United States Court of Appeals

For the Eighth Circuit

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No. 18-1628

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Park Irmat Drug Corp.

lllllllllllllllllllllPlaintiff - Appellant

v.

Express Scripts Holding Company; Express Scripts, Inc.

lllllllllllllllllllllDefendants - Appellees

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________

Submitted: September 26, 2018

Filed: December 12, 2018

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Before WOLLMAN, KELLY, and ERICKSON, Circuit Judges.

____________

WOLLMAN, Circuit Judge.

Park Irmat Drug Corporation (Irmat) brought suit against Express Scripts

Holding Company and Express Scripts, Inc. (Express Scripts), alleging various

contract claims, a promissory estoppel claim, and violations of federal antitrust laws
and state Any Willing Provider laws. The district court dismissed Irmat’s complaint 1

for failure to state a claim. We affirm.

I.

Express Scripts is the largest pharmacy benefits manager (PBM) in the United

States. A PBM is a third-party administrator of prescription drug programs. PBMs

process and pay prescription drug claims made by pharmacies and patients. PBMs

also negotiate drug discounts with pharmaceutical manufacturers, handle pharmacy

benefits for health plans and self-insured entities, and develop lists of drugs that are

approved for reimbursement. A patient’s health insurance plan chooses which PBM

covers their drug-related expenses. Express Scripts and another PBM, CVS Health

(CVS), account for 65% of the PBM market.

PBMs create networks of pharmaciesin which PBM members can receive their

prescription pharmaceuticals at covered, discounted rates. To be successful,

independent pharmacies must participate in the largest PBM networks. These

independent pharmacies contract with PBMs either directly or through an agent such

as a Pharmacy Services Administrative Organization (PSAO). Ninety-seven percent

of retail pharmacies in the United States participate in Express Scripts’s pharmacy

network. 

Express Scripts also operates a mail-order pharmacy that fills prescriptions by

mail nationwide. It is the only mail-order pharmacy allowed in Express Scripts’s

PBM network. According to Irmat, PBMs that own mail-order pharmacies dominate

the mail-order pharmacy service industry. Nevertheless, independent pharmacies,

The Honorable Ronnie L. White, United States District Judge for the Eastern 1

District of Missouri.

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like Irmat, have been able to successfully provide mail-order pharmacy services to

customers in the United States.

Irmat is a New York-based, independent pharmacy located in midtown

Manhattan. It opened in 1978. For many years, Irmat was a successful retail

pharmacy that filled and sold prescriptions via its storefront location. In 2013, Irmat

began focusing on dermatological pharmaceuticals. It entered into a patient

assistance program with dermatological drug manufacturersfor pharmaceuticals that

often had no generic equivalent. Under the programs, the manufacturers would pay

a portion of a patient’s insurance co-payment to Irmat. Because of its participation

in these programs,Irmat expanded its businessinto a nationwide mail-order pharmacy

and increased its staff from twenty employees to 208 employees. 

Irmat joined Express Scripts’s PBM network in 2012 through AccessHealth,

a PSAO, and gained access to more than 100 other PBMs. In October 2014, Express

Scripts sentIrmat a Network Provider Agreement (the agreement) requiring thatIrmat

sign or risk termination from its network. The agreement required Irmat to meet the

definition of a “retail provider,” which was defined as a pharmacy “that primarily

fills and sells prescriptions via a retail, storefront location” and that “shall not include

mail order” pharmacies. The agreement also included recredentialing requirements

whereby a retail provider must disclose updated information to Express Scripts. 

Failure to comply with the recredentialing requirements constituted a breach of the

agreement and was cause for termination from Express Scripts’s network. Finally,

the agreement allowed Express Scripts to unilaterally terminate the contract without

cause upon thirty days written notice. Irmat signed the agreement. 

