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J. TYPE 1 DIABETES
111 DEFENSE F O U N D A T I O N - - - - - - - - - - - - - - - - - -

ATTACHMENT

Corrected Notice of Voluntary Dismissal Without Prejudice Pursuant to

F.R.C.P. 4l(a)(l)(A)(i) and Proposed Order.


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Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

Pro Se Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

In re Insulin Pricing Litigation Civil Action No. 17-699 (BRM)(LHG)


····--·-----·---------------~--
Boss v. CVS Health Civil Action No. 17-01823 (BRM)(LHG)

Bewley v. CVS Health Civil Action No. 17-12031 (BRM)(LHG)


---------------------
Prescott v. CVS Health Civil Action No. 17-13066 (BRM)(LHG)

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PURSUANT TO

F.R.C.P. 41(a)(l)(A)(i) AND PROPOSED ORDER

WHEREAS, the Foundation Plaintiffs are comprised of Pro Se Plaintiff Julia Boss and

unrepresented corporate Plaintiff the Type 1 Diabetes Defense Foundation, Inc. ("TlDF").1 Julia

Boss, TlDF's president, has been duly authorized to file this Notice of Voluntary Dismissal

("Notice") on behalf ofTlDF. This Notice is entered by the Foundation Plaintiffs as it has

1 We hereby seek permission for TlDF to appear unrepresented by counsel for the sole purpose
of voluntarily dismissing its claims without prejudice in the above-mentioned cases. We are not
aware of any other way to cut this procedural Gordian knot. But in case this request shall not be
granted or in case any provision in this Notice of Voluntary Dismissal shall be held invalid or
unenforceable, the validity, legality and enforceability of the remaining provisions, as they apply
to Julia Boss in her pro se capacity, shall not in any way be affected or impaired.

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become impossible for us to prosecute our claims in Boss v. CVS Health (Civil Action No.

17-01823), Bewley v. CVS Health (Civil Action No. 17-12031), and Prescott v. CVS Health

(Civil Action No. 17-13066), 2 for three main reasons: (1) Keller Rohrback's de facto refusal to

prosecute the Bewley and Prescott cases to the sole benefit of a joint enterprise between fourteen

law firms (including interim co-lead counsel and Keller Rohrback), the MSP Plaintiffs and PBM

2It is the Foundation Plaintiffs' understanding that their claims in In re Insulin Pricing Litigation
(Civil Action No. 17-00699) have already been dismissed by virtue of the unconsolidation of
Boss v. CVS Health (Civil Action No. 17-01823). If this is not the case, this Notice ofVoluntary
Dismissal equally applies to any claim of the Foundation Plaintiffs that may have survived the
unconsolidation in In re Insulin Pricing Litigation.

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Defendants (collectively the "Joint PBM-Payer Enterprise"3), (2) Keller Rohrback's participation

in the Joint PBM-Payer Enterprise-Le. its execution of the Tolling and Standstill Agreement in

In re Insulin Pricing Litigation, which specifically references Boss v. CVS Health (Article 9) and

which extends co-lead counsel's control over all current named plaintiffs and part of the putative

3 Several firms that signed the Agreement have extensive relationships with current and former
payer clients. Hagens Berman has litigated cases on a similar fact pattern for Community
Catalyst's Prescription Access Litigation project, including a 2003 putative class action filed in
California on behalf of payers to secure, for their payer clients, full rebate pass-through.
American Federation ofState County and Municipal Employees v. AdvancePCS, et al. No. BC
292227 (Cal. Super. Ct., Los Angeles Cty. Apr. 4, 2003)(first amended representative action: and
complaint stating that "PBMs are failing to disclose and pass on" savings to benefit providers
and "are contributing to the escalation in prices of prescription drugs by keeping the lion's share
of rebates," which they believe "is in the billions of dollars annually"), previously available
at http://www. hagens-betman.com/files/PBM%20Complaint%20-%20Amended%20-
%20NP 1049738021600.pdf. According to the U.S. Department of Justice, "[t]he complaint
alleges that PBMs engage in various forms of conduct designed to increase their profits, instead
of benefitting employers and consumers." (https://www.justice.gov/atr/chapter-7-industr_y-
snapshot-and-competition-law-pharmaceuticals) In that case, "[a]mong other charges, the
complaint alleges that the PBMs failed to pass on rebates from drug manufacturers to health
plans and consumers" (Regulation of Pharmacy Benefit Managers: An Economic Analysis of
Regulation and Litigation as Agents of Health Care Change, page 8, available at: https://
olis.leg.state.or.us/liz/2012Rl/Downloads/CommitteeMeetingDocument/80791). Hagens Berman
has also been extensively involved as outside counsel and litigation counsel in PAL's litigation
campaign against manufacturer copay coupons; See e.g., United Food and Commercial Workers
International Union, Local 464A Health and Welfare Fundv. Merck & Co., Inc., No. 3:12-CV-
03652 (D.N.J. filed Jun. 15, 2012) (dismissed with prejudice after manufacturer defendants
uncovered payers' PBM contracts with rebate pass-through and point-of-sale copay coupon
capture clauses). Keller Rohrback has had an insurance defense practice for over 50 years; see,
e.g., "Keller Rohrback has a long history of serving insurance clients. Some insurers have beeD.
clients for over 50 years" (http://www.kellerrohrback.com/practiceareas/insurance-litigation/)
and "for about 12 years I worked at the firm of Keller Rohrback, doing insurance defense
litigation." (https://www.pf.um.si/site/assets/files/3557/
medicina ,Pravo in druba 20172017 mip heller.pdO. All three PBM Defendants are now
vertically integrated with health insurers. Among the top 5 national PBMs, only Medlmpact has
remained independent although de facto controlled by its single largest payer client, Kaiser
Permanente. The Agreement can th~refore be best described as an agreement between payers and
payers' current/former counsel for the purpose of protecting payers and their PBM agents while
the U.S. Congress, state legislatures and government agencies actively investigate insulin pricing
and payer-controlled patient cost-sharing.

