CHARLESTON -– West Virginia Attorney General Darrell McGraw and five private lawyers accuse Rite-Aid and other pharmacies of overcharging for generic drugs.

McGraw and the five sued Rite-Aid in Boone Circuit Court on July 23, seeking civil penalties, restitution and disgorgement. A few weeks later, McGraw's office filed a similar suit against CVS, Kmart, Kroger, Wal-Mart, Walgreen's and Target. It was filed Aug. 10, also in Boone County.

In August, Rite-Aid removed its suit to U.S. District Court in Charleston. And on Sept. 1, McGraw moved to remand it to Boone County.

District Judge John Copenhaver must decide where the suit belongs.

John Barrett, Brian Glasser and Michael Murphy -- all of Bailey and Glasser in Charleston -- acted as special assistant attorney generals in suing Rite-Aid.

Joshua Barrett and Sean McGinley, both of DiTrapano, Barrett and DiPiero in Charleston, also acted as special assistants.

They claimed Rite-Aid violates state law that requires pharmacies to pass on to customers all savings from substitution of generic drugs for brand name drugs.

They also alleged violations of state consumer protection law.

Rite-Aid lawyer Webster Arceneaux III of Charleston responded by removing the case to federal court, arguing that it involved federal Medicaid funds.

He wrote that similar claims were pending against pharmacy companies in state courts of Michigan and Minnesota, and he added that those have been or will be removed.

John Barrett responded for McGraw that "this case has absolutely nothing whatsoever to do with Medicaid."

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

He wrote that no federal claims or programs are implicated and no federal law supplies the basis for any element of the state's claims.

"The complaint makes no mention of Medicaid," he wrote. "It was not filed on behalf of the state agency responsible for Medicaid, does not state any claim for Medicaid fraud and abuse, and was not brought under the Attorney General's statutory authority to bring such claims."

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