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THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BCBSM, INC, (d/b/a BLUE CROSS and BLUE

SHIELD of MINNESOTA), HEALTH NEW 

YORK, INC, HORIZON HEALTHCARE 

SERVICES, INC. (d/b/a HORIZON BLUE 

CROSS BLUE SHIELD OF NEW JERSEY), 

BLUE CROSS AND BLUE SHIELD OF 

ARIZONA, INC. (d/b/a BLUE CROSS BLUE 

SHIELD OF ARIZONA and d/b/a AZBLUE), 

ASURIS NORTHWEST HEALTH, et al., 

 Plaintiffs,

 v.

WALGREEN CO. and WALGREENS BOOTS

ALLIANCE, INC., 

 Defendants and Third-Party Plaintiffs,

 v.

PRIME THERAPEUTICS LLC,

 Third-Party Defendant.

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 No. 20 C 1853

 No. 20 C 1929

 No. 20 C 3332

 No. 20 C 4940

 No. 20 C 4738

 Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

The Plaintiffs in this case are health care plans offering comprehensive health care services 

and coverage, including prescription drug coverage, to their members in locations across the 

United States. Defendants are Walgreen Co. and Walgreens Boots Alliance, Inc. (together 

“Walgreens”) who allegedly engaged in a fraudulent scheme to overcharge Plaintiffs for 

prescription drugs by submitting claims for payment at artificially inflated prices. Walgreens now 

brings a Verified Counterclaim alleging that Plaintiffs have knowingly aided and abetted Crowell 

& Moring LLP’s (“Crowell”) breaches of its fiduciary duties to Walgreens, Crowell’s former 

client. (Dkt. 149 at 179–202). Relatedly, Plaintiffs have filed a “Motion for Qualification of 

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Counsel” seeking an order that Crowell is qualified to serve as their attorneys in this action. (Dkt. 

158). Walgreens also brings a Third-Party Complaint (“TPC”) against Prime Therapeutics LLC 

(“Prime”), one of Plaintiffs’ pharmacy benefit managers (“PBM”), seeking contribution and 

indemnification. (Dkt. 151). 

Now before the Court are three motions. First, Walgreens moves to strike Plaintiffs’ 

Motion for Qualification of Counsel. (Dkt. 163). Next, Plaintiffs move to dismiss Walgreens’ 

Counterclaim. (Dkt. 187). Last, Prime moves to dismiss Walgreens Third-Party Complaint. (Dkt. 

188). For the reasons set forth below, the Court grants Walgreens’ Motion to Strike [163]; denies

Plaintiffs’ Motion to Dismiss Walgreens’ Counterclaim [187]; and grants Prime’s Motion to 

Dismiss Walgreens’ Third-Party Complaint [188]. 

BACKGROUND

I. Crowell and Walgreens’ Attorney-Client Relationship

On a motion to dismiss under Rule 12(b)(6), the Court accepts the complaint’s wellpleaded factual allegations, with all reasonable inferences drawn in the non-moving party’s favor, 

but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 

2014). Unless otherwise noted, the following factual allegations are taken from Walgreens’ 

Verified Counterclaim, (Dkt. 149 at 179–202), and are assumed true for purposes of Plaintiffs’ 

Motion to Dismiss, (Dkt. 187). W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670, 675 (7th Cir. 

2016). 

A. Crowell’s Prior Representation of Walgreens

In 2006, Walgreens launched its Prescription Savings Club (“PSC”) program – an initiative 

that made prescription drugs more affordable for uninsured and underinsured consumers. (Dkt. 

149 at 190 ¶ 54). After launching it nationwide in August 2008, Walgreens hired Crowell for legal 

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advice concerning the PSC program in 2008 and 2009. (Id. ¶¶ 55–56). Among other things, 

Crowell provided legal advice on how prescription prices under the PSC program might affect the 

usual and customary (“U&C”) prices that Walgreens reports in insurance reimbursement claims. 

(Id. ¶ 55 (further explaining that U&C prices sometimes cap reimbursements paid by health 

insurers for insureds’ prescription drugs)). 

