as set out and detailed in the Motion To

Dismiss of the principal Defendant, GROUP LIFE AND

HEALTH INSURANCE COMPANY, and which grounds

are hereby adopted in full by Defendant, WALGREEN

TEXAS CO.

2.

Defendant, WALGREEN TEXAS CO., in support of

this Motion to Dismiss, would adopt in full the argument

and authorities as contained in the Memorandum Brief

filed herein by the principal Defendant, GROUP LIFE

AND HEALTH INSURANCE COMPANY.

WHEREFORE, WALGREEN TEXAS CO., prays that

this Court dismiss Plaintiffs’ Original Complaint or that

this Motion be treated as one for Summary Judgment.

82a

Motion of Defendant Walgreen Texas Co. to Dismiss

Respectfully submitted,

/s/ Wm. C. Church, Jr.

Wo. C. CHURCH, JR.

8700 Tesoro Drive

Suite #120

Post Office Box 17409

San Antonio, Texas 78217

(512) 828-8261

Attorney for Defendant,

Walgreen Texas Co.

Of Counsel:

KAMPMANN, CHURCH & BURNS

8700 Tesoro Drive

Suite #120

Post Office Box 17409

San Antonio, Texas 78217

83a

Motion of Defendant Walgreen Texas Co. to Dismiss

CERTIFICATE OF SERVICE

I certify a true and correct copy of the above and

foregoing Motion of Defendant, WALGREEN TEXAS

CO., To Dismiss, was mailed, postage prepaid, to the

following counsel of record, this 23rd day of February,

1976:

Mr. Joel H. Pullen

TINSMAN & Houser, INC.

1900 National Bank of Commerce Building

San Antonio, Texas 78205

Attorneys for Plaintiffs

Mr. Keith E. Kaiser

Cox, SMITH, SMITH, HALE & GUENTHER, INC.

500 National Bank of Commerce Building

San Antonio, Texas 78205

Attorneys for Defendant,

Group Life and Health Insurance Company

Mr. Charles R. Shaddox

GROCE, LOCKE & HEBDON

200 Frost Bank Tower

San Antonio, Texas 78205

Attorneys for Defendant,

Rieger/Medi-Save Pharmacies, Inc.

84a

MOTION OF DEFENDANT THE SOMMERS DRUG

STORES COMPANY TO DISMISS,

FEBRUARY 23, 1976

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

MOTION OF DEFENDANT, THE SOMMERS DRUG

STORES COMPANY, TO DISMISS

Comes now Defendant, THE SOMMERS DRUG

STORES COMPANY (“Sommers”), and files this its

Motion to Dismiss and says:

1. The grounds for dismissal set forth in the MOTION

OF DEFENDANT, GROUP LIFE AND HEALTH IN-

SURANCE COMPANY (“Blue Shield”) and the argu-

ments contained in the accompanying Blue Shield Brief

clearly show that the case should be dismissed against

Sommers.

2. Sommers reiterates its defenses set forth as Som-

mers’ THIRD DEFENSE in Sommers’ Answer, here-

tofore filed in this cause, and moves the Court to dis-

miss this cause based upon such allegations, which are

as follows:

Third Defense

The Complaint fails to state a claim upon which re-

lief can be granted against Sommers under the antitrust

laws of the United States because the Defendant GROUP

LIFE AND HEALTH INSURANCE COMPANY (“Blue

Cross”) is engaged in the “business of insurance”, and

all matters alleged by Plaintiffs herein arise out of the

“business of insurance”, which is regulated by the In-

surance Commissioner of the State of Texas and exempt

85a

Motion of Defendant Sommers Drug Stores to Dismiss

from the provisions of the Sherman and Clayton Acts

pursuant to the McCarran-Ferguson Act (15 U.S.C.

§ 1011, et seq.).

3. Sommers joins Blue Shield in its Motion Number 4

to Treat Blue Shield Motion as one for summary judg-

a and adopts said Motion and supporting documenta-

on.

4. This Motion is supported by the Sommers Brief

filed contemporaneously herewith.

WHEREFORE, Sommers prays that this honorable

court dismiss Plaintiff’s Original Complaint and that

this Motion be treated as one for summary judgment.

Respectfully submitted,

GRESHAM, DAvIs, GREGORY,

WorTHY & Moore

1800 Frost Bank Tower

San Antonio, Texas 78205

By /s/ Richard B. Moore

RICHARD B. Moore

[Certificate of Service Omitted in Printing]

86a

MOTION OF DEFENDANT RIEGER/MEDI-SAVE

PHARMACIES, INC. TO DISMISS,

FEBRUARY 25, 1976

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

DEFENDANT, RIEGER-MEDI-SAVE PHARMACIES,

INC.’S MOTION TO DISMISS

TO THE HONORABLE UNITED STATES DISTRICT COURT:

NOW COMES Defendant, RIEGER-MEDI-SAVE

PHARMACIES, INC., and files its Motion to Dismiss,

and for alternative relief, and would show the Court as

follows:

I,

In support of this Motion, Defendant relies upon the

pleadings on file and such depositions and affidavits which

shall be timely filed in connection with the Motion.

