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P.O.

Box 10841
Eugene, Oregon 97440
p/f: 541.257.8878
info@t1df.org
November 6, 2018 www.t1df.org


Deputy Attorney General James Canaday Sent via email:
Office of Minnesota Attorney General james.canaday@ag.state.mn.us
445 Minnesota Street, Suite 1400
St. Paul, MN 55101

RE: Insulin Pricing Litigation, Civil Action No. 17-699 (BRM)(LHG)
Minnesota AG's duty to disclose conflict with unrepresented party under Rule 4.3 of the
Minnesota Rules of Professional Conduct

Mr. Canaday,

It is my understanding that you plan to appear in person on behalf of the State of Minnesota
at the November 6 Case Management Conference in In Re Insulin Pricing Litigation (No. 17-
cv-699 (BRM) (LHG)). Tomorrow, prior or during the Case Management Conference, I expect
that you will, prior to your appearance, cure your breach of Rule 4.3 of the Minnesota Rules of
Professional Conduct, among others.

As an attorney barred in the State of Minnesota, you are required to comply with Rule 4.3
of the Minnesota Rules of Professional Conduct. I am, as you must know, an unrepresented party
in the above-mentioned matter. When the State of Minnesota informed the Court on October 17,
2018, of its intention to appear at this CMC, attorneys for the State were under an affirmative
duty to disclose any adverse interests to me, that the State knew of or should reasonably have
known of following a two-year investigation into the price of insulin. A cursory review of the
docket of in In Re Insulin Pricing Litigation should have been sufficient to put attorneys for the
State on notice that siding with interim co-lead counsel's ‘manufacturer-only’ litigation track
would be adverse to my interests. You have, to date, failed to disclose the State’s adverse
interests.

On October 16, 2018, Minnesota filed a copycat ‘manufacturer-only’ lawsuit against three
insulin manufacturers. According to the State’s own admission, in a letter of October 17, 2018,
addressed to the Court (ECF 224 in In Re Insulin Pricing Litigation) "the State's legal theories
are, as a general matter, similar to those of the private [manufacturer-only] class.” Contrary to
allegations contained in that letter, your case brings little, if any, additional factual information
that is not already publicly available. More specifically, the State’s complaint makes misleading

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and incomplete statements that are equivalent to affirmative misrepresentations. For example, the
State asserts that health plans in Minnesota “are unaware that the net price they (i.e., the health
plan) pay same net price for Defendants’ analog insulin products has hardly changed.” [sic, p.
22] and that insurers “often do not know the total rebate the PBM has negotiated and receives
from a manufacturer.” [p. 14] The state also asserts: “Many Minnesota patients have health
insurance that requires them to pay coinsurance out-of-pocket when they fill a prescription.
Typically, the amount the patient must pay is calculated as a percentage of a price that is based
on the drug’s list price. The amount that those patients pay, as a result, is inflated.” [p. 31] This
last statement merely documents that the state is aware that health insurance companies are
misleading Minnesota’s insurance-buying public and overcharging individuals who use insulin—
charging a de facto condition-specific additional premium. By failing properly to identify this
unlawful overcharging as a discretionary action of Minnesota health insurance companies, taking
place with the implied approval of Minnesota’s insurance commissioner, the lawsuit filed by the
State of Minnesota misleads the insurance-buying public, as well as the Court.

Your allegations are therefore adverse to my ongoing attempt, since March 2017, to initiate
a payer/insurer litigation track against the parties actually responsible for the injuries caused to
insulin-buying residents of Minnesota, i.e. public and private payers, insurers and their PBM
agents/subsidiaries. The State of Minnesota is, at a minimum, a co-conspirator in such a
litigation track, since the injurious rebate pumping/capture scheme has been ongoing for over a
decade with the actual knowledge and complicity of Minnesota's insurance commissioner. We
may eventually learn that the State of Minnesota has also derived direct financial benefit from
the rebate-pumping/capture scheme in the form of inflated gross Medicaid expenditures
submitted as the basis of FMAP reimbursement (while manufacturer rebates are accounted by the
State as general revenues instead of price offsets to Medicaid prescription drugs expenditures).

A cursory review of the docket would have put any attorney on notice that the filing of a
copycat lawsuit in support of interim co-lead counsel’s manufacturer-only allegations is adverse
to the interests of the unrepresented parties seeking the opening of a payer litigation track, i.e.,
myself individually and the Type 1 Diabetes Defense Foundation. The fact that I am aware of
this conflict does not excuse your non-compliance with RPC Rule 4.3. In addition to Rule 4.3,
mentioned above, the State’s Attorney General has been breaching Rules 3.1, 3.3, 4.1, 4.4, and
8.4(c) of Minnesota Rules of Professional Conduct. The filling of a copycat lawsuit at such a late
stage of this litigation was also frivolous, disruptive and apparently politically motivated (an
unallowable purpose under Rule 16)—any claim I have against interim co-lead counsel may now
extend to attorneys for the State of Minnesota and their local counsel.

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Tomorrow, prior or during the Case Management Conference, I expect that you will, prior
to your appearance, cure your breach of RPC Rule 4.3, and fully disclose the parties/interests that
the Attorney General actually represents in this litigation, including but not limited to its
insurance commissioner, 340B hospitals, public/private payers, employer plans, the State of
Minnesota as the regulator of the insurance industry that has condoned, for over a decade,
injurious and discriminatory insurance practices, and the State of Minnesota as a payer that has
profited from the same or related discriminatory and injurious practices at the expense of
individuals who require insulin to live.

Regards,

Julia Boss, individually and on behalf of
T1DF (pro se appearance pending)
cc: Counsel of Record.

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