Walgreens first requested Crowell’s legal advice concerning the PSC program in 

September 2008. (Id. ¶ 56). Crowell’s assistance related to (1) a proposed pharmacy discount 

card and (2) a proposed enhancement to Walgreens’ PSC program. (Id. ¶¶ 56–57). Crowell 

ultimately created and retained privileged work product for Walgreens which included information 

about the potential impact of discount cards on the U&C prices reported in Walgreens’ 

reimbursement claims. (Id. at 191 ¶ 59). Walgreens again requested Crowell’s legal advice in 

October 2008 after receiving a letter from Connecticut Medicaid regarding reporting PSC prices 

as U&C. (Id. ¶¶ 60–62). Crowell provided counsel regarding Walgreens’ response to this inquiry 

by reviewing the agency’s letter and reviewing and commenting on Walgreens’ draft response. 

(Id. ¶¶ 62–63). Crowell later advised Walgreens on a separate question about U&C prices and 

PSC in January 2009. (Id. at 192 ¶ 65). Finally, in April 2009, Walgreens requested that Crowell 

conduct a national survey related to discount card programs and a proposed enhancement to PSC. 

(Id. ¶ 66 (further noting that Crowell delivered its work product in May and June 2009)). 

Crowell received privileged and confidential information from Walgreens in connection 

with its work on these PSC and U&C matters, and Crowell created and retained privileged work 

product for Walgreens regarding the same. (Id. at 191–93 ¶¶ 58, 63, 70). In addition, Crowell 

submitted – and Walgreens paid – invoices for this work between October 2008 and July 2009. 

(Id. at 192 ¶ 67). Walgreens maintains that in light of these facts, it reasonably believed to exist 

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an attorney-client relationship between itself and Crowell between at least the fall of 2008 and 

mid-2009. (Id. ¶ 70). As a result, per Walgreens, Crowell (1) owes fiduciary duties to Walgreens 

as a former client, and (2) may not take a materially adverse position to Walgreens in any matter 

substantially related to the prior representation without Walgreens’ written consent. (Id. at 193–

94 ¶¶ 71, 76, 79 (referring to the ABA Model Rules of Professional Responsibility, the District of 

Columbia Rules of Professional Conduct, and the Illinois Rules of Professional Conduct)). 

B. Crowell’s Alleged Breach of Fiduciary Duties

In March 2020, Walgreens received two pre-litigation demand letters from Crowell 

explaining Plaintiffs’ “concern[] that Walgreens has overcharged them by failing to include PSC 

Program prices in its calculation of U&C prices.” (Id. at 193 ¶¶ 73–74). Crowell subsequently 

filed suit on Plaintiffs’ behalf alleging that Walgreens defrauded Plaintiffs by failing to include 

PSC prices in its U&C reporting – including in 2008 and 2009, when Crowell provided Walgreens 

legal advice about such reporting requirements. (Id. at 194 ¶¶ 77–78; cf. id. at 193 ¶¶ 72 (“[C]ertain 

Plaintiffs . . . retained Crowell and financially incentivized the law firm to switch sides and 

represent them against Walgreens on the very same issues as to which Crowell had previously 

advised Walgreens.” (emphasis in original)), 75 (“As even Crowell’s March 2020 letters on 

Plaintiffs’ behalf make clear, Crowell’s current representation of Plaintiffs is substantially related 

to Crowell’s earlier representation of Walgreens.”)). 