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classes in the Bewley and Prescott cases (Article 2), and (3) the Foundation Plaintiffs' inability,

for a period of over 12 months, to secure counsel willing to represent us in opposing the Joint

PBM-Payer Enterprise as it affects Boss v. CVS Health (Civil Action No. 17-01823), Bewley v.

CVS Health (Civil Action No. 17-12031), and Prescott v. CVS Health (Civil Action No.

17-13066).

A true copy of the fully executed "Tolling and Standstill Agreement" ("Agreement")

dated January 26, 2018, entered into by the Joint PBM-Payer Enterprise is attached as Exhibit

A. 4 The Foundation Plaintiffs received this fully executed agreement for the first time on

December 27, 2018. Keller Rohrback's de facto abandonment of the Bewley and Prescott cases

to benefit the Joint PBM.-Payer Enterprise is clearly documented by their execution of the

Agreement and then their failure to prosecute the Bewley and Prescott cases. Aside from Keller

Rohrback's attempts to seal these cases to curtail public access to the Foundation Plaintiffs'

filings, they stopped prosecuting these cases immediately after they were transferred to this

Court in November 2017. PBM Defendants have taken no action against Keller Rohrback, their

associates in the Joint PBM-Payer Enterprise, for failure to prosecute these cases for over a year;

PBM Defendants, on the other hand, immediately sought dismissal with prejudice under Rule

4Nothing in this Notice should be deemed an admission by the Foundation Plaintiffs that the
Agreement is valid and enforceable. It is in fact our belief that the Agreement is invalid and
unenforceable. It is however proof of a joint enterprise to prevent the Foundation Plaintiffs from
concurrently prosecuting their claims against payers and their PBM agents.

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41(b) of the Foundation Plaintiffs' claims for missing a deadline by a matter of days. 5 The

Foundation Plaintiffs are thus adverse to the Joint PBM-Payer Enterprise-a joint enterprise

between fourteen law firms led by interim co-lead counsel (counsel of payers), the MSP

Plaintiffs (payers), and the PBM Defendants (payers/agents of payers) as memorialized by the

Agreement.

The Joint PBM-Payer Enterprise has endeavored to control the Foundation Plaintiffs'

three cases now before this Court. Article 9 of the Agreement would allow PBM Defendants to

seek a stay of Boss v. CVS Health. Article 2 could also be used by co-lead counsel in In re Insulin

Pricing Litigation or even by Keller Rohrback to interfere with class certification for any action

against PBM Defendants that in any way relates to insulin pricing, including Bewley v. CVS

' v. CVS Health. Prosecuting these latter two cases with only part of their
Health and Prescott

potential classes would be a miscarriage of justice-as is the extended delay of the putative

classes' claims against payers and their PBM agents. The Expiration Date of the Agreement

(Article l(c)) is, at best, no earlier than 180 days after the date on which the Court has·

s The PBM Defendants' informal request (ECF No. 62 in Boss v. CVS) is unsubstantiated and
unreasonable. It breaches local rules. It should not be granted. It is also rendered moot by the
timely filing of this Notice. Julia Boss has the right to prosecute her claims pro se independently
from any class allegation, and the existing complaint already contains all the required elements
of a valid complaint. Furthermore, the PBM Defendants knew that the Agreement had in fact
been made for the specific purpose of preventing Julia Boss from taking the steps the PBM
Defendants now argue she should have taken, i.e. to prosecute Boss v. CVS. Finally, the presence
of a pro se plaintiff, the history of this case, and the complexity of its procedural circumstances
render PBM Defendants' informal request inadequate. See Local Rule 16.l(f)(2) (In such cases
[in which a party appears pro se] case management disputes shall be presented by formal motion
consistent with L.Civ.R. 16.l(g).) We do not need to address the PBM Defendants' informal
request further as this Notice of Voluntary Dismissal renders the PBM Defendants' informal
request moot.

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adjudicated all motions to dismiss in all Insulin Actions, including Boss v. CVS Health-a

circular logical loop (Boss v. CVS Health can be prosecuted only after Boss v. CVS Health has

been fully prosecuted and dismissed) that can't be resolved unless the Agreement itself is voided.

If deemed operative and enforceable, the Agreement renders the unconsolidation of Boss v. CVS

Health illusory insofar as the Agreement effectively prevents us from securing counsel and

prosecuting that case. The only reasonable path forward under these circumstances is thus to

voluntarily dismiss our claims in Boss v. CVS Health without prejudice-in order to immediately

terminate the PBM Defendants' right to seek a stay under Article 9 of the Agreement-as well as

our claims in Bewley v. CVS Health and Prescott v. CVS Health, and then possibly to refile these

claims in a forum that will protect the rights of the putative classes to seek redress against payers

and their PBM agents, free from interference by the Joint PBM-Payer Enterprise.

