MADISON - A Memorandum in Support of the Kroger Co.'s Motion to Dismiss the Second Amended Complaint has been filed in a lawsuit against CVS Pharmacy Inc. and others by former Attorney General Darrell V. McGraw Jr.

Kmart Holding Corporation; the Kroger Corporation; Wal-Mart Stores Inc.; Walgreen Co.; and Target Stores Inc. were also named as defendants in the suit.

The memorandum was filed Nov. 2 in Boone Circuit Court.

The West Virginia Pharmacy Act provides a comprehensive scheme for the regulation of the practice of pharmacy in West Virginia, including pricing of generic drugs substituted for name brand prescription medications in direct-to-consumer transactions, according to the memorandum.

In this case, McGraw "seeks to bypass that comprehensive statutory scheme and, in the process, impinge upon the authority that the West Virginia Legislature delegated to the West Virginia Board of Pharmacy...to enforce the Pharmacy Act's provisions, all in violation of what our Supreme Court has described as 'fundamental law,'" the memorandum states.

The memorandum says the Legislature delegated no authority to McGraw to interpret or enforce the provisions of the Pharmacy Act.

The Court granted Kroger's motion.

In the complaint, McGraw claimed the pharmacy companies violated the West Virginia Consumer Credit and Protection Act by regularly overcharging for generic drugs.

McGraw was seeking a jury to bring injunctive relief against the six defendants and determine awards for civil penalties, restitution and disgorgement. He was represented by Francis A. Hughes of the Office of the Attorney General; Brian A. Glasser, John W. Barrett and Michael L. Murphy of Bailey & Glasser LLP; and Joshua I. Barrett and Sean P. McGinely of DiTrapano, Barrett & DiPiero LLC.

Kroger was represented by W. Henry Jernigan Jr., Jill C. Rice and Tyler Williams of Dinsmore & Shohl LLP.

Other attorneys who represented the pharmacy companies were Pamela C. Deem and Bryant J. Spann of Guthrie & Thomas PLLC; Jill M. Wheaton and Todd G. Gattoni of Dykema PLLC; Wendy J. Wildung, Craig S. Coleman and Joseph A. Herriges; Robert H. Griffith and David B. Goroff of Foley & Lardner LLP; David Allen Barnette of Jackson Kelly PLLC; and Susan C. Wittemeir and Johnny M. Knisely II of Goodwin & Goodwin LLP.

Boone Circuit Court case number: 09-C-226

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