Express Scripts required Irmat to submit a recredentialing application in July

2015. Irmat disclosed that 35% of its business came from its retail pharmacy and that

65% of its business came from its mail-order pharmacy. On August 7, 2015, Express

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Scripts sent Irmat an e-mail, the subject line of which read “Express Scripts

credentials approved,” and the text of which stated:

We are pleased to inform you that your recently submitted credentials

have been reviewed and you are approved to continue in the Express

Scripts Holding Company pharmacy networks. 

Irmat then hired more employees, constructed a multi-million dollar facility in

New York, and spent time and money acquiring mail-order accreditations. In May

2016, Express Scripts sent Irmat a letter demanding Irmat cease and desist its mailorder operations because they were in violation of the agreement. Irmat responded

with a letter referring to the August 2015 e-mail. On July 15, 2016, Express Scripts

replied that Irmat would be terminated from the network in sixty-one days, primarily

because of Irmat’s mail-order business. Irmat appealed the termination through

Express Scripts’s internal appeal process. Express Scripts affirmed its decision in a

letter dated August 22, 2016, which added that it was also terminating Irmat without

cause. Express Scripts terminated Irmat from its network on or about September 30,

2016. 

II.

We review de novo the grant of a motion to dismiss. Christiansen v. W. Branch

Cmty. Sch. Dist., 674 F.3d 927, 933-34 (8th Cir. 2012). We accept “as true the

complaint’s factual allegations and grant[ ] all reasonable inferences to the

non-moving party.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir.

2009). 

“To survive a 12(b)(6) motion to dismiss, ‘a complaint must contain sufficient

factual matter, accepted astrue, to state a claim to relief that is plausible on its face.’” 

McShane Constr. Co. v. Gotham Ins. Co., 867 F.3d 923, 927 (8th Cir. 2017) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “We assess plausibility considering

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only the materials that are ‘necessarily embraced by the pleadings and exhibits

attached to the complaint.’” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir.

2012) (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). 

A. 

1. 

Irmat argues that the agreement is unconscionable because it allowed Express

Scripts, but not Irmat, to terminate the agreement without cause. We have held that

“[a] bilateral contract is not rendered invalid and unenforceable merely because one

party has the right to cancellation while the other does not. There is no necessity ‘that

for each stipulation in a contract binding the one party there must be a corresponding

stipulation binding the other.’” Laclede Gas Co. v. Amoco Oil Co., 522 F.2d 33, 36

(8th Cir. 1975) (quoting James B. Berry’s Sons Co. v. Monark Gasoline & Oil Co.,

32 F.2d 74, 75 (8th Cir. 1929)). Thus, the inclusion of Express Scripts’s unilateral

right to terminate the agreement upon thirty days written notice is, by itself,

insufficient to support a claim of unconscionability. Id. at 37 (determining that a

cancellation clause will invalidate a contract only if its exercise is unrestricted).

Irmat further contends, however, that the agreement is also unconscionable

because it was a non-negotiable form contract, i.e., a contract of adhesion. “In

Missouri, an adhesion contract, as opposed to a negotiated contract, has been

described as a form contract created and imposed by a stronger party upon a weaker

party on a ‘take this or nothing basis,’ the terms of which unexpectedly or

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unconscionably limit the obligations of the drafting party.” Fuller v. TLC Prop. 2

Mgmt., LLC, 402 S.W.3d 101, 112 (Mo. Ct. App. 2013) (en banc) (internal quotation

marks and citations omitted). “Under Missouri law, however, the fact that a contract

is one of adhesion does not necessarily make it invalid.” Eaton v. CMH Homes, Inc.,

461 S.W.3d 426, 438 (Mo. 2015). Missouri has “identified a number of factors

indicating unconscionability [including] high pressure sales tactics . . . or unequal

bargaining positions.” Brewer v. Mo. Title Loans, 364 S.W.3d 486, 489 n.1 (Mo.

2012).