The above-described procedural morass, engineered by the Joint PBM-Payer Enterprise,

is the primary reason we have not been able to secure legal representation. It is impossible to

prosecute Boss v. CVS Health, Bewley v. CVS Health and Prescott v. CVS Health in this Court

without directly confronting interim co-lead counsel in In re Insulin Pricing Litigation and Keller

Rohrback's cooperation with PBM Defendants to prevent any party from pursuing claims against

payers and their PBM agents in a timely manner. That may mean challenging these attorneys'

capacity to compromise the putative class(es)' right to seek redress against the parties that

actually control the prices putative class members pay at the point of sale-PBMs, as agent of

payers, and payers that control plans' benefit design. The resulting procedural complexity and

adversarial nature of these cases has prevented us from securing counsel. We initiated our search

in November 2017 and diligently initiated multiple case assessments, some taking several

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months and requiring a substantial time commitment from us while concurrently prosecuting our

cases, advancing patients' interest in other fora6 and engaging in our professional activities. Most

counsel who assessed these cases and ultimately withdrew cited reluctance to oppose currf!nt

counsel-signatories to the Agreement-as a primary reason for refusing to take these ca$es.

Others cited 'procedural complexity' --,-complexity created in part by the existence of an

Agreement where counsel's actual capacity to make such an agreement on behalf of the putative

class(es) would be at issue. Our most recent prospe_ctive counsel informed us on Thursday,

December 27, 2018, that they have been unable to find local counsel willing to represent us in

this Court.

We can't prosecute Boss v. CVS Health as a putative class action without counsel; and

even if we had counsel, PBM Defendants could seek to stay this case, at any time, for months or

possibly even years under Article 9 of the Agreement. We could, in theory, remain as plaintiffs in

Bewley v. CVS Health and Prescott v. CVS Health as long as Keller Rohrback and PBM

Defendants continue to leave these cases dormant; but we cannot remain associated with ~

miscarriage of justice that only serves the interest of the Joint PBM-Payer Enterprise. For over a

year, we have tried to the best of our abilities to protect the claims of the putative classes of

insulin, glucagon and test strips users against payers and their PBM agents. We now believe that

this end will be better served by voluntarily dismissing our claims altogether in all above-

mentioned cases.

6E.g. Oregon Joint Interim Task Force On Fair Pricing of Prescription Drugs: https://
olis.leg.state.or.us/liz/201711/Committees/JFPRX/2018-05-18-13-00/MeetingMaterials

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NOW, THEREFORE, pursuant to F.R.C.P. 41(a)(l)(A)(i) of the Federal Rules of Civil

Procedure, Pro Se Plaintiff Julia Boss and unrepresented corporate Plaintiff Type 1 Diabetes

Defense Foundation, Inc. (the Foundation Plaintiffs) hereby give notice that Boss v. CVS Health

(Civil Action No. 17-01823) is voluntarily dismissed in its entirety without prejudice, and that all

Foundation Plaintiffs' claims in In re Insulin Pricing Litigation (Civil Action No. 17-00699),

Bewley v. CVS Health (Civil Action No. 17-12031 ), and Prescott v. CVS Health (Civil Action No.

17-13066) are also voluntarily dismissed without prejudice, each side to bear their own fees and

costs. This voluntary dismissal is not the result of a settlement.

Respectfully submitted on December 28, 2018,

Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

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[PROPOSED] ORDER

Upon request of the Foundation Plaintiffs, Pro Se Plaintiff Julia Boss and unrepresented

corporate Plaintiff the Type 1 Diabetes Defense Foundation, and good cause appearing, IT IS

HEREBY ORDERED that Boss v. CVS Health (Civil Action No. 17-01823) be and hereqy is

dismissed without prejudice in its entirety, each side to bear their own fees and costs. IT IS

ALSO ORDERED that the Foundation Plaintiffs' claims in In re Insulin Pricing Litigation

(Civil Action No. 17-00699), Bewley v. CVS Health (Civil Action No. 17-12031), and Prescott v.

CVS Health (Civil Action No. 17-13066) be and hereby are dismissed without prejudice.

The clerk is directed to close Boss v. CVS Health (Civil Action No. 17-01823) and to

terminate Julia Boss and the Type 1 Diabetes Defense Foundation as plaintiffs in In re Insulin

Pricing Litigation (Civil Action No. 17-00699), Bewley v. CVS.Health (Civil Action No.

17-12031) and Prescott v. CVS Health (Civil Action No. 17-13066).

IT IS SO ORDERED.

Dated: ______________
UNITED STATES DISTRICT JUDGE

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Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

In re Insulin Pricing Litigation Civil Action No. 17-699 (BRM)(LHG)

Boss v. CVS Health Civil Action No. 17-01823 (BRM)(LHG)

Bewley v. CVS Health Civil Action No. 17-12031 (BRM)(LHG)

Prescott v. CVS Health Civil Action No. 17-13066 (BRM)(LHG)

Julia Boss declares as follows:

I am a pro se plaintiff and the president of the Type 1 Diabetes Defense Foundation. I

submit this Declaration to place a relevant document (attached Exhibit A) before the Court. The

document attached hereto as Exhibit A is a true and correct copy of the fully executed Tolling

and Standstill Agreement dated January 26, 2018, received from PBM Defendants on December

27, 2018.

