Rochester Drug Co-Operative, Inc. v. Abbott Laboratories

Memorandum in Opposition to Abbott's Supplemental Brief in Support of Its Omnibus Motion to Dismiss

N.D. Cal.March 20, 2008

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Joseph R. Saveri (State Bar No. 130064) Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: jsaveri@lchb.com Local Counsel for Rochester Drug Cooperative, Inc. IRELL & MANELLA LLP Alexander Frank Wiles (CA 73596) Brian Hennigan (CA 86955) Stephanie Kaufman (CA 162644) Trevor Stockinger (CA 226359) 1800 Avenue of the Stars #900 Los Angeles, CA 90067 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Email: awiles@irell.com; bhennigan@irell.com skaufman@irell.com; tstockinger@irell.com Counsel for SmithKline Beecham Corporation, dba GlaxoSmithKline [Additional Attorneys and Plaintiffs on Signature Page] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION SAFEWAY INC.; WALGREEN CO.; THE KROGER CO.; NEW ALBERTSON’S, INC.; AMERICAN SALES COMPANY, INC.; and HEB GROCERY COMPANY, LP, Plaintiff, vs. ABBOTT LABORATORIES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C07-5470 (CW) Related per October 31, 2007 Order to Case No. C-04-1511 (CW) PLAINTIFFS’ OPPOSITION TO ABBOTT’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS OMNIBUS MOTION TO DISMISS Date: March 6, 2008 Time: 2:00 p.m. Courtroom: 2 (4th Floor) Judge: Hon. Claudia Wilken Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 1 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS SMITHKLINE BEECHAM CORPORATION d/b/a/ GLAXOSMITHKLINE, Plaintiff, vs. ABBOTT LABORATORIES, Defendant. MEIJER, INC. & MEIJER DISTRIBUTION, INC., on behalf of themselves and all others similarly situated, Plaintiffs, vs. ABBOTT LABORATORIES, Defendant. ROCHESTER DRUG CO-OPERATIVE, INC., on behalf of itself and all others similarly situated, Plaintiff, vs. ABBOTT LABORATORIES, Defendant. LOUISIANA WHOLESALE DRUG COMPANY, INC., on behalf of itself and all others similarly situated, Plaintiff, vs. ABBOTT LABORATORIES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C07-5702 (CW) Related per November 19, 2007 Order to Case No. C-04-1511 (CW) PLAINTIFFS’ OPPOSITION TO ABBOTT’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS OMNIBUS MOTION TO DISMISS Date: March 6, 2008 Time: 2:00 p.m. Courtroom: 2 (4th Floor) Judge: Hon. Claudia Wilken Case No. C 07-5985 CW PLAINTIFFS’ OPPOSITION TO ABBOTT’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS OMNIBUS MOTION TO DISMISS Date: March 6, 2008 Time: 2:00 p.m. Courtroom: 2 (4th Floor) Judge: Hon. Claudia Wilken Case No. C 07-6010 CW PLAINTIFFS’ OPPOSITION TO ABBOTT’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS OMNIBUS MOTION TO DISMISS Date: March 6, 2008 Time: 2:00 p.m. Courtroom: 2 (4th Floor) Judge: Hon. Claudia Wilken Case No. C 07-6118 CW PLAINTIFFS’ OPPOSITION TO ABBOTT’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS OMNIBUS MOTION TO DISMISS Date: March 6, 2008 Time: 2:00 p.m. Courtroom: 2 (4th Floor) Judge: Hon. Claudia Wilken Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 2 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS RITE AID CORPORATION; RITE AID HDQTRS, CORP,; JCG (PJC) USA, LLC; MAXI DRUG, INC. d/b/a BROOKS PHARMACY; ECKERD CORPORATION; CVS PHARMACY, INC.; and CAREMARK, L.L.C., Plaintiff, vs. ABBOTT LABORATORIES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C07-6120 (CW) Related per December 5, 2007 Order to Case No. C-04-1511 (CW) PLAINTIFFS’ OPPOSITION TO ABBOTT’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS OMNIBUS MOTION TO DISMISS Date: March 6, 2008 Time: 2:00 p.m. Courtroom: 2 (4th Floor) Judge: Hon. Claudia Wilken Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 3 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS INTRODUCTION Plaintiffs jointly submit this brief in response to issues raised by the Court at oral argument and by Abbott in its Supplemental Brief in Support of its Omnibus Motion to Dismiss. The fundamental distinction between this case and Cascade Health Solutions v. PeaceHealth, 515 F. 3d 883 (9th Cir. 2008), is the one described in Plaintiffs’ initial briefs: Plaintiffs in this case are complaining about high prices, not about low prices. Plaintiffs allege that Abbott used a massive price hike on Norvir to handicap its competitors’ efforts