II.

Defendant, RIEGER-MEDI-SAVE PHARMACIES,

INC., hereby incorporates by reference, the Motion to

Dismiss of Defendant Group Life and Health Insurance

Company, together with the Brief filed in support of that

Motion. Defendant RIEGER-MEDI-SAVE PHARMA-

CIES, INC., asks the Court to consider all matters raised

in that Motion and Brief in connection with this Motion.

87a

Motion of Defendant Rieger/Medi-Save to Dismiss

ITI.

This Defendant moves the Court pursuant to Rule

12(b), to dismiss Plaintiff's Complaint for lack of ju-

risdiction over the subject matter and failure to state a

claim upon which relief may be granted. Defendant al-

ternatively asks the Court to treat this Motion as one

for Partial Summary Judgment, pursuant to Rule 56 of

the Federal Rules of Civil Procedure, and grant it Judg-

ment on all Federal Anti-Trust Claims asserted by Plain-

tiffs.

As grounds for such relief this Defendant would show

the Court that all matters raised by Plaintiff’s Complaint

(except the purely pendent count) have been exempted

from the application of the Sherman and Clayton Acts

(15 U.S.C. Sections 1 to 7; 15 U.S.C. Section 12, et seq.)

by the application of the McCarran-Ferguson Act (15

U.S.C. Section 1011, et seq.). Since the McCarran-

Ferguson Act removes the complained of activities from

the Sherman and Clayton Acts, there is no statutory

basis to support this action. The Original Complaint on

its face [indicates] that there is no total diversity of

citizenship between the parties.

As there is no original jurisdiction for this action,

the remaining pendant counts should likewise be dis-

missed.

Defendant, RIEGER-MEDI-SAVE PHARMACIES,

INC., moves the Court to Dismiss the Complaint or,

alternatively, grant it a Summary Judgment on all Fed-

eral Anti-Trust Claims, and to dismiss the remaining

pendant count.

88a

Motion of Defendant Rieger/Medi-Save to Dismiss

Respectfully submitted,

GROCE, LOCKE & HEBDON

By: /s/ Charles R. Shaddox

CHARLES K, SHADDOX

2000 Frost Bank Tower

San Antonio, Texas 78205

Attorneys for Defendant,

Rieger-Medi-Save

Pharmacies, Inc.

[Certificate of Service Omitted in Printing]

89a

STIPULATION OF PLAINTIFFS AND DEFENDANT

RIEGER/MEDI-SAVE PHARMACIES, INC.,

MARCH II, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

STIPULATION

It is agreed by and between Plaintiffs and Defendant,

RIEGER-MEDI-SAVE PHARMACIES, INC., that the

following facts are stipulated for the purpose of the

Motions to Dismiss filed by Defendants, February 20,

1976.

I.

RIEGER-MEDI-SAVE PHARMACIES, INC., operates

three (3) retail pharmacies located in Gibson’s Discount

Centers, in Bexar County, Texas.

Il.

RIEGER-MEDI-SAVE PHARMACIES, INC., has not

been licensed by the State of Texas to issue policies of

insurance.

ITI.

RIEGER-MEDI-SAVE PHARMACIES, INC., does not

operate an insurance agency licensed pursuant to

V.A.T.S., Insurance Code, Art. 21.07, et seq., or 21.14,

et seq., in Bexar County, Texas.

90a

Stipulation of Rieger/Medi-Save Pharmacies, Inc.

STIPULATED this 9th day of March, 1976.

/s/ C. R. Shaddox

CHARLES R. SHADDOX

2000 Frost Bank Tower

San Antonio, Texas 78205

Attorney for Defendant,

Rieger-Medi-Save

Pharmacies, Inc.

By: /s/ Joel H. Pullen

JOEL H. PULLEN

1900 National Bank of

Commerce Building

San Antonio, Texas 78205

Attorney for Plaintiffs

9la

STIPULATION OF PLAINTIFFS AND DEFENDANT

THE SOMMERS DRUG STORES COMPANY,

MARCH II, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

STIPULATION

It is agreed by and between Plaintiffs and Defendant,

THE SOMMERS DRUG STORES COMPANY, that the

following facts are stipulated for the purpose of the

Motions to Dismiss filed by Defendants, February 20,

1976.

I.

THE SOMMERS DRUG STORES COMPANY op-

erates twenty-five (25) retail pharmacies in Bexar Coun-

ty, Texas.

II.