I declare under penalty of perjury that the foregoing is true and correct.

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Respectfully submitted,

Dated: December 28, 2018


Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

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EXHIBIT A

Fully executed Tolling and Standstill Agreement received from PBM

Defendants on December 27, 2018.


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TOLLING & STANDSTILL AGREEMENT

This Tolling & Standstill Agreement (the "Agreement") is made and entered into

between (i) the named plaintiffs and putative class of plaintiffs in In re Insulin Pricing Litigation,

No. 3: l 7-cv-00699 (collectively, the "Insulin Plaintiffs"); (ii) MSP Recovery Claims, Series

LLC, MAO-MSO Recovery, LLC, MSPA Claims 1, LLC, and MAO-MSO Recovery II, LLC

(collectively, the "MSP Plaintiffs"); and (iii) Express Scripts Holding Company, Express Scripts

Inc., UnitedHealth Group Incorporated, OptumRx, Inc., CVS Health Corp., Caremark Rx, Inc.

and Caremark Rx, L.L.C. (collectively, the "PBMs," and together with the Insulin Plaintiffs and

the MSP Plaintiffs, the "Parties"), by and through their respective undersigned attorneys.

WHEREAS, between February and April 2017, several related putative class actions

were filed in the United States District Court for the District of New Jersey alleging violations of

federal and state law in connection with the pricing of certain insulin drugs, including In re

Insulin Pricing Litigation, No. 3:17-cv-00699 (filed Feb. 2, 2017), Barnett v. Novo Nordisk, Inc.,

et al., No. 3:17-cv-01580 (filed Mar. 8, 2017), Boss v. CVS Health Corp., et al., No. 3:17-cv-

01823 (filed Mar. 17, 2017) and Christensen v. Novo Nordisk, Inc., eta/., No. 3:17-cv-02678

(filed Apr. 20, 2017) (collectively, the "Insulin Actions"), some of which named the PBMs as

defendants; and

WHEREAS, on September 7, 2017, the MSP Plaintiffs filed a putative class action

captioned MSP Recovery Claims, Series, LLC, et al v. CVS Health Corp., et al., No. 5:17-cv-

00862, ("MSP') in the United States District Court for the Western District of Texas, alleging

violations of federal and state law in connection with the pricing of certain insulin drugs; and

WHEREAS, on September 18, 2017, the Court appointed Steve W. Berman of Hagens

Berman Sobol Shapiro LLP and James E. Cecchi of Carella, Byrne, Cecchi, Olstein, Brody &

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Agnello, P.C. (together, "Insulin Counsel") as interim counsel for the Insulin Plaintiffs, which

gives them the authority "to act on behalf of [the] putative class before" the class has been

certified (see Fed. R. Civ. Pro. 23(g)(3)); and

WHEREAS, on November 17, 2017, the MSP Plaintiffs and the other parties to that

action jointly filed an agreed motion communicating to the MSP court that the "[MSP] Plaintiffs

have voluntarily agreed to litigate the claims made in this case in the District of New Jersey;"

and

WHEREAS, on November 20, 2017, the MSP court entered an order providing that

"[w]ithin 60 days hereof, [MSP] Plaintiffs will either voluntarily dismiss this action without

prejudice or will file a motion to transfer this action to the District of New Jersey"; and

WHEREAS, Insulin Counsel believes it is in the best interest of the Insulin Plaintiffs to

forebear at this time from prosecuting claims against the PB Ms, and on December 26, 2017, filed

a consolidated amended complaint in the Insulin Actions that does not name the PBMs as

defendants; and

WHEREAS, counsel for the MSP Plaintiffs believes it is in the best interest of the MSP

Plaintiffs to forebear at this time from prosecuting claims against the PBMs named as defendants

in MSP and intends to voluntarily dismiss the complaint filed in MSP and to file a complaint in

the District of New Jersey that does not allege claims on behalf of a putative class and does not

name the PBMs as defendants; and

WHEREAS, Insulin Counsel and MSP Counsel wish to protect the Insulin Plaintiffs and

MSP Plaintiffs against any and all prejudice that may result from a delay in the prosecution of

claims against the PBMs should it later be decided that the assertion of such claims is in the

Insulin Plaintiffs' and MSP Plaintiffs' best interests; and

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WHEREAS, Insulin Counsel, on behalf of the Insulin Plaintiffs, and MSP Counsel, on

behalf of the MSP Plaintiffs, are willing to delay prosecution of claims against the PB Ms, and the

PB Ms are willing to agree that the statute of limitations for the Insulin Plaintiffs' and MSP

Plaintiffs' potential claims may be tolled as to the PBMs in the manner described below; and

NOW THEREFORE, in consideration of the promises and mutual covenants and

agreements herein contained, the Parties hereby covenant and agree as follows:

TERMS OF AGREEMENT

1. The following defined terms used in this Agreement have the meanings set forth

below.

