United States District Court, E.D. Pennsylvania
August 2, 2004.
BRADY ENTERPRISES, INC.; CHARLOTTE J. LOPACKI, d/b/a BUDGET DRUG and HERITAGE PHARMACY, INC.; On Behalf of themselves and all others similarly situated, and the PHARMACY FREEDOM FUND and NATIONAL COMMUNITY PHARMACISTS ASSOCIATION
MEDCO HEALTH SOLUTIONS, INC. and MERCK & CO., INC.
The opinion of the court was delivered by: JOHN FULLAM, Senior District Judge
MEMORANDUM AND ORDER
Defendants have filed motions to dismiss in this antitrust
case. Most of the issues involved have recently been decided by
my colleague Judge Robreno in his March 2, 2004 ruling in
Bellevue Drug Co. v. Advance PCS, C.A. No. 03-4731 (E.D. Pa.
March 2, 2004). I agree with Judge Robreno's rulings, and see no
need to repeat that discussion here.
With respect to the issues not addressed in the Bellevue Drug
Co. opinion, I have concluded as follows: BFF and NCPA do have
standing to seek declaratory and injunctive relief under § 16 of
the Clayton Act. See Hunt v. Washington State Apple
Advertising Com., 432 U.S. 333, 343 (1977); Pennsylvania
Psychiatric Soc'y v. Green Spring Health Servs., 280 F.3d 278
(3d Cir. 2002). I further conclude that the averments of the complaint with respect to the parental control of Merck & Co.,
Inc. over the defendant Medco Health Solutions, Inc. are, as a
matter of pleading, sufficient to withstand dismissal under Fed.
R. Civ. P. 12(b)(6).
An order follows. ORDER
AND NOW, this day of August 2004, upon consideration of
defendants' motions to dismiss, and plaintiffs' response, IT IS
1. That the motions of the defendants Medco Health Solutions,
Inc. and Merck & Co., Inc. to dismiss plaintiffs' complaint are
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