Irmat argues that the contract of adhesion is unconscionable because Express

Scripts exerted significant pressure on Irmat to enter into the agreement and had

greater bargaining power than Irmat. Specifically, Express Scripts threatened that if

Irmat did not complete and return the agreement, Irmat would be in breach of their

original network contract and suffer patient disruption. Irmat also cites its allegation

that more than 97% of all U.S. retail pharmacies participate in Express Scripts’s

network and that participating in Express Scripts’s network was a matter of business

necessity for Irmat. 

Irmat argues that this case is analogous to Brewer, in which the Missouri

Supreme Court found the contract at issue was unconscionable. In Brewer, the

plaintiff, an average consumer, contracted for a secured loan bearing an annual

interest rate of 300%. Id. at 487. The agreement required the plaintiff to submit any

claims against the defendant to individual arbitration, leaving the defendant free to

utilize the courts, id., a provision not present in this case. Furthermore, Irmat is a

sophisticated consumer that had operated successfully outside Express Scripts’s

network prior to 2012. Finally, as the district court properly noted, Irmat had access

to more than 100 PBM networks when it joined AccessHealth. See Crawford Prof’l

Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 264 (5th Cir. 2014) (noting there

The parties agree that Missouri law applies to the state-law claims. 2

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was no contract of adhesion wherein “[t]he Plaintiffs have failed to present any

evidence that they were prevented from contracting with another PBM”). Irmat has

thus failed to plausibly plead that the agreement was unconscionable. 

2.

Irmat next argues that Express Scripts violated its duty of good faith and fair

dealing when it terminated Irmat from its network. “Missouri law implies a covenant

of good faith and fair dealing in every contract.” Farmers’ Elec. Coop., Inc. v. Mo.

Dep’t of Corr., 977 S.W.2d 266, 271 (Mo. 1998). Under Missouri law, generally,

“there can be no breach of the implied promise or covenant of good faith and fair

dealing where the contract expressly permits the actions being challenged, and the

defendant acts in accordance with the express terms of the contract.” Arbors at Sugar

Creek Homeowners Ass’n v. Jefferson Bank & Tr. Co., 464 S.W.3d 177, 185 (Mo.

2015) (internal quotation marks and citations omitted). A party exercising its express

contract rights, however, may still breach the covenant if it does so “in a manner that

evades the spirit of the agreement and denies the movant the expected benefit of the

agreement.” Glenn v. HealthLink HMO, Inc., 360 S.W.3d 866, 877 (Mo. Ct. App.

2012).

Irmat does not deny that it violated the contract and that Express Scripts was

thus entitled to terminate Irmat from its network for cause. Irmat argues instead that

Express Scripts acted in bad faith by terminating Irmat on the basis of its

anticompetitive motives when exercising its right to terminate Irmat without cause. 

Irmat cites BJC Health System v. Columbia Casualty Co., 478 F.3d 908 (8th Cir.

2007), which we conclude isinapposite. We held in that case that under Missouri law

a jury could find that a party to a contract acted in bad faith when making a subjective

decision regarding the contract that may have been unreasonable and intentionally

designed to trigger a termination provision. Id. at 916; see also Martin v. Prier Brass

Mfg. Co., 710 S.W.2d 466, 472-73 (Mo. Ct. App. 1986) (determining that defendant

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acted in bad faith when it subjectively read contract terms to allow for termination of

benefits at will and without notice). Here, however, Express Scripts did not make a

discretionary decision in either defining the terms of the agreement or in exercising

its rights under the agreement. The Missouri Supreme Court has explicitly held that

a defendant does not act in bad faith when it acts in accordance with express

contractual rights that allow it to terminate the agreement without cause upon thirty

days notice. Bishop & Assocs. v. Ameren Corp., 520 S.W.3d 463, 471-72 (Mo.

2017); see also Amecks, Inc. v. Sw. Bell Tel. Co., 937 S.W.2d 240, 242-43 (Mo. Ct.