a. "Agreement" is defined in the preamble.

b. "Covered Claim" means any and all manner of claims, debts, demands,

controversies, obligations, losses, costs, interest, penalties, fees, expenses, rights, duties,

judgments, sums of money, suits, contracts, agreements, promises, damages, causes of

action and liabilities, of every nature and description in law or equity (including, but not

limited to, any claims for damages, whether compensatory, special, incidental,

consequential, punitive, exemplary or otherwise, injunctive relief, declaratory relief,

recession or recessionary damages, interest, attorneys' fees, expert or consulting fees,

costs,· or expenses), whether fixed or contingent, liquidated or unliquidated, accrued or

unaccrued, matured or un-matured, known or unknown, arising under federal, state, local,

statutory, common, administrative, or foreign law, or any other law, rule, or regulation,

brought against any of the PB Ms that relates in any way to the pricing of insulin.

c. ''Expiration Date" means the earlier of (a) the date that final judgments

are entered in all of the Insulin Actions, or (b) the date thirty days after Insulin Counsel

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gives written notice to the PB Ms that, on the basis of facts or circumstances that Insulin

Counsel learned after executing this Agreement, they are of the view that it is in the

Insulin Plaintiffs' best interests to include one or more of the PB Ms as a party-defendant

in the Insulin Actions, provided that the date established under subparagraph (b) may not

be earlier than 180 days after the date on which the court has adjudicated all motions to

dismiss in the Insulin Actions.

d. "Insulin Actions" is defined in the first whereas clause.

e. "Insulin Counsel" is defined in the third whereas clause.

f. "Insulin Plaintiffs" is defined in the preamble and consists of the

following plaintiffs named in the consolidated amended complaint filed on December 26,

2017 (ECF No. 82): Henry Appleby, Andre' Arnold, Frank Barnett, Roseanna Barnett,

Andrew Bauer, Aletha Bentele, Julia Blanchette, Mary Bobo, James Bonser, Terry

Brewster, Donald Chaires, Scott Christensen, Julia D' Arrigo, Patricia Dague, Gay

Deputee, Scott Dercks, Mary Ann Devins, Jane Doe, Donald Douthit, F. Donald Fellow,

Mildred Ford, Sarah Gierer, Dianna Gilmore, Gerald Girard, Mark Goldsmith, Michelle

Gwin, Ruth Hart, Diane Halkyard, Sara Hasselbach, David Hernandez, Ritch Hoard,

Michael Horton, Arthur Janz, Emma Jensen, Edward Johnson, Richard Knauss, Angela

Kritselis, Susan Landis, Adam Levett, Jeffrey Liedl, John Loschen, Robert Lowman,

Sean Mac an Airchinnigh, Jeanne MacNitt, Lawrence Mandel, Susan Marsh, Anne

Olinger, Russell Scott Palmer, Juliana Patton, Marilyn Person, Willie Phillips, Patricia

Quint, Donna Ramsey, Robyn Rushing, Marie Saffran, Bertha Sanders, Mark Schloemer,

Howard Schurr, Larissa Shirley, Tremayne Sirmons, Edward Stanford, Michael Starr,

Bret Stewart, Molly Thompson, Jon Ugland, Hector J. Valdes Jr., Hector J. Valdes Sr.,

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Andrew Van Houzen, Alethea Weir, Kim and Jim Wallan, and Karyn Wofford, and the

putative class they seek to represent in In re Insulin Pricing Litigation, No. 3:17-cv-

00699.

g. "MSP' is defined in the second whereas 'clause.

h. "MSP Plaintiffs" is defined in the preamble.

1. "Parties" is defined in the preamble.

J. "PBMs" is defined in the preamble.

k. "Timing Defense" means any defense based in whole or in part upon any

statute of limitations, repose period, laches, or any other failure to institute or commence

litigation or other proceedings within a specified period, before a specified date, or before

the happening of a specified event.

2. The Insulin Plaintiffs will not assert, commence, prosecute, institute, or instigate

any Covered Claim brought on behalf of a putative class, or in any way participate, other than as

required by law, in the commencement or prosecution of any other action or other proceeding

asserting any Covered Claim brought on behalf of a putative class up to and including the

Expiration Date.

3. The MSP Plaintiffs will not assert, commence, prosecute, institute, or instigate

any Covered Claim, or in any way participate, other than as required by law, in the

commencement or prosecution of any action or other proceeding asserting any Covered Claim up

to and including the Expiration Date.

4. The time that has been running under any applicable Timing Defense in

connection with any Covered Claim is hereby tolled from and including December 26, 2017, up

to and including the Expiration Date. thus, any Covered Claim will be preserved until the

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Expiration Date, unless any Timing Defense already has ripened on such claim before December

26, 2017. If any Insulin Plaintiff or any MSP Plaintiff asserts a,Covered Claim after the

Expiration Date, the time for bringing suit under any applicable Timing Defense will be deemed

to have been tolled during the period beginning with and including December 26, 2017 up to and

including the Expiration Date. Notwithstanding the foregoing, for any Covered Claim that an

MSP Plaintiff might have against UnitedHealth Group Incorporated or OptumRx, Inc., the time

for bringing suit under any applicable Timing Defense will not be deemed to have been tolled for

any period. This Agreement will not operate to revive any period of limitations prescribed by

statute or otherwise for the commencement of any action if such period of limitation already has

run as of December 26, 2017. Provided, however, if any Insulin Plaintiff brings a Covered

Claim on behalf of a putative class before the Expiration Date, the PB Ms will have the right to

terminate the Agreement provided that: (1) they give written notice to Insulin Counsel of the

filing of a Covered Claim; and (2) Insulin Counsel is unable to obtain dismissal of that Covered

Claim within 30 days of notification of the Covered Claim by the PB Ms.