THE SOMMERS DRUG STORES COMPANY has

not been licensed by the State of Texas to issue policies

of insurance.

ITI.

THE SOMMERS DRUG STORES COMPANY does

not operate an insurance agency licensed pursuant to

V.A.T.S., Insurance Code, Art. 21.07, et seq., or 21.14, et

seq., in Bexar County, Texas.

92a

Stipulation of The Sommers Drug Stores Co.

STIPULATED this 10th day of March, 1976.

/s/ Richard B. Moore

RICHARD B. MOORE

1800 Frost Bank Tower

San Antonio, Texas 78205

Attorney for Defendant,

The Sommers Drug Stores

Company

By /s/ Joel H. Pullen

JOEL H. PULLEN

1900 National Bank of

Commerce Building

San Antonio, Texas 78205

Attorney for Plaintiffs

93a

STIPULATION OF PLAINTIFFS AND DEFENDANT

WALGREEN TEXAS CO., MARCH Il, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

STIPULATION

It is agreed by and between Plaintiffs and Defendant,

WALGREEN TEXAS CO., that the following facts are

stipulated for the purpose of the Motions to Dismiss filed

by Defendants.

1.

Defendant, WALGREEN TEXAS CO., operates two

(2) retail pharmacies located in San Antonio, Bexar

County, Texas.

2.

Defendant, WALGREEN TEXAS CO., has not been

licensed by the State of Texas to issue policies of insur-

ance.

3.

Defendant, WALGREEN TEXAS CO., does not op-

erate an insurance agency licensed pursuant to V.A.TS.,

Insurance Code, Art. 21.07, et. seq., or 21.14, et. seq., in

San Antonio, Bexar County, Texas.

94a

Stipulation of Walgreen Texas Co.

STIPULATED this 11th day of March, 1976.

/s/ Wm. C. Church, Jr.

/s/

Wm. C. CHURCH, JR.

8700 Tesoro Drive,

Suite #120

San Antonio, Texas 78217

Attorney for Defendant,

Walgreen Texas Co.

Joel H. Pullen

JOEL H. PULLEN

1900 National Bank of

Commerce Building

San Antonio, Texas 78205

Attorney for Plaintiffs

95a

AFFIDAVIT OF BRUCE L. BUSBY IN SUPPORT OF

DEFENDANT RIEGER/MEDI-SAVE PHARMACIES,

INC.’S MOTION TO DISMISS, APRIL 19, 1976

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

AFFIDAVIT IN SUPPORT OF DEFENDANT

RIEGER/MEDI-SAVE PHARMACIES, INC.’s

MOTION TO DISMISS

BRUCE L. BUSBY, herein states and deposes as fol-

lows:

1. I am Bruce L. Busby, an adult resident of East

Baton Rouge Parish, Louisiana, possessed of sound mind

and I have never been convicted of a felony. I am com-

petent to testify about the matters contained herein and

this statement is based on my personal knowledge.

2. I hold the position of treasurer at Rieger/Medi-Save

Pharmacies, Inc. (now Medi-Save Pharmacies, Inc.),

which position I have held for more than six (6) years;

I have also been vice-president for approximately one

year. My responsibilities include supervision of all fi-

nance functions and accounting and control functions.

3. The only contracts known to me between any repre-

sentative of Rieger/Medi-Save Pharmacies, Inc. and any

representative of Group Life and Health Insurance Com-

pany are as follows: Rieger/Medi-Save Pharmacies, Inc.

received copies of Group Life and Health Insurance Com-

pany’s participating drug pharmacy agreement in the

mail. Rieger/Medi-Save Pharmacies, Inc. then informed

Group Life and Health Insurance Company that it wished

to participate in the program and requested further in-

96a

Affidavit of Bruce L. Busby

formaticn concerning the administrative details and

processing claims. Each of the Rieger/Medi-Save Phar-

macies, Inc. stores which were to participate executed a

contract, as did Rieger/Medi-Save Pharmacies, Inc. Since

the execution of the initial contracts, the only further con-

tacts between Rieger/Medi-Save Pharmacies, Inc. and

Group Life and Health Insurance Company have con-

sisted solely of correspondence regarding claims between

the individual stores and Group Life and Health Insur-

ance Co. I do not know of any correspondence directly

between Rieger/Medi-Save Pharmacies, Inc. and Group

Life and Health Insurance Co. since execution of the

initial contracts, other than correspondence attached as

Exhibit A.

4. Rieger/Medi-Save Pharmacies, Inc. has never con-

tacted any Walgreen’s Texas stores or any Sommers

Drug Stores with regard to Group Life and Health In-

surance Company’s participating drug pharmacy agree-

ment, the setting or fixing of the retail price of prescrip-

tion pharmaceuticals, or the foreclosure of any of the

plaintiffs from any portion of the market for prescrip-

tion pharmaceuticals.

