thank you good morning so fundamentally from our perspective this case is about whether small business community pharmacies are going to need to speak up oh i'm sorry i'll trust you here as well so fundamentally from our perspective  issue in this case the public policy issue in this case is whether small business community pharmacies are going to be allowed to survive and flourish through competition or if they're going to be bulldozed out of  from providing on ghosts or ongoing services by self dealing agents of an egregious negotiate a different contract next well i think that that's what i'm getting to my point is that the contract they negotiated here supposed to protect them conoco and in other cases is the question is whether congress intended to prohibit state private rights of action here we're talking about a state law private right of action under contract in other words what is it about the left that  that a party who benefits from the enforcement of a statute that it isn't necessarily intent to be protected by what is it about the law that prohibits it from entering into a contract with another willing party what we're seeing here is that express scripts received the information that we're talking about is customer information customer data when performing a function as a clearinghouse it's then convert that information and what what forum has ever come close to embracing that interpretation of the regulation i got a guideline if you got a reg of you got an agency decision if you got a court decision i can't believe it interpretation of the contract but it is your and you're inviting are requiring a federal court acting way outside the parameters of the statute and it's and it's client yes acting at the at the behest of the patients that is meant to protect can get in there can get indirectly a contract will benefit out of a provision meant to t that among other things provided for working conditions for employees those provisions of that collective bargaining agreement were clearly there to protect the employees that's why you have that provision it didn't matter that the provision wasn't specifically intended to protect it all that matters under the law is whether it has a right a basis to enforce a contract and whether it has an injury in fact if a contract is in force or in this case the question is do these plaintiffs have a contractual right to enforce they do they have a contractual right under section five point three of their contract i won't belabor here that that's not what the contract says what the contract says or at least a reasonable interpretation of the contract which would then create an issue a fact or a mix question of one fact which can't be decided on a motion to dismiss and you re seven different claims are you relying on all of the ones here on appeal as well yes i just refer to my briefs on the on the others these are the ones that i thought were worthwhile focusing on iraq and it interesting that you stated at the outset policy issue here is and you had your clients be protected from unfair competition and you have not discussed any claim that interprets and enforces unfair competition it's a fair point and so what i would point about i mean i understand the unfair result from your playing of from your client's perspective but i don't understand the unfair competition what makes the competition here unfair and actionable is that these plants are required to provide certain information for a certain purpose and then measure the required provide is there information it's owned by that you're you're viewing the landscape in my view much too narrowly is aren't isn't the client express scripts are the farm are the are the rest and other health insurers operating in the patient's interest to procure it cost effective and and efficient now i assume that xpress scripts would not be would not be for filling a person refill prescription would not be coming up with a program to do that without the blessing of their clients on behalf of the patients who you say are the real you know real injured parties here they are i have to assume that the patients probably love this because refills automatic refills by mail get them got  to get them what they need fast and presumably cost effectively if it's not cost effective somebody is going to do something about it it's going to be the plan to administrative but the problem is that a motion to dismiss we can't assume any of those things those things are all outside of the  thank you judge may it please the court i'm full holiday and i'll be making the argument on behalf of the express scripts and this morning i'd like to start right where mr ballasts finish and just make clear they did not  as part of their opposition to the motion to dismiss before but to the fundamental point here the district court got it right and granted we express scripts motion to dismiss but there they are a move for reconsideration they did not move for so there's no pleading where we find a request no pleading until the reply brief in this court for other for the st time they throw out as a hail mary we should have been allowed to amend our comply but back to the fundamental point because as your honour's have indicated hippest primary purpose is to protect individuals private health information not to ensure that pharmacies participating in retail pharmacy networks get paid judge white correctly held that the pharmacy plaintiffs breach of contract flying fails both because no private right of action exists for him but violation and more importantly because it is the distinction between having a contractual right to and to enforce one's obligation to comply with what you've agreed to do if that were what you agreed to do to comply with the law your honor i don't think this court has to resolve that finally today but i will say this we have cited cases in our brief that support the proposition that we're what you're talking about is simply a compliance provision that both parties are required to do something they're already required to do under the law that that is not an enforceable contract or all right but even for purposes of today and by the way the plaintiffs have cited no case in the context of hipaa that would suggest that you have a right to enforce a propos compliance provision that way but even if you could come up with some scenario where there were facts in which a party could attempt to enforce or bring an alleged breach of contract action based on a violation of a compliance provision in the contract this is not that case and it's not that case because of who's authorization controls it's the plaintiffs it's not the plaintiffs pharmacy who get to dictate how the p h o information that they provide to express scripts is used when that member walks in to one of these plaintiffs retail pharmacies and pulls out his or her express scripts card and hands it to the pharmacist so that they are can get their prescription filled they're not doing that so that the point of they're doing that so that express scripts provide their prescriptions consistent with and in accordance with the terms and conditions of this way plan sponsors prescription drug programs and that's exactly how taking everything in point of complying astroid that's exactly how express groups has used the information here they have in every instance where they are filling the prescriptions got to do anything that violated the plan sponsors prescription drug program in other words fill the prescriptions has provided in the terms and conditions of those prescription