5. This Agreement will not prevent the Parties from seeking discovery under the

Federal Rules of Civil Procedure ("Rules") from the other Parties to this Agreement-,-Qr from

any other party.

6. Except as specifically set forth herein with respect to the tolling of Timing

Defenses, this Agreement will not affect the validity of any of the Parties' respective claims or

defenses. Nothing in this Agreement will be construed as an admission or concession by any

Party regarding the validity or strength of any claim or defense of any other Party; and nothing

herein will alter the Parties' respective legal or evidentiary burdens with respect to any claim or

defense.

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Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 20 of 35 PageID: 1439

7. This Agreement will affect only the Parties hereto and their counsel, and nothing

herein will affect the claims or potential claims, if any, of other persons, entities or non-parties;

nor will it affect any defenses or affirmative defenses to any claim of other persons, entities or

non-parties.

8. Nothing in this Agreement will bar the Parties from bringing any action or claim

to enforce the terms of this Agreement

9. The PB Ms will not use this Agreement as a basis to stay any claims against them

in any case other than the Insulin Actions specifically identified in the first whereas clause

above.

10. This Agreement contains the entire agreement between the Parties and constitutes

the complete, final, and exclusive embodiment of their agreement relating to the subject matter

hereof. The terms of this Agreement are contractual and not a mere recital.

11. The signatories to this Agreement represent that they have the requisite authority

to bind and act on behalf of the respective Parties for whom they sign.

12. This Agreement may not be modified except by a written instrument that

explicitly refers to this Agreement, explicitly purports to modify its terms, and is signed by all

Parties hereto.

13. This Agreement will bind and will inure to the benefit of the Parties.

14. This Agreement will be deemed to have been entered into and will be construed

and enforced in accordance with the laws of the State of New Jersey without regard for New

Jersey's choice-of-law or conflicts-of-laws rules.

15. This Agreement may be executed in two or more counterparts, each of which will

be deemed an original but all of which together will constitute one and the same instrument.

7
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 21 of 35 PageID: 1440

IN WITNESS WHEREOF, the undersigned have duly authorized and caused this

Agreement to be executed.

Dated: January 26, 2018

CARELLA, BYRNE, CECCHI, OLSTEIN, SKADDEN, ARPS, SLATE, MEAGHER &


BRODY & GNELLO, P.C. FLOMLLP

By:-----------
Robert A. Fumerton

Attorney for Defendants Express Scripts


Holding Company and Express Scripts Inc.

HAGENS BERMAN SOBOL SHAPIRO LLP ALSTON & BIRD LLP

By:------------- By: - - - - - - - - - - - - - - - - -
Steve W. Berman Brian D. Boone
Thomas M. Sobol William H. Jordan
Hannah W. Brennan Elizabeth Broadway Brown
Jordan E. Edwards

Attorneys for Defendants UnitedHealth Group


Incorporated and OptumRx, Inc.

8-
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 22 of 35 PageID: 1441

\.

IN' WITNESS WHEREOF, the undersigned have duly .authorized and caused this

Agreement to be executed.

Dated: January 26, 2018

CARELLA, BYRNE, CECCHI, OLST~IN, SKADDEN, ARPS, SLATE, MEAGHER &


BRODY & AGNELLO, P.C. FLOMLLP

By:------------ By:
James E. Cecchi Robert A. Fumerton
Lindsey H. Taylor Patrick G. Rideout

Attorney for Defendants Express Scripts


Holding Company and Express Scripts Inc.

HAGENSBERMANSOBOLSHAPIROLLP ALSTON & BIRD LLP

By:----------- By:------------
Steve W. Berman Brian D. Boone
Thomas M. Sobol William H. Jordan
Hannah W. Brennan Elizabeth Broadway Brown
Jordan E. Edwards

Attorneys for Defendants UnitedHealth Group


Incorporated and OptumRx, Inc.

8
Case 3:17-cv-01823-BRM-LHG Document
--------~--··---·----------·-·-·--·---·-···-··- 67-1 Filed 01/03/19 Page
..······· ··-·-··----'·--'--·-···-'-·--......______ ...........:_................_........___ ...
,
23 of 35 PageID: 1442

IN WITNESS ·WHEREOF, ~e undersigned have duly authod~d and ca14sed this

Agreement·to be executed.

Dated: January 26, 2018

CARELLA, BYRNE, CECCHI, OLSTEIN, SKADDEN, ARPS, SLATE, MEAGHER &


BRODY & AGNELLO, P.C. FLOM LLP

By: By: ·.,---.....,_-----------


James E. Cecchi Robert A Ftimerton
Lindsey H. Taylor
Attorneyfor.DefendantsExpressScripts
Holding CQ,npanyand£xpress Scr.iptslnc.