5. At no time has Rieger/Medi-Save Pharmacies, Inc.

or any of its directors, officers, employees, or agents taken

any action designed to foreclose any of the plaintiffs in

this cause from any portion of the market for prescrip-

tion pharmaceuticals.

6. Rieger/Medi-Save Pharmacies, Inc., its officers, di-

rectors, employees and agents have never conspired with,

consulted with, or even considered the actions of any of

the defendants in this case in determining the retail

price of prescription pharmaceuticals.

/s/ Bruce L. Busby

BRucE L. BusBy

97a

Affidavit of Bruce L. Busby

STATE OF LOUISIANA

PARISH OF EAST BATON ROUGE

SWORN TO AND SUBSCRIBED BEFORE ME, a

notary public, on this the 15th day of April, 1976.

/s/ William D. Morgan

WILLIAM D. MORGAN,

Notary Public

My Commission expires at

death.

[Certificate of Service Omitted in Printing]

98a

AFFIDAVIT OF JOHN HANNAH, APRIL 19, 1976

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

[Caption Omitted in Printing]

AFFIDAVIT

JOHN HANNAH, by me being first duly sworn, de-

poses and says:

1. That he is a duly elected, qualified and acting Vice

President of THE SOMMERS DRUG STORES COM-

PANY, (Sommers) a corporation duly organized under

the laws of Maryland, and existing, and authorized to do

business under and by virtue of the laws of the State of

Texas, with its principal place of business in the City of

San Antonio, Bexar County, Texas, and one of the De-

fendants in this cause.

2. That the relationship between Blue Shield and Som-

mers originated with a submission from Blue Shield in

November, 1974, of a proposed form of Participating

Pharmacy Agreement, which was considered by Sommers

without discussion with any other person, firm, or en-

tity, and the Sommers’ decision to accept the Participat-

ing Pharmacy Agreement was made unilaterally by Som-

mers.

3. That at no time in making this decision whether to

accept the offered Blue Shield contract was Sommers

contacted by any representative of any other drug store

defendant in this case.

4. That Sommers has never combined and conspired

with any of the other Defendants in this cause, or with

99a

Affidavit of John Hannah

any other person, firm or entity, to fix the retail sales

price for pharmaceuticals or any othe> goods.

/s/ John Hannah

JOHN HANNAH

SWORN TO and SUBSCRIBED before me this 16th

day of April, 1976.

/s/ Katharine Nellis

KATHARINE NELLIS

Notary Public in and for

Bexar County, Texas

100a

OPINION OF UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF TEXAS, MAY 18, 1976

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

Civil Action No. SA-75-CA-131

RoyaL DruG CoMPANY d/b/a Royal Pharmacy of Castle

Hills and Disco Prescription Pharmacy, et al.

Vv.

Group LIFE AND HEALTH INSURANCE COMPANY a/k/a

Blue Shield and/or Blue Cross-Blue Shield

of Texas, et al.

June 23, 1976

Joel H. Pullen, Tinsman & Houser, Inc., San Antonio,

Tex., for plaintiffs.

Keith E. Kaiser, Cox, Smith, Smith, Hale & Guenther,

Inc., San Antonio, Tex., for Group Life and Health Ins.

Co.

Charles R. Shaddox, Groce, Locke & Hebdon, San An-

tonio, Tex., for Rieger/Medi-Save Pharmacies, Inc.

William C. Church, Jr.,. Kampmann, Church & Burns,

San Antonio, Tex., for Walgreen Texas Co.

Richard B. Moore, Gresham, Davis, Gregory, Worthy &

Moore, San Antonio, Tex., for The Sommers Drug Stores

Co.

MEMORANDUM OPINION

JOHN H. Woon, JR., District Judge.

I.

Plaintiffs in this private civil antitrust action are eigh-

teen independent pharmacy owners doing business in San

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Opinion of District Court

Antonio, Texas. Defendant Group Life and Health Insur-

ance Company, also known as Blue Shield of Texas (“Blue

Shield”), is an insurance company duly authorized by the

Texas State Board of Insurance to transact the business

of life, health and accident insurance within the State of

Texas. The remaining three Defendants, Walgreen Texas

Co. (“Walgreen”), The Sommers Drug Stores Company

(“Sommers”), and Rieger/Medi-Save Pharmacies, Inc.

(“Rieger”) operate pharmacies in San Antonio, Texas.