and then too when you look at the agreements themselves and there to grow very much that are in play here there's the pharmacy provider agreement the p p a and there is the provider manual which is specifically referenced throughout the p p a and set section seven point three of the p p a specifically references that the provider manual long with the p p a constitute the agreements between the parties in this case that and the pharmacy provider manual as it med is over one hundred pages long and take some time but judge white carefully parsed through the provider manual and the p p i and he concluded one and most importantly that those terms and conditions are not ambiguous at all and that is the role of the trial court is determine whether or not well that's an issue law it is an issue of the law it's exactly right and so he did exactly what we can review and they know i'm not sure we've been invited asked i don't think you have to but i'll tell you what judge white found when he reviewed it he found one that it's on question under the two agreements that express scripts has the right to use members ph in fulfilling its obligations to its plan sponsors and their members to that express scripts will fill certain prescriptions by mail dispensing and three that the plan sponsors and their prescription drug programs network or the mail network that e t s i fail to do so in compliance with and in accordance with the terms and conditions of the plan sponsors prescription drug programs so because they were specifically authorized to use the information as they did your honor i think that knocks out all of the quasar contractual planes here as well as the breach of contract lines and i would include in those everything but the monopolization fly that your honor referenced at the end so i think all those claims are gone based on the members authorization here to have their prescriptions filled consistent with the terms and conditions of their plan sponsors purse corruption drug programs and the quasar contractual stuff is gone because of the express carmen's terms and conditions of the two agreements as an aside i think i saw a reference in the last week that the supreme court granted a circuit decision and valving pharmacy benefit managers if you're familiar with that you would you give us an alert as i have  having to do with this one i'm not involved in that case and i don't know the specifics but i am told by those who would have some knowledge that it has no bearing on the issue that reform this court but you are correct allows express scripts to and i think you say expressly allows us to use the information in its own mail order pharmacy business i think what i meant to say that they are expressly allowed to use the information consistent with the terms and conditions of their plan sponsors prescription drug programs and that's what the agreement since that's what the agreement says yes or not can cite several for you i mean and ministers and manages prescription drug programs for sponsors which programs include claims administration mail service dispensing and other pharmacy benefit management services or that she says that they do it they do it yes or no but then there are multiple provisions within the agreement and the provider manual for instance section two point two of the p p a provider shall provide services here under including the dispensing of covered medications in accordance with applicable prescription drug programs and the design in formulary applicable to the specific prescription drug program you turn over to section five point one of the provider manual and it reads as follows express scripts provides clinically sound formularies which when combined with well designed prescription drug benefit plans can help constitutes the entire agreement between the parties in addition to that judge white sided in his opinion and relied on numerous decisions from the eastern district of missouri that have consistently held that the provider you're honest picked up on right away with the final clause in both of those which provides in the in the case of fifty wait a consistent with the authorization and specifically provides that a covered entity like express scripts is permitted to use and disclose the ph received for treatment payment or health care operations as permitted consider it but you're saying that simply doesn't matter that now i'm saying that the way they're using it is consistent and permitted under the both those covered functions yes that's exactly right has used ph i have from ation in any manner other they had to provide prescriptions to the members consistent with their plan sponsors plans plain and simple end of story i where the express scripts if they didn't know if they were playing and if these retail pharmacies didn't have an agreement with express scripts the patients couldn't come there in the st place and get their prescriptions filled again the information they were providing have to assume is true it is a fact you have to assume this true but the reason we say that it does not matter here is because the information is being used consistent with the cord in playing a favor on the market market definition your honor i think that whether or not it is in their favor on the market issue this court's both in parker met and here is the alleged market of maintenance medications paid for by express scripts plan spo but this court fan plain and simple thats it what this court held in park ermine was that that relevant market deck finish and ignores that consumers generally have access to are expressed scripts by and sponsors i'm sorry and justice in part are met the customers of the alleged market there were plans sponsors and pharmacies and those plans for plan sponsors as you pointed out or in consistent with eastman kodak if it failed here just as it did in parker erma that the market as pled is not broad enough to consider generally that refills can be had through other pharmacies both inside and outside the express scripts pharmacy network and i think that it's bad for the school but i want to make sure if you've got anything else to follow up that have not left something hanging just joking no well i thought i thought what's remarkable about about these kodak is that the plaintiffs limited their claim to the after  and one can and and now am and analogize refill prescriptions with an after market but it's not it's not a comfortable we agree and again it was not alleged or argued up until now not the pharmacies right to get paid if they participate in a retail pharmacy network and because express there is no allegation in this case that express scripts has ever used the ph on information that it's been provided through the pharmacy pointis for any purpose other than to fulfill those prescriptions whether at retail or by mail dispensing of the members consistent not reasonable substitutes for prescriptions filled inside of the network because a prescription filled for a ten dollars co pay is not a reasonable substitute for a prescription filled for three hundred dollars or one thousand dollars that they are fungible they just aren't and so i think you  have a distinct submarket here the distinct market here that the nd point that i wanted to make is that the district court fundamentally just got a wrong on two key points and i think they they bear re and the district court decided that it own the information the plants provide it to to the defendant and on these two points which were the the cornerstones of the decision below the district or just got it