McGraw

CHARLESTON – Owners of Rite Aid stores moved on Oct. 9 to dismiss a suit from Attorney General Darrell McGraw claiming they overcharge for generic drugs.

Rite Aid lawyer Webster Arceneaux of Charleston wrote to U.S. District Judge John Copenhaver that McGraw's complaint didn't identify specific drugs or transactions.

"In fact, the State does not even identify one instance in which a Rite Aid customer was purportedly overcharged," he wrote.

He wrote that McGraw failed to allege a single failure to pass on to a customer the savings from substitution of a generic drug for a prescription drug.

He called McGraw's allegations "speculation and legal conclusions which are not entitled to a presumption of truth."

He wrote that the only basis for the allegations was a quote from an annual report of Rite Aid's parent corporation on aggregate national generic drug profits.

"These statements fail to meet, let alone pass, a plausibility requirement," he wrote.

He wrote that McGraw didn't allege how concealment or deception took place, when it took place, who did it, what it consisted of, or where it occurred.

He wrote that West Virginia's pharmacy board, responsible for protecting consumers, has not found any violation by Rite Aid.

McGraw sued Rite Aid in Boone Circuit Court on July 23, seeking civil penalties, restitution and disgorgement.

He designated Charleston lawyers Brian Glasser, John Barrett, Michael Murphy, Joshua Barrett and Sean McGinley as special assistants.

Rite Aid removed the suit to federal court, arguing that McGraw raised issues under federal Medicaid law.

For McGraw, Barrett asked Copenhaver to remand it to Boone County. The suit didn't mention Medicaid, Barrett wrote.

"Each claim arises solely under state law," Barrett wrote.

For Rite Aid, Arceneaux defended removal on Sept. 29.

"While the State has artfully drafted its complaint to not include the word 'Medicaid' in the hope of avoiding a federal forum, it cannot escape the fact that regardless of how it couches its claims, federal issues pervade this litigation," he wrote.

Copenhaver set a Nov. 9 deadline for a reply from McGraw.

U.S. Magistrate Judge Mary Stanley, managing discovery for Copenhaver, plans an Oct. 29 scheduling conference.

McGraw has separately filed a similar suit against other drug stores.

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