Plaintiffs’ suit is an attack upon Blue Shield’s plan of

operation under certain prescription drug insurance poli-

cies (the “Policy”) which it issues. It is alleged that De-

fendants have violated Section 1 of the Sherman Act, 15

U.S.C. § 1, by agreeing, combining and conspiring to fix

the retail price of drugs and pharmaceuticals, and that

the activities of Defendants have caused Blue Shield’s in-

sureds not to deal with certain of the Plaintiffs, thereby

constituting a group boycott. Plaintiffs further allege

that Defendants have violated the Texas antitrust laws,

Tex. Bus. & Comm. Code Ann. § 15.01, et seqg., and that

this Court should exercise pendent jurisdiction over those

claims.

Each of the Defendants has separately moved to dismiss

the Complaint for lack of jurisdiction over the subject

matter and for failure to state a claim upon which relief

can be granted. Defendants’ motions are based upon the

provisions of the McCarran-Ferguson Act, 15 U.S.C.

§ 1011, et seg. The motions also urge that in the absence

of any valid cause of action based upon federal law, this

Court should dismiss Plaintiffs’ pendent claims.

Extensive discovery has been completed on the issue

presently before the Court. The record includes numerous

depositions, affidavits and documents, and all parties have

had full opportunity to present all materials pertinent to

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Opinion of District Court

Defendants’ motions. The Court has carefully reviewed

and considered all of those materials, together with the

briefs submitted by the parties and the oral argument of

counsel.

The facts relevant to Defendants’ motions are undis-

puted. The Policies provide prescription drug insurance

coverage. The benefits provided under the Folicies entitle

Blue Shield’s insureds to receive prescription drugs from

any pharmacy (a “Participating Pharmacy”) that has

entered into a written contract (the “Pharmacy Agree-

ment”) with Blue Shield. The Policies further provide

that the insured is required to pay no more for each pre-

scription filled by a Participating Pharmacy than the

amount of the drug deductible set forth in the Policy. The

drug deductible is $2.00. Pursuant to the terms of the

Pharmacy Agreement, a Participating Pharmacy agrees

to dispense drugs to Blue Shield’s insureds and to accept

$2.00 as full payment from the insured for each dispensed

drug. Further, Blue Shield agrees to reimburse the Par-

ticipating Pharmacy for the acquisition cost of each drug

dispensed to its insureds. Under the terms of the Policy,

if the insured has his prescriptions filled by a pharmacy

other than a Participating Pharmacy, he must pay the

full price charged by the pharmacy and then apply to

Blue Shield for reimbursement. Blue Shield will then

reimburse the insured for 75% of the usual and custom-

ary charge for the drug, less the $2.00 deductible.

Walgreen, Sommers and Rieger each own Participating

Pharmacies. Blue Shield is not engaged in selling or dis-

pensing prescription drugs as a manufacturer, wholesaler

or retailer, but is engaged solely in transacting the busi-

ness of life, health and accident insurance.

In 1969, Blue Shield sought authority from the Texas

State Board of Insurance to begin issuing prescription

drug insurance coverage in the form described above. Ar-

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Opinion of District Court

ticle 3.42 of the Texas Insurance Code provides that all

new policy forms proposed to be issued by life, health and

accident insurance companies must be filed with the State

Board of Insurance and approved prior to issuance or use

by the company. In March, 1969, Blue Shield filed with

the State Board of Insurance a proposed form of the

Policy and the Pharmacy Agreement for approval prior

to their issuance or use. The terms of the policy provided

that Blue Shield’s insureds were entitled to receive pre-

scription drugs from Participating Pharmacies (called

“participating providers” in the Policy). The Policy de-

fined the term “participating provider” as a pharmacy

who “has entered into a written contract [with Blue

Shield] for the rendition of covered drugs for which bene-

fits are provided by this [policy].” The Pharmacy Agree-

ment was in the form described above.

In June, 1969, the Commissioner of Insurance issued a

written order disapproving the issuance or use of the

Policy. The Commissioner also notified the Texas Attor-

ney General in writing of the action taken by the State

Board and provided the Attorney General with copies of

all pertinent documents. As a result of the disapproval

order, Blue Shield did not issue or use the Policy or the

Pharmacy Agreement.

Subsequent to the issuance of the disapproval order, the

Policy and the Pharmacy Agreement remained under con-

sideration by the State Board of Insurance. In September,

1969, pursuant to Article 3.42(e) of the Texas Insurance

Code,* the Commissioner of Insurance issued another writ-

*“The Board of Insurance Commissioners may, by written order,

exempt from the requirements of this Article for so long as it

deems proper, any insurance document or form specified in such

order to which in its opinion this Article may not practicably be

applied, or the filing and approval of which are, in its opinion,

not desirable or necessary for the protection of the public.” Tex.

Ins. Code Ann. art. 3.42(e).

_— —— a

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Opinion of District Court

ten order exempting the Policy from the approval require-

ments of Tex.Ins.Code Ann. art. 3.42.