to sell complementary products that compete with Abbott’s combination pill, Kaletra. Abbott does not stand accused of violating the antitrust laws because it discounted one of its products -- there was no discount -- but because it massively raised the price it charged for Norvir.1 Abbott argues that, because it did not raise its price of Kaletra (a product which contains the active ingredient in Norvir), this case is about the economic effect of low prices. Abbott concedes, as it must, that Plaintiffs can state a claim under the holding of Cascade by alleging that Abbott’s pricing would prevent an equally efficient competitor from making a profit on additional sales after matching the imputed price of the competitive Abbott product.2 Sometime later in this litigation the Court may need to decide whether Cascade abrogated all other formulations of § 2 violations where pricing is involved -- whether, as Abbott contends, meeting that test is necessary to establish antitrust liability; or, as Plaintiffs contend, meeting it is 1 Thinking that if it just says something often enough, it will become true, Abbott tells this Court (Br. at 2) that “there is no relevant distinction between this case and Cascade. Both cases involve a defendant offering a purportedly ‘much lower price’. . . .” This is neither what the complaints allege nor what the facts are. Abbott has taken a massive price increase on Norvir. It has left the Kaletra price unchanged. There is no lower price, let alone a much lower one. 2 Plaintiffs in Meijer have clearly alleged that Abbott is liable even under this standard. All of the other plaintiffs likewise believe that this test can be satisfied, if necessary. Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 4 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS sufficient, but not necessary.3 Abbott inappropriately asks the Court to resolve this issue without regard to the unique circumstances of the pharmaceutical industry, and to resolve it now -- without the benefit of factual development and expert economic testimony. The Supreme Court has made clear that courts must “resolve antitrust claims on a case-by-case basis, focusing on the ‘particular facts disclosed by the record.’” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 467 (1992) (quoting Maple Flooring Mfrs. Ass’n v. United States, 268 U.S. 563, 579 (1925)). The economic effect of conduct can be determined only by a fact-intensive inquiry that is attuned to the “economic context,” including the “particular structure and circumstances of the industry at issue.” Verizon Comm.’s Inc. v. Law Off. of C. V. Trinko, 540 U.S. 398, 411 (2004). ARGUMENT As the Court suggested at oral argument, the particular structure and circumstances of the pharmaceutical industry must be considered in determining the application of Cascade to this case. First, Cascade assumes that a monopolist’s above-cost price reductions can and should be met with similar price cuts by its competitors, all to the good of consumers/purchasers. See Cascade, 515 F.3d at 896. But here Abbott’s pricing action was dramatic in that word’s root sense -- Abbott intended its 400% price increase to demonstrate to competitors that Abbott could and would raise Norvir’s price at any time, making it futile for competitors in the boosted market to try to compete with Kaletra on price. Abbott’s message-sending pricing said to its competitors, in effect, “If you try to compete against Kaletra on price, we will raise the Norvir price even 3 For example, the court in Kodak approved a jury instruction that, “It is unlawful…for a monopolist to engage in conduct, including refusals to deal, that unnecessarily excludes or handicaps competitors in order to maintain a monopoly.” Image Tech. Services, Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1209 (9th Cir. 1997) (emphasis in original). Kodak in turn relied upon a very similar jury instruction that the Supreme Court approved in Aspen Skiing, Co. v. Aspen Highlands Skiing Corp., 472 U.S 585, 597 (1985) (“We are concerned with conduct which unnecessarily excludes or handicaps competitors. This is conduct which does not benefit consumers by making a better product or service available -- or in other ways -- and instead has the effect of impairing competition.”). In the circumstances