App. 1996) (concluding that defendant did not act in bad faith when it exercised its

contractual right to terminate the contract at any time with at least thirty days notice);

Martin v. Am. Family Mut. Ins. Co., 157 F.3d 580, 582 (8th Cir. 1998) (per curiam)

(“Because the agency contract unambiguously permitted termination of the agencies

at will . . . the covenant of good faith and fair dealing cannot give rise to a right

against termination.”) (internal citations omitted). Irmat does not dispute that Express

Scripts gave the proper notice required by the agreement, and thusit cannot claimbad

faith.

3.

Irmat next argues that Express Scripts’s August 2015 e-mail constituted a

novation of the agreement. It contendsthat the e-mail excised the prohibition against

operating a mail-order pharmacy fromthe agreement and abrogated Express Scripts’s

contractual rights to terminate Irmat for and without cause. Irmat argues that Express

Scripts thus breached this new contract when it terminated Irmat from the network. 

Express Scripts responds that because the e-mail was not a novation but merely a

contractually obligated step in the recredentialing process, there was no new contract

and thus no breach. See D.R. Sherry Constr., Ltd. v. Am. Family Mut. Ins. Co., 316

S.W.3d 899, 904 (Mo. 2010) (concluding that a breach of contract claim requires “a

contract between . . . the parties”).

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Under Missouri law, “[a] novation is a substitution of a new contract

obligation for an old one.” Health Related Servs., Inc. v. Golden Plains Convalescent

Ctr., Inc., 705 S.W.2d 499, 510 (Mo. Ct. App. 1985). The four elements needed for

a novation include: “(1) a previous valid obligation; (2) agreement of all parties to

a new contract; (3) extinguishment of an old contract; and (4) validity of a new

contract.” State ex rel. Premier Mktg., Inc. v. Kramer, 2 S.W.3d 118, 122 (Mo. Ct.

App. 1999). “In addition to these requirements, there must be evidence that the

parties intended to enter into a novation.” Id. The new contract must include “[t]he

essential elements of an enforceable contract [such as] parties competent to contract,

[the existence of] proper subject matter, legal consideration, mutuality of agreement,

and mutuality of obligation.” L.B. v. State Comm. of Psychologists, 912 S.W.2d 611,

617 (Mo. Ct. App. 1995). 

Irmat argues that the e-mail’s language constitutes evidence of Express

Scripts’s intent to abrogate the agreement and forma new contract. We conclude that

the e-mail was instead part of the recredentialing process required by the agreement. 

At most, the e-mail and the later cease-and-desistrequestsuggest that Express Scripts

delayed its recredentialing process. But any delay did not preclude Express Scripts

from denying credentials to Irmat under the agreement’s no-waiver provision, which

provides: 

No waiver of a breach of any covenant or condition shall be construed

to be a waiver of any subsequent breach. No act, delay, or omission

done, suffered, or permitted by the parties shall be deemed to exhaust or

impair any right, remedy, or power of the parties hereunder. 

Moreover, the e-mail lacks the essential elements of a contract and thus cannot

be construed as a lawful novation. See Premier Mktg., 2 S.W.3d at 122-23 (“A

novation . . . must be sufficiently definite to allow the court to determine its exact

meaning and to definitely measure the extent of the promisor’s liability.”). The email contains no material terms, no expiration date, no mention of the services

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Express Scripts would be providing, and no explanation of the rights and obligations

of each party. Lacking these essential contractual provisions, there thus was no

novation of the agreement.

B.

Alternatively, Irmat alleges that Express Scripts’s e-mail promised that Irmat

could continue in the network as a mail-order pharmacy. Irmat then relied on that

promise by building a multi-million dollar complex, hiring additional employees, and

spending resources to obtain accreditations. Under Missouri law, promissory

estoppel requires: “(1) a promise, (2) on which the party seeking to recover relied to

his or her detriment, (3) in a way the person making the promise expected or should

have expected, and (4) the reliance results in an injustice which can be cured only by

enforcement of the promise.” Hamra v. Magna Grp., Inc., 956 S.W.2d 934, 939 (Mo.