The exemption order issued by the Commissioner of

Insurance provided, in pertinent part:

“Pursuant to the authority granted by Article 3.42,

Paragraph (e) of the Texas Insurance Code, the Com-

missioner of Insurance hereby exempts from the re-

quirements of said Article Policy Form CC-OHDS-2

submitted by Group Life and Health Insurance Com-

pany, Dallas, Texas; and this exemption shall remain

effective pending further orders from the Commis-

sioner of Insurance.

“The exempt forms are described as drug service

contracts, which confer upon the policy holder the

right to obtain certain prescribed drugs at a cost fixed

in the contract, the insurer having entered into par-

ticipating agreements with dispensing pharmacies to

supply the prescribed drugs to its policy holders.”

It is clear that the exemption order exempted the Policy

from nothing more than the requirement of approval by

the State Board of Insurance. The former Deputy Com-

missioner of Insurance, who reviewed the Policy and the

Pharmacy Agreement and then prepared the exemption

order for the Commissioner’s signature, testified on oral

deposition that exempted policies are subject to all statu-

tory requirements of the Texas Insurance Code and all

regulatory requirements of the State Board of Insurance.

He further testified that exempted policies and approved

policies are subject to the same continuing regulation, con-

trol and supervision by the State Board. Other officials of

the State Board of Insurance testified on oral deposition

that exempted policies and approved policies are treated

alike within the regulatory framework of the State Board

of Insurance.

105a.

Opinion of District Court

Further, the exemption order clearly shows that the

Commissioner of Insurance considered the Pharmacy

Agreement together with the Policy prior to issuing the

exemption order. The exemption order authorized Blue

Shield to issue and use the Policy in the State of Texas in

the same manner as if it had been approved. Subsequent

to the issuance of the exemption order, the Commissioner

again advised the Texas Attorney General in writing of

his action and forwarded a copy of the exemption order

to the Attorney General. The exemption order has not

been modified or rescinded.

Thereafter, Blue Shield made a statewide mailing to

licensed pharmacies offering them the option of entering

into the Pharmacy Agreement. Subsequent to the issu-

ance of the exemption order, Blue Shield has issued the

policy to various groups and entered into the Pharmacy

Agreement with pharmacies throughout the State of

Texas.

In 1974, Blue Shield entered into a health care agree-

ment to provide insurance benefits to groups in Bexar

County, Texas. Included in the proposed coverage was

prescription drug insurance. In September, 1974, pursu-

ant to Tex.Ins.Code Ann. art. 3.42, a Policy form vir-

tually identical to the one submitted in 1969 was filed

with the State Board of Insurance for approval prior to

issuance or use in connection with the Bexar County pro-

gram. Thereafter, in October, 1974, the Commissioner of

Insurance issued a written order approving the Policy for

issuance. Since receipt of the approval order, Blue Shield

has issued the Policy to various groups in Bexar County,

Texas. Blue Shield offered to virtually all licensed phar-

macies in San Antonio, Texas, the opportunity of enter-

ing into a Pharmacy Agreement. Nine of the Plaintiffs

accepted Blue Shield’s offer and now operate Participating

Pharmacies.

106a

Opinion of District Court

Plaintiffs agree that Blue Shield is engaged in the busi-

ness of issuing prescription drug insurance coverage; how-

ever, they contend that the McCarran-Ferguson exemp-

tion is inapplicable in that Blue Shield has exceeded the

business of insurance by entering into the Pharmacy

Agreements, and that such agreements have nothing to do

with the business of insurance. Plaintiffs further contend

that regardless of whether or not Blue Shield is engaged

in the business of insurance, Walgreen’s, Sommers’ and

Rieger’s participation in the Pharmacy Agreement is not

the business of insurance.

For the reasons set forth herein, this Court does not

agree with Plaintiffs’ contentions. It is clear that the

terms of the Policies which were reviewed by the State

Board of Insurance and which it authorized Blue Shield

to issue, expressly contemplate the execution of Pharmacy

Agreements between Blue Shield and Participating Phar-

macies. Moreover, the Pharmacy Agreement is so integ-

rally related to the Policies that it would be impossible

for Blue Shield to fulfill its contractual obligations to its

insureds in the absence of such agreements.

The McCarran-Ferguson Act provides that “. . . the

Sherman Act, ... the Clayton Act, and the. . . Federal

Trade Commission Act .. . shall be applicable to the

business of insurance to the extent that such business is

not regulated by State law.” 15 U.S.C. § 1012(b). To the

extent a state regulates such business by state law, the

Sherman Act and the other federal antitrust laws are not

applicable. The exemption is effective provided that two

criteria are met: (1) that the “business of insurance” is

involved, and (2) that there is state regulation of the

business of insurance. The McCarran-Ferguson Act does

not apply to acts of “boycott, coercion or intimidation.”

15 U.S.C. § 1013 (b).

107a

Opinion of District Court

II.