HAGENS BERMAN SOBOL SHAPIRO ALSTON&.BIRD•·LLP


LLP

By: - - - - - - - - - - - - - - - -
Brilill It. Boone
.Berman WilliamH. .Jordan
· omas M. Sobol Elizabeth Broadway Brown
Hannah W. Brennan Jordan E. Edwards

Attorneysfor>Defenattiits UnitedHealth Group


Incorporated andOptumRx, Jnc;

8
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 24 of 35 PageID: 1443

IN WITNESS WHEREOF, the undersigned have duly authorized and caused this
Agreement to be executed.

Dated: January 26, 2018

CARELLA, BYRNE, CECCHI, OLSTEIN, SKADOEN, ARPS, SLATI;:, MEAGHER &


BRODY & AGNELLO, P.C. FLOM LLP .

By: By: _ _ _ _ _ ___;.__ _ __


James E. Cecchi Robert A. Fumerton
Lindsey H. Taylor
Attorney for Defendants Express Scripts
Holding Company and Express Scripts Inc.

HAGENS BERMAN SOBOL SHAPIRO ALSTON & BIRD LLP


LLP

By:---~-·-~~---
By:----------- Brian D. Boone
Steve W. Berman WiUiam H. Jordan
Thomas M. Sobol Elizabeth Broadway Brown
Hannah W. Brennan Jordan E. Edwards

Attorneys for Defendants UiJitedHealth Group


Incorporated and OptumRx,: Inc.

--------------------------------------·--····--·--·
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 25 of 35 PageID: 1444

MEHR! & SKALET, PLLC WILLIAMS & CONNOLLY LLP

By: - - - - - - - - - - - - -
Craig L. Briskin B:12P:lBoeOO:
Daniel Dockery

Attorneys for Defendants CVS Health


Corporation, Caremark Rx, Inc. and
Caremark Rx, LLC

NUSSBAUM LAW GROUP, P.C. WEITZ & LUXENBERG

By:----------- By:-----------
Linda P. Nussbaum Ellen Relkin
Bradley J. Demuth Paul F. Novak
Diana Gjonaj
Gregory Stamatopoulos

CRIDEN & LOVE, P.A. BERMAN TABACCO

By:------------ By:------------
Michael E. Criden Todd A. Seaver
Lindsey C. Grossman Jessica Moy

9
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 26 of 35 PageID: 1445

MEHRI & SKALET, PLLC WILLIAMS & CONNOLLY LLP

By: - - - - - - - - - - - - - - - By:-----------
Craig L. Briskin Enu Mainigi
Paul Boehm
Daniel Dockery

Attorneys for Defendants CVS Health


Corporation, Caremark Rx, Inc. and Caremark
Rx, L.LC.

NUSSBAUM LAW GROUP, P.C. WEITZ & LUXENBERG

By: , ~ft,1_ l/,,(--'--_.,


J.. By:-----------
Linda P. Nussbaum EJ len Relkin
lffi lli_g 9emth> Paul F. Novak
Diana Gjonaj
Gregory Stamatopoulos

CRIDEN & LOVE, P.A. BERMAN TABACCO

By: _________........_ _ __
By:-----------
Michael E. Criden Todd A. Seaver
Lindsey C. Grossman Jessica Moy

:9
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 27 of 35 PageID: 1446

MEHR! & SKALET, PLLC WILLIAMS & CONNOLLY LLP

By:----------- By:------------
Craig L. Briskin Enu Mainigi
Paul Boehm
Daniel Dockery

Attorneys for Defendants CVS Health


Corporation, Caremark Rx, Inc. and Caremark
Rx, L.L.C.

NUSSBAUM LAW GROUP, P.C.

By: ~--~==-----~
=·····=-·-=-
Linda P. Nussbaum
:IT?Cf/~
Ellen Relkin
Bradley J. Demuth Paul F. Novak
Diana Gjonaj
Gregory Stamatopoulos

CRIDEN & LOVE, P.A. BERMAN TABACCO

By: - - - - - - - - - - - - By: - - - - - - - - - - - -
Michael E. Criden Todd A. Seaver
Lindsey C. Grossman Jessica Moy

9
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 28 of 35 PageID: 1447

MEHRf & SKALET, PLLC WILLIAMS & CONNOLLY LLP

By: --·--·- ·-·. . ~ ·-------·········-·- By:··-· ... ,.........·....,._-"----


Crdig L. Briskin E'nu Mainigi" .
Paul Boehm
Daniel Dockery

Allorneysfor Defendants CVS Health


Corporation, Caremark Rx, Inc. and
Carema1·k Rx, l.L. C.

NUSSBAUM LAW GROUP, P.C. WEITZ & LUXENBERG

By: _ _ _ . __ e:y. - ...


Linda P. Nussbaum Ellen Relkin
Bradley J. Demuth Paul F. Novak
Diana Gjonaj
Gregory S~matopoulos

BERMAN TABACCO

By: . ··--· ...... --··-----·····-~----·--·-·


Todd A. Seaver
Lindsey C. Grossman Jessica Moy

9
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 29 of 35 PageID: 1448

MEHR! & SKALET, PLLC WILLIAMS & CONNOLLY LLP

By: ____________________
By:-----------
. Craig L. Briskin Enu Mainigi
Paul Boehm
Daniel Dockery

Attorneysfor Defendants CVS Health


Corporation~ Catemark Rx, Inc. and
Caremark Rx, L;L.C.