Ct. App. 1997). “In Missouri, promissory estoppel is not a favorite of the law, and

each element must clearly appear and be proven by the party seeking its

enforcement.” Glenn, 360 S.W.3d at 877 (internal quotation marks and citations

omitted).

Irmat fails to plausibly plead promissory estoppel. First, Express Scripts’s email does not explicitly state that Irmat could operate a mail-order pharmacy and

remain in Express Scripts’s network, thereby extinguishing the agreement’s

restriction on mail-order pharmacies. See Prenger v. Baumhoer, 939 S.W.2d 23, 26

(Mo. Ct. App. 1997) (explaining that “[t]he promise giving rise to the cause of action

must be definite”). Even if the e-mail were considered to be a promise, Irmat could

not have reasonably relied on it because the agreement unambiguously allows

termination without cause. We have held that when a contract unambiguously

permits termination at will, “promissory estoppel cannot be used to create a right

preventing termination.” Martin, 157 F.3d at 582 (citing Hamra, 956 S.W.2d at 939);

see also Clearly Canadian Beverage Corp. v. Am. Winery, Inc., 257 F.3d 880, 890

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(8th Cir. 2001) (“[P]romissory estoppel cannot be used to create rights not included

in the contract.” (citing Halls Ferry Invs., Inc. v. Smith, 985 S.W.2d 848, 853 (Mo.

Ct. App. 1998)). The e-mail, then, could not prevent Express Scripts’s termination

of Irmat. The district court thus did not err in dismissing Irmat’s promissory estoppel

claim.

C.

1.

Irmat argues that Express Scripts violated Section 1 of the Sherman Act by

conspiring with other PBM-owned, mail-order pharmacies to boycott independent

mail-order pharmacies. “Liability under § 1 of the Sherman Act, 15 U.S.C. § 1,

requires a ‘contract, combination . . . , or conspiracy, in restraint of trade or

commerce.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548 (2007). “‘[T]he crucial

question’ is whether the challenged anticompetitive conduct ‘stem[s] from

independent decision or from an agreement, tacit or express.’” Id. at 553 (second

alteration in original) (quoting Theatre Enters., Inc. v. Paramount FilmDistrib. Corp.,

346 U.S. 537, 540 (1954)). To survive a Rule 12(b)(6) motion to dismiss, “an

allegation of parallel conduct and a bare assertion of conspiracy will not suffice.” Id.

at 556. “However, [a]n allegation of parallel conduct . . . gets the complaint close to

stating a claim,” and “[w]ith ‘further factual enhancement,’ plaintiffs can ‘nudge[ ]

their claims across the line from conceivable to plausible.’” In re Pre-Filled Propane

Tank Antitrust Litig., 860 F.3d 1059, 1069 (8th Cir. 2017) (alterations in original)

(quoting Twombly, 550 U.S. at 557, 570). 

Irmat fails to plausibly plead parallel conduct. It claims that CVS and Express

Scripts conspired to terminate Irmat from their PBM networks because it operated a

mail-order pharmacy that competed with Express Scripts’s and CVS’s mail-order

pharmacies. Irmat had been a member of CVS’s pharmacy networks since 2012. In

August 2016, CVS required Irmat to participate in its mail-order network, three

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months after Express Scripts sent Irmat a letter demanding that Irmat abandon its

mail-order pharmacy operations. Although CVS later terminated Irmat from its

pharmacy networks on February 3, 2017, the fact that CVS allowed Irmat to join in

its mail-order network at all suggests that CVS and Express Scripts did not conspire

to boycott Irmat. Irmat contends, however, that the August 2016 requirement to

participate in CVS’s mail-order pharmacy network was a veiled plan to reimburse

Irmat at lower rates than it had paid in the past. Irmat also claims that CVS subjected

Irmat to abusive audits throughout the years. Even assuming the truth of those

allegations, there is no evidence that Express Scripts joined in CVS’s conduct. 