alleged here, where a high price in one market is used to handicap competitors in another, these instructions provide a basis on which Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 5 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS higher.” Far from stimulating rivals to reduce their own prices, Abbott’s dramaturgical price increase on Norvir had the intended effect of stifling price competition by its boosted rivals. Second, Abbott’s increase in the price of Norvir, instead of a reduction in the price of Kaletra, strategically used government regulations to eliminate rivals’ incentives to discount their products. Intricate rules lay out the rebates that a drug company must pay on drugs dispensed to Medicaid recipients and patients who have the benefit of ADAP (AIDS Drug Assistance Programs) or similar government programs. For example, the government pricing rule known as “Best Price,” see 42 U.S.C. § 1396r-8(c)(1)(A), (C), provides that, if a drug manufacturer makes a price concession to any customer, it must cut price in the same amount to government programs. Thus, if GSK or another Abbott competitor gave a rebate to private-sector customers to offset the roughly $13 per day increase in the price of Norvir, it would have to give the same discount to government programs, even though Abbott could not impose its massive price hike on the government. In other words, to remain competitive in the private-payer segment of the market, GSK would have to absorb a $13 price cut in that segment plus a $13 price cut in the government sector, where it was already price competitive. Thus, Abbott’s strategic decision to increase the price of Norvir, rather than cut the price of Kaletra, would have required rivals seeking to match Kaletra’s price to take a $26 hit to gain sales on products previously priced at around $16 -- something that no rational profit-maximizer would or could do. Moreover, we believe that discovery will show that Abbott avoided the Best Price trap that it created for its rivals by telling the federal pricing authorities that Kaletra is a single product whose price had not changed at all. By raising Norvir’s price while telling the federal agencies that it had not reduced Kaletra’s price, Abbott prevented its rivals from matching Kaletra’s price. a jury can find the defendant to have engaged in anti-competitive conduct just as occurred in Kodak and Aspen Skiing. Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 6 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS By telling this Court the opposite -- that increasing Norvir’s price was the equivalent of cutting Kaletra’s -- Abbott seeks to avoid the legal consequences of that anticompetitive conduct. The facts of this particular case and this particular industry refute Abbott’s assertion that a price increase on Norvir was the equivalent of a price reduction on Kaletra. The latter would have stimulated the responsive price reductions that are the foundation of Cascade; the former forestalled them. At a minimum, the choice of the appropriate rule of antitrust liability here should await discovery on how Abbott’s message-sending pricing and strategic use of government regulations in fact affected the incentives of market participants, and should be informed by briefing that rests on expert reports on the economic significance of those facts. Third, this case involves differentiated products. The Cascade rule assumes that an “equally efficient producer” of the defendant’s products could profitably sell the products if that competitor had the defendant’s cost structure. Cascade, 502 F.3d at 914, 916.4 In assuming that an equally efficient competitor could achieve the same cost structure as the defendant, the Cascade test necessarily assumes that the competitor and defendant are producing the same products.5 The extent to which products are differentiated and the impact of that differentiation on the Cascade test are subject to factual development and expert testimony. Fourth, the importance of research and development to the pharmaceutical industry may well affect the application of Cascade to the facts of this case. R&D costs in the pharmaceutical industry are large relative to other industries, creating substantial barriers to entry, and thus 4 The Meijer plaintiffs believe, as does Defendant, that the Cascade rule provides a bright line formula where the Defendant can be liable if an equally efficient competitor is prevented from making a profit on additional sales after matching the imputed price of the competitive Abbott product. Like all of the plaintiffs here, the Meijer plaintiffs disagree, however, that Cascade is the exclusive basis for antitrust liability in a Section 1 case involving pricing. 