NUSSBAUM LAW GROUP, P.C. WEITZ & LUXENBERG

By:----------- By:--------------
Linda P. Nussbaum Ellen Relkin -
Bradley J. Dernuth Paul F. Novak
Diana Gjonaj
Gregory Stamatopoulos

CRIDEN & LOVE,.P.A.

By: - - - - - - - - - - - - - - - - -
Michael E. Criden
Lindsey C. Grossman

9
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 30 of 35 PageID: 1449

SHEPHERD FINKELMAN MILLER& RAGO LAW


SHAH, LLP

By:-----------
Michelle· Rago
By: - - - - - - - - - - - - - - -
Jayne A. Goldstein
Natalie Finkelman Bennett

CA.FFERTY·CLOBES MERIWETHER&
SPRENGEL LLP

Roberta . Liebenberg By:-----------


Adam J. Pessin Nyran ·Rose· Rasche
Patrick E. Cafferty

KELLER ROHRBACK L.L.P. WEIL & CHARDON LLC

By: - - - - - - - - - - - - - - - - By:------------
Lynn Lincoln Sarko Stephen- H. Weil
Derek W. Loeser
Gretchen S. Obrist
Attorneysforlnsu/in Plaintiffs
On behalf of Plaintiffs Halkyard, Sanders,
Wal/an, Ramsey, and Hart

lO
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 31 of 35 PageID: 1450

SHEPHERD FINKELMAN MILLER & RAGO LAW


SHAH, LLP

By:-----------
By:-----------
Michelle Rago
Jayne A. Goldstein
Natalie Finkelman Bennett

FINE, KAPLAN AND BLACK, R.P.C. CAFFERTY CLOBES MERIWETHER &


SPRENGEI LLP

By:-----------
Roberta D. Lieben,berg By: ---~----_,.._.,_______---a..,_;:_-=-----
Adam J. Pessin Nyran Ro
Patrick E.

KELLER ROHRBACK L.L.P. WEIL & CHARDON LLC

By:------------ By:-----------
Lynn Lincoln Sarka Stephen H. Weil
Derek W. Loeser
Gretchen S. Obrist
Attorneys for Insulin Plaintiffs
On behalfofPlaintiffe Halkyatd, Sanders,
Wallan, Ramsey, and Hart

IO
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 32 of 35 PageID: 1451

SHEPHERD FINKELMAN MILLER & RAGO LAW


SHAH, LLP

By: - - - - - - - - - - - - - - - -
By:-----------
Michelle Rago
Jayne A. Goldstein
Natalie Finkelman Bennett

FINE, KAPLAN AND BLACK, R.P.C. CAFFERTY CLOBES MERIWETHER & ·


SPRENGEL LLP

By:------------
Roberta D. Litrbenberg ·By:------------
Adam J. Pessin Nyran Rose Rasche
Patrick E. Cafferty

KELLER ROHRBACK L.L.P. WEIL & CHARDON LLC

By:~1nmt~
Lynn Lincoln Sarko
By:------------
Stephen H. Weil
Derek W. Loeser
Gretchen S. Obrist

On behalf ofPlaintiffs Halkyard, Sanders,


Wallan, Ramrey, and Hart

10
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 33 of 35 PageID: 1452

SH£PHERD FINKELMAN MILLER & RAGO LAV./


SHAH. LLP

By:------------
Michelle Rauo
.e
By:--------------
Jayne A. Goldstein
Natalie Finkelman Rennell

FlNE, KAPL~N AND BLACK R.P.C. CAFFERTY CLOBF.S MERIWETHER &


SPRENGEL LLP

By:~~-~~=~~-............-------
Roberta D. Liebcnbcrg By:-------~---
Adum J. Pc~sin Nyran Rose Rasche
Patrick E. Cafferty

KELLER ROHRBACK L.L.P. WEIL & CHARDON LLC

By: - - - - - - - - - ' - - - - - - - , - - -
Lynn Lincoln Sarko
By: ~,i;
St.ire: Weil
1L
Derck W. Loeser
Orcklrnn S. Obri8t
Altonwt·.,ji)r Insulin Plaint!ff.,·
On hcdw(f"~/Plaimil,h.- lla/1'yard. Smulers.
l·Va/lm,; Rmusr.:r. a11d Hatt

JO
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 34 of 35 PageID: 1453

CRITCHLEY, KINUM & DENOIA, LLC SERNA & ASSOClA TES PLLC

By: _ _ _____;;._,;.._;,,;___.,;;._________-'----_
By·----"--------------+--------
Michael Critchley~. Enrique G. Serna
Daniel E. Serna
On behalf ofPlaintiffs Halkyard, Sanders,
Wollan, Ramsey, and Hart Attorneys.for MSP Plaintiffs

11
Case 3:17-cv-01823-BRM-LHG Document 67-1 Filed 01/03/19 Page 35 of 35 PageID: 1454

CRITCHLEY, KINUM & DENOIA, LLC

By:-----------
Michael Critchley

On behalfofPlaintiffs Halkyard, Sanders,


Wal/an, Ramsey, and Hart

11