Express Scripts never required Irmat to enter into a mail-order network so that it

could reimburse prescriptions at lower rates, nor does Irmat contend that Express

Scripts ever subjected Irmat to abusive audits.

The only allegation that hints at parallel conduct is that both CVS and Express

Scripts terminated Irmat from their networks. But the terminations lack temporal

proximity. Express Scripts notified Irmat of termination in July 2016, six months

before CVS notified Irmat oftermination. In determining whether six months wastoo

long of a time frame to suggest parallel activity, the district court looked to In re

Graphics Processing Units Antitrust Litigation, 527 F. Supp. 2d 1011, 1022 (N.D.

Cal. 2007), in which the court found that three months between actions fell “short of

unusual, lockstep . . . behavior.” We do not hold that actionstaken within six months

of each other can never constitute parallel conduct, but only that the terminations

here, executed under dissimilar circumstances and separated by six months, did not

constitute parallel conduct. See Burtch v. Milberg Factors, Inc., 662 F.3d 212, 228-

29 (3d Cir. 2011) (dismissing group boycott claim partly because the conduct of the

defendants was not similar). Because Irmat fails to plausibly plead parallel conduct,

no discussion of any “plus factors” is necessary. The district court correctly

dismissed Irmat’s Section 1 claim.

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2.

Irmat alleges that Express Scripts violated Section 2 of the Sherman Act

because it leveraged its power as a PBM to exclude mail-order pharmacies from its

PBM network. This led to Express Scripts’s having a monopoly power in the

submarket for mail-order services to Express Scripts members. Section 2 makes it

unlawful to “monopolize, or attempt to monopolize . . . any part of the trade or

commerce among the several States.” 15 U.S.C. § 2. To state a monopoly claim,

Irmat must plead a plausible relevant market and that Express Scripts engaged in

anticompetitive conduct. Verizon Commc’nsInc. v. Law Offices ofCurtis V. Trinko,

LLP, 540 U.S. 398, 407 (2004).

Irmat first failsto plead a relevant market. “It isthe plaintiff’s burden to define

the relevant market.” Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554,

560 (8th Cir. 1998). “The definition of the relevant market has two components—a

product market and a geographic market.” Bathke v. Casey’s Gen. Stores, Inc., 64 3

F.3d 340, 345 (8th Cir. 1995). “The relevant product market includes all reasonably

interchangeable products.” Double D Spotting Serv., 136 F.3d at 560 (citing Queen

City Pizza, Inc. v. Domino’s Pizza, Inc., 124 F.3d 430, 436 (3d Cir. 1997)). In

exceptional circumstances, a relevant market can be defined by the defendant’s own

product or service. See Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S.

451, 482 (1992).

Irmat claims that the relevant market is the market for mail-order pharmacy

servicesto Express Scripts members–a submarket made up of only Express Scripts’s

services within the broader market of all mail-order pharmacy services. See Brown

Shoe Co. v. United States, 370 U.S. 294, 325 (1962). We conclude that Irmat’s

market is too narrowly defined. Express Scripts is not the only mail-order pharmacy

The parties agree that the relevant geographic market is the United States. 3

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available to consumers. Irmat thus fails to include all interchangeable mail-order

pharmacy services in its relevant market. See Little Rock Cardiology Clinic PA v.

Baptist Health, 591 F.3d 591, 597-98 (8thCir. 2009) (concluding plaintiff’s proposed

relevant market was too narrow because it omitted potential customers). Further,

absent contractual restrictions, the customers of Irmat’s proposed market–health

insurance plans–are free to choose other PBMs or independent pharmacies that offer

mail-order pharmacy services. See Queen City Pizza, 124 F.3d at 438 (refusing to

adopt the position that “contractual restraints render otherwise identical products

non-interchangeable for purposes of relevant market definition”). The district court

thus correctly concluded that Irmat had failed to plead a relevant market. See Little

RockCardiology Clinic, 591 F.3d at 601 (8thCir. 2009) (affirming the district court’s

dismissal of plaintiff’s Section 2 claim because plaintiff failed to show a proper

relevant market).