THE BUSINESS OF INSURANCE

In SEC v. National Securities, Inc., 393 U.S. 453, 89

S.Ct. 564, 21 L.Ed.2d 668 (1969), the Supreme Court

held that the “business of insurance” includes the rela-

tionship between the insurer and insured; the type of

policy which could be issued, its reliability, interpretation

and enforcement; and other activities of insurance com-

panies which closely relate to their status as reliable in-

surers. Id. at 460, 89 S.Ct. 564. The Pharmacy Agree-

ment directly pertains to the relationship between Blue

Shield and its insureds. Moreover, the Pharmacy Agree-

ment is a direct contractual relationship between the in-

surer and a provider of benefits, the result of which is

simply the performance of the insurer’s obligations owed

to its insureds under the insurance contract and nothing

more. A similar direct contractual relationship was exam-

ined in Travelers Ins. Co. v. Blue Cross of West. Penn-

sylvania, 481 F.2d 80 (8rd Cir. 1973) cert. denied, 414

U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550 (1973). In that

case, the Third Circuit held that such contractual arrange-

ments constituted the business of insurance, and thus, the

relationship fell within the McCarran-Ferguson exemp-

tion. Direct contractual relationships between the in-

surer and a provider of benefits, as in this case, plainly

relate to the “relationship between insurer and insured.”

The Pharmacy Agreement is based upon the provisions

contained in the Policies relating to coverage and bene-

fits, and directly concerns matters of interpretation and

enforcement of the Policies. Clearly, the method adopted

by Blue Shield of providing benefits under the Policies is

closely connected to the relationship between Blue Shield

and its insureds. The activities challenged by Plaintiffs

in this action, including Blue Shield’s contractual arrange-

108a

Opinion of District Court

ments with Participating Pharmacies, constitute the busi-

ness of insurance within the meaning of SEC v. National

Securities, Inc., supra.

A program substantially similar in concept and opera-

tion to the one at issue was previcusly determined by the

Texas Attorney General to constitute the business of in-

surance in the State of Texas. In response to a request

for an opinion from the Texas Commissioner of Insurance,

the Attorney General analyzed a prescription drug pro-

gram which contemplated the filling of subscriber’s pre-

scriptions by participating pharmacies. The plan of oper-

ation was based upon a contract between the company

and participating pharmacies, whereby the pharmacy

agreed to charge the subscriber no more than a certain

percentage of the retail price of the prescription, and the

company agreed to reimburse the pharmacy for the re-

mainder. After thoroughly discussing the program the

Attorney General concluded that “. . . the plan of opera-

tion intended to be followed by Prepaid Prescription Plan,

Ine. would involve the doing of an insurance business in

this state”. Texas Attorney General’s Opinion No. WW-

1475 (Dec. 11, 1962).

This Court concludes that Blue Shield’s plan of opera-

tion under the prescription drug insurance Policies, in-

cluding the Pharmacy Agreements, constitutes the “busi-

ness of insurance” within the meaning of the McCarran-

Ferguson Act.

ITT.

STATE REGULATION

A. General Regulation.

The McCarran-Ferguson Act renders the federal anti-

trust laws inapplicable when state legislation generally

proscribes, permits, or otherwise regulates the conduct in

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Opinion of District Court

question and authorizes enforcement through a scheme of

administrative supervision. Crawford v. American Title

Ins. Co., 518 F.2d 217 (5th Cir. 1975) ; FTC v. National

Cas. Co., 357 U.S. 560, 78 S.Ct. 1260, 2 L.Ed.2d 1540

(1958) ; Commander Leasing Co. v. Transamerica Title

Ins. Co., 477 F.2d 77 (10th Cir. 1973).

The State of Texas has actively regulated the activities

challenged in Plaintiffs’ Complaint since the inception of

Blue Shield’s prescription drug insurance program. The

requirement of Article 3.42 of the Texas Insurance Code

that all policy forms must be filed for review and ap-

proval by the State Board of Insurance prior to issuance

or use by the insurer was fully satisfied. Active regula-

tion of the prescription drug insurance program is furth-

er shown by the written orders issued by the Commis-

sioner of Insurance and by the fact that the Texas At-

torney General was also kept fully advised of Blue

Shield’s prescription drug insurance program.

B. Regulation Of Unfair Methods Of Competition In

The Business Of Insurance.

Not only is there a scheme of general state regulation

of the business of insurance involved in this action, but

the Texas Insurance Code contains specific provisions ap-

plicable to the conduct alleged in Plaintiffs’ Complaint.