5 Abbott is mistaken in contending that Plaintiffs’ allegations regarding market definition are somehow inconsistent with the Court’s observation that HIV drugs are not “fungible.” Products need not be “fungible” in order to be in the same relevant market for analyzing a particular claim. They must be economic substitutes. See, e.g., SmithKline Corp. v. Eli Lilly & Co., 575 F.2d 1056, 1063-65 (3d Cir. 1978) (finding that relevant product market consisted of approximately ten cephalosporin antibiotics and their generic equivalents). Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 7 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS making the risk significantly greater here that applying Cascade’s stringent bright-line test would allow anti-competitive behavior to escape scrutiny. And, unlike in other industries, competitors in the pharmaceutical industry face very significant ongoing R&D costs on products that they have already developed. They routinely incur these costs, for example, to get approval for new indications, to change the FDA-approved label, and for a myriad of other reasons. See Congressional Budget Office, Research and Development in the Pharmaceutical Industry, Ch. 2 p. 8 (Oct. 2006) (nearly 20% of reported R&D expenditures are for postmarketing activities). The Cascade court had no occasion to consider how ongoing R&D costs would impact its cost-based analysis. Moreover, as discussed at oral argument, Abbott would have been required to spend millions of dollars on drug development and regulatory approval to sell lopinavir separately, something that it would be required to do for its conduct here to be “bundled discounting,” i.e., “offering for a single price, two…goods that could be sold separately.” Cascade, 515 F.3d at 894. Similarly, Cascade had no occasion to consider whether the costs the defendant avoided by never in fact seeking to sell separately the second product in a bundle should be counted against the imputed price of that product. Clearly, expert economic testimony will be required to determine the effect of these unique aspects of R&D expenses on the Cascade analysis. CONCLUSION Abbott cannot avoid liability under the antitrust laws for its conduct because Plaintiffs, if necessary, can satisfy the Cascade test that Abbott says is the exclusive means of establishing antitrust liability. The instant motion should be denied because a decision by this Court on the question of whether satisfying the Cascade test is necessary or merely sufficient must await the development of a factual record, supported by expert analysis, that takes into account the unique aspects of the pharmaceutical industry and the particular facts of this case. Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 8 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS Dated: March 20, 2008 Respectfully submitted, LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP By /s/ Joseph R. Saveri_____________ Joseph R. Saveri (State Bar No. 130064) Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: jsaveri@lchb.com Local Counsel for Rochester Drug Cooperative, Inc. IRELL & MANELLA LLP By /s/ Alexander Frank Wiles__________ Alexander Frank Wiles (CA 73596) Brian Hennigan (CA 86955) Stephanie Kaufman (CA 162644) Trevor Stockinger (CA 226359) 1800 Avenue of the Stars #900 Los Angeles, CA 90067 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Email: awiles@irell.com; bhennigan@irell.com skaufman@irell.com; tstockinger@irell.com Counsel for SmithKlineBeecham Corp. d/b/a GlaxoSmithKline DILLINGHAM & MURPHY, LLP By /s/ Barbara Lynn Harris Chiang_____ William Francis Murphy Email: wfm@dillinghammurphy.com Barbara Lynne Harris Chiang Email: bhc@dillinghammurphy.com Edward Eldon Hartley Email: eeh@dillinghammurphy.com 225 Bush Street, Sixth Floor San Francisco, CA 94104-4207 Telephone: (415) 397-2700 Facsimile: (415) 397-3300 Local Counsel for Safeway Inc., et al., and Rite Aid Corp., et al. Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 9 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS BERGER & MONTAGUE, P.C. Eric L. Cramer, Pro Hac Vice Email: ecramer@bm.net Daniel Berger Email: danberger@bm.net David F. Sorensen Email: dsorensen@bm.net 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 Lead Counsel for Rochester Drug Cooperative, Inc. GARWIN GERSTEIN & FISHER, LLP Bruce E. Gerstein, Pro Hac Vice Email: bgerstein@garwingerstein.com Noah H. Silverman, Pro Hac Vice Email: nsilverman@garwingerstein.com 1501 Broadway, Suite 1416 New York, New York 10036 Telephone: (212) 398-0055 Facsimile: (212) 764-6620 Lead Counsel for Louisiana Wholesale Drug Co., Inc. SPIEGEL LIAO & KAGAY, LLP Charles M. Kagay (State Bar No. 73377) Email: cmk@slksf.com Wayne M. Liao (State Bar No. 66591) Email: wml@slksf.com 388 Market Street, Suite 900 San Francisco, California 94111 Telephone: (415) 956-5959 Facsimile: (415) 962-1431 Local Counsel for Plaintiff Louisiana Wholesale Drug, Co. Inc. KAPLAN FOX & KILSHEIMER LLP Laurence D. King (SBN 206423) Email: lking@kaplanfox.com Linda M. Fong (SBN 124232) Email: Ifong@kaplanfox.com 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 10 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS Robert N. Kaplan, Pro Hac Vice Email: rkaplan@kaplanfox.com Linda P. Nussbaum, Pro Hac Vice Email: lnussbaum@kaplanfox.com 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 Lead Counsel for Meijer, Inc. and Meijer Distribution, Inc. Additional Counsel for Plaintiffs (Client Not Specified): ODOM & DES ROCHES, LLP John Gregory Odom, Pro Hac Vice Email: greg@odrlaw.com Stuart E. Des Roches, Pro Hac Vice Email: stuart@odrlaw.com John Alden Meade, Pro Hac Vice Email: jmeade@odrlaw.com. Suite 2020, Poydras Center 650 Poydras Street New Orleans, LA 70130 Telephone: (504) 522-0077 Facsimile: (504) 522-0078 PERCY SMITH & FOOTE, LLP David P. Smith, Pro Hac Vice Email: dpsmith@psfllp.com W. Ross Foote, Pro Hac Vice Email: rfoote@psfllp.com 720 Murray Street P.O. Box 1632 Alexandria, LA 71309 Telephone: (318) 445-4480 Facsimile: (318) 487-1741 KOZYAK TROPIN & THROCKMORTON Tucker Ronzetti, Pro Hac Vice Email: tr@kttlaw.com Adam Moskowitz, Pro Hac Vice Email: amm@kttlaw.com 2800 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2335 Telephone: (305) 372-1800 Telecopier: (305) 372-3508 Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 11 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 9 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS AUBERTINE DRAPER ROSE, LLP Andrew E. Aubertine, Pro Hac Vice Email: aa@adr-portland.com 1211 SW Sixth Avenue Portland, Oregon 97204 Telephone: (503) 221-4570 Facsimile: (503) 221-4590 LAW OFFICES OF JOSHUA P. DAVIS Joshua P. Davis (State Bar No. 193254) Email: davisj@usfca.edu 437A Valley Street San Francisco, CA 94131 Telephone: (415) 422-6223 VANEK, VICKERS & MASINI, P.C. Joseph M. Vanek, Pro Hac Vice Email: jvanek@vaneklaw.com David P. Germaine, Pro Hac Vice Email: dgermaine@vaneklaw.com 111 South Wacker Drive, Suite 4050 Chicago, IL 60606 Telephone: (312) 224-1500 Facsimile: (312) 224-1510 SPERLING & SLATER Paul E. Slater, Pro Hac Vice Email: pes@sperling-law.com 55 West Monroe Street, Suite 3200 Chicago, Illinois 60603 Telephone: (312) 641-3200 Facsimile: (312) 641-6492 KENNY NACHWALTER, PA Lauren C. Ravkind Scott Eliot Perwin Email: sperwin@kennynachwalter.com One Congress Plaza 111 Congress Avenue Suite 1060 Austin, TX 78701 Telephone: (512) 480-802 ARNOLD & PORTER Kenneth A. Letzler, Pro Hac Vice Email: Kenneth_Letzler@aporter.com 555 Twelfth Street, NW Washington, DC 20004-1206 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 12 of 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - PLAINTIFFS’ SUPPLEMENTAL OPPOSITION TO ABBOTT’S MOTION TO DISMISS HANGLEY ARONCHICK SEGAL & PUDLIN Steve D. Shadowen Email: sshadowen@hangley.com Monica L. Rebuck Email: mrebuck@hangley.com 30 North Third Street, Suite 700 Harrisburg, PA 17101-1701 Telephone: (717) 364-1007 Facsimile: (717) 362-1020 I hereby attest that I have on file all holograph signatures for any signatures indicated by a “conformed” signature (/s/) within this efiled document. Case 4:07-cv-06010-CW Document 41 Filed 03/20/2008 Page 13 of 13