Irmat also fails to allege that Express Scripts engaged in anticompetitive

conduct. “[T]he possession of monopoly power will not be found unlawful unless it

is accompanied by an element of anticompetitive conduct.” Trinko, 540 U.S. at 407. 

Generally, Section 2 of the Sherman Act does not restrict the right “of [a] trader or

manufacturer engaged in an entirely private business, freely to exercise his own

independent discretion as to parties with whom he will deal.” Id. at 408 (alterations

in original) (internal quotation marks and citations omitted). The Supreme Court has

recognized a “limited exception” to the right to refuse to deal with other firms. Id.

at 409 (citing Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601

(1985)). In Aspen, the Court affirmed a jury verdict for a plaintiff ski company that

alleged that a competitor ski business had violated Section 2 of the Sherman Act. 

Aspen, 472 U.S. at 595, 611. The defendant had begun to sell a discounted lift ticket

to the three ski areas it owned, after years of cooperating with plaintiff in selling joint

tickets to both the defendant’s and plaintiff’s ski areas. Id. at 591-93. The “limited

exception” set forth in Aspen is not applicable here. Irmat and Express Scripts did

not have a voluntary, years-long relationship regarding their competing mail-order

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pharmacies. Irmat has failed to plausibly allege anticompetitive conduct on Express

Scripts’s part, and the district court thus correctly dismissed Irmat’s Section 2 claim.

3.

Irmat alleges that Express Scripts violated Section 1 of the Sherman Act by

engaging in a tying arrangement when it “exercised its market power to force its retail

pharmacy network members to refrain from dispensing drugs via mail-order

delivery.” A tying arrangement is “an agreement by a party to sell one product but

only on the condition that the buyer also purchases a different (or tied) product, or at

least agrees that he will not purchase that product from any other supplier.” Eastman

Kodak, 504 U.S. at 461-62 (quoting N. Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6

(1958)).

For a plausible tying claim in this situation, Irmat must have alleged that

Express Scripts conditioned participation in its PBM network on either the purchase

of a tied product or service, or on refraining from the purchase of a tied product or

service. Irmat instead alleges that Express Scripts conditioned participation in its

PBM network on the requirement that Irmat refrain from operating a competing

business. This, in turn, is a repackaged attempt at Irmat’s monopoly claim and fails

for the reasons stated above. The district court thus did not err in dismissing Irmat’s

tying claim.

D.

Finally, Irmat alleges that Express Scripts violated the Any Willing Provider

laws of Georgia, Mississippi, and North Carolina when it denied Irmat the

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opportunity to mail prescriptionsto Express Scripts membersin each of these states.

4

Irmat has pointed to no case law that suggests that these laws apply to PBMs, and we

decline to extend the reach of these laws to PBMs as a matter of first impression. See

Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 673 (8th Cir. 2009) (concluding that

“is not the role of a federal court to expand state law in ways not foreshadowed by

state precedent”) (internal quotation marks and citations omitted). 

III.

Irmat argues that the district court should have granted Irmat leave to amend

its complaint to replead more specific facts. But Irmat never moved to amend its

complaint, nor did it request such relief in its memorandum in opposition to Express

Scripts’s motion to dismiss. See United States v. Mask of Ka-Nefer-Nefer, 752 F.3d

737, 742 (8th Cir. 2014) (“[A] district court in granting a motion to dismiss is not

obliged to invite a motion for leave to amend if plaintiff did not file one.”). Further,

Irmat did not include a proposed amendment in its brief. See Wolgin v. Simon, 722

F.2d 389, 395 (8th Cir. 1983) (“[T]o preserve the right to amend a complaint a party

must submit a proposed amendment along with its motion.”). 

The district court’s order of dismissal is affirmed.

______________________________

Ga. Code Ann. § 26-4-144; Miss. Code. Ann. § 83-9-6; and N.C. Gen. Stat.

4

§ 58-51-37.

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