In 1951, the Texas Legislature enacted Tex.Ins.Code Ann.

art. 21.21, which expressly regulates unfair competition

and unfair practices in the business of insurance. The

declaration of purpose of the Act states:

“The purpose of this Act is to regulate trade prac-

tices in the business of insurance in accordance with

the intent of Congress as expressed in the Act of

Congress of March 9, 1945 (Public Law 15, 79th

Congress [the McCarran-Ferguson Act], by defining,

ee a ae ny eae

110a

Opinion of District Court

or providing for the determination of, all such prac-

tices in this state which constitute unfair methods of

competition or unfair or deceptive acts or practices

and by prohibiting the trade practices so defined or

determined.” Tex.Ins.Code Ann. art. 21.21 § 1.

Article 21.21 specifically prohibits “any trade practice

which is defined in [the] Act as, or determined pursuant

to [the] Act to be, an unfair method of competition or un-

fair or deceptive act or practice in the business of insur-

ance.” Tex.Ins.Code Ann. art. 21.21 §3. (Emphasis

added) That statute grants specific administrative and

supervisory powers to the State Board of Insurance, in-

cluding the power to issue cease and desist orders. Pen-

alties are provided for violation of such orders. With-

out doubt, the phrase “any” unfair method of competition

encompasses the conduct challenged in this action. Furth-

ermore, the oral deposition testimony establishes that

the State Board of Insurance reviews all policy forms

submitted to it with a view toward insuring compliance

with Article 21.21, and that approved, as well as exempt-

ed policies, are subject to its provisions. Article 21.21

was specifically intended by its drafters to respond to

the invitation of the McCarran-Ferguson Act and to

withdraw from federal control the very conduct charged

by Plaintiffs in this action, and to place such conduct

under state control. Article 21.21 constitutes sufficient

state regulation to activate the exemption provided in the

McCarran-Ferguson Act. Crawford v. American Title

Ins. Co., 518 F.2d 217 (5th Cir. 1975) ; Dexter v. Equit-

able Life Assurance Soc’y of the U. S., 527 F.2d 233

(2nd Cir. 1975).

C. The Texas Antitrust Laws.

In addition to the comprehensive regulation of Blue

Shield’s activities provided by the Texas Insurance Code,

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Opinion of District Court

anticompetitive practices in the business of insurance are

also regulated by the Texas antitrust laws. The Texas

antitrust laws declare categorically that “[e]very monop-

oly, trust, and conspiracy in restraint of trade. . . ‘s il-

legal and prohibited.” Tex.Bus. & Comm. Code Ann.

§ 15.04(a). Further, the Texas antitrust laws specific-

ally prohibit conspiracies of the type alleged in Plaintiff’s

Complaint. Tex.Bus. & Comm.Code Ann. § 15.02. It

should be noted that Plaintiffs have included in their

Complaint a pendent claim under the Texas antitrust

laws based upon the same facts that Plaintiffs allege

give rise to a violation of the federal antitrust laws.

The existence of a state antitrust law proscribing the

conduct complained of constitutes “regulation” within the

meaning of the McCarran-Ferguson Act sufficient to dis-

place the federal antitrust laws. Meicler v. Aetna Cas.

and Sur. Co., 506 F.2d 732 (5th Cir. 1975); Sanborn v.

Palm, 336 F.Supp. 222 (S.D.Tex.1971); Transnational

Ins. Co. Vv. Rosenlund, 261 F.Supp. 12 (D.Ore.1966) ;

California League of Ind. Ins. Producers v. Aetna Cas.

& Sur. Co., 175 F.Supp. 857 (N.D.Cal.1959).

Therefore, in addition to active regulation under the

Texas Insurance Code, the existence of state antitrust

statutes forbidding the conduct alleged by Plaintiffs con-

stitutes state regulation of the business of insurance suf-

ficient to bar application of the federal antitrust laws.

IV.

THE BoyYcoTT EXCEPTION TO THE MCCARRAN-FERGUSON

Act Is INAPPLICABLE

As in Meicler v. Aetna Cas. and Sur. Co., supra, Plain-

tiffs attempt to avoid the effect of the McCarran-Fergu-

son exemption by relying on the Section 1013(b) boycott

exception. Plaintiffs’ reliance on this exception is mis-

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Opinion of District Court

placed. The courts have narrowly construed Section 1013

(b), which provides:

“Nothing contained in this chapter shall render said

Sherman Act inapplicable to any agreement to boy-

cott, coerce, or intimidaie, or act of boycott, coercion

or intimidation.” 15 U.S.C. § 1013(b).

The sole purpose of this exception is to protect against

the issuance of black-lists naming insurance companies or

agents, rather than the conduct alleged by Plaintiffs in

this action.

In Meicler, the Court stated:

“As the district court noted, the legislative history

indicates that the boycott exception was designed to

reach insurance company ‘black-lists’ rather than re-

fusal to sell to a particular segment of the public at

other than a specified price. (Citations omitted) Ap-

pellants’ broad construction of Se

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