Walgreens maintains that Crowell’s representation of Plaintiffs in this action violates rules 

of professional responsibility, because Plaintiffs’ claims relate to substantially similar subject 

matter of Crowell’s prior representation of Walgreens. (E.g., id. at 194 ¶¶ 76 (“The ABA, the 

District of Columbia, and Illinois all broadly prohibit lawyers from switching sides to sue a former 

client on the subject of a prior engagement.”), 79 (“Crowell had an obligation to obtain informed 

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consent from both Walgreens and Plaintiffs before agreeing to this side-switching 

representation.”); see also id. at 200–01 ¶¶ 103–07 (setting forth Crowell’s fiduciary duty of 

loyalty)). Walgreens opines that Crowell might “expose its confidential and privileged 

information about PSC [to Plaintiffs] or use that information to Walgreens’ disadvantage” in this 

litigation. (Id. at 195 ¶ 82). In addition, Walgreens claims that Crowell’s breaches have 

proximately caused it to incur “significant expenses” – including while litigating against Crowell 

in a separate action for Crowell’s “duty breaches in this and other cases.” (Id. ¶ 81; see generally

id. at 195–98 ¶¶ 85–95 (providing background on Walgreens’ lawsuit against Crowell pending 

before the Superior Court of the District of Columbia)). The D.C. court recently denied Crowell’s 

motion to dismiss Walgreens’ complaint in that suit. (Id. at 198 ¶ 92). The court held, in relevant 

part, that “Walgreen[s] has set forth sufficient facts in the amended complaint to support a claim 

for breach of fiduciary duty that is plausible.” (Id.). 

C. Plaintiffs’ Alleged Aiding and Abetting of Crowell’s Breach 

Plaintiffs continue to retain Crowell as counsel in the present litigation. (Id. at 199 ¶ 98). 

However, per Walgreens, Plaintiffs know that Crowell is in breach of its fiduciary duties to 

Walgreens and that they are “facilitating, encouraging, and assisting those breaches.” (Id. at 201 

¶ 108). Walgreens highlights the following facts to support its claim that Plaintiffs are aware of 

Crowell’s fiduciary breach. First, Walgreens notes that Crowell had an ethical obligation to inform 

Plaintiffs of its conflict of interest in this case. (Id. at 183 ¶ 15, 195 ¶ 83 (“If Crowell honored its 

ethical obligations to inform Plaintiffs of its conflict of interest, then Plaintiffs necessarily knew 

about Crowell’s conflict.”)). Second, Plaintiffs learned of the conflict through Walgreens’ lawsuit 

against Crowell before the D.C. Superior Court – which pleads a claim for breach of fiduciary 

duty, survived a motion to dismiss, and has repeatedly garnered press from national news outlets. 

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(Id. at 197 ¶ 88 (explaining that Walgreens’ suit “put Plaintiffs on notice of the facts underlying 

Crowell’s breaches of its fiduciary duties to Walgreens”); see also id. at 195–98 ¶¶ 85–95). 

Finally, on July 8, 2021, Walgreens sent a cease-and-desist letter to Plaintiffs through their counsel 

– Crowell – documenting Crowell’s alleged breaches of its fiduciary duties and Plaintiffs’ role in 

aiding and abetting the breaches. (Id. at 184 ¶ 19, 199 ¶ 97). In that letter, Walgreens demanded 

that “each Plaintiff [ ] cease and desist from continuing to retain Crowell to pursue claims against 

Walgreens involving U&C price reporting issues.” (Id. at 199 ¶ 97; see also Dkt. 149-2 at 1–3 

(attaching Walgreens’ letter to Plaintiffs, explaining that Crowell “previously provided legal 

advice to Walgreens regarding [the PSC], including the effect, if any, that prices offered to PSC 

members might have on Walgreens [U&C] prices”)). 

In light of the foregoing facts, Walgreens filed a Counterclaim asserting that Plaintiffs are 

“substantially and knowingly aiding and abetting Crowell’s breaches of its fiduciary duties” to 

Walgreens by “retaining and compensating Crowell to pursue these [consolidated] cases in 

violation of its ethical duties; allowing Crowell to sign, file, and serve pleadings as their counsel; 

and providing Crowell with information and other assistance that allows Crowell to continue 

litigating these cases against” Walgreens. (Dkt. 149 at 199–200 ¶ 99; see also id. at 200 ¶ 100 

(adding that Plaintiffs are financially compensating Crowell and have provided Crowell with 

“instructions and significant information, evidence, and other materials” to aid in its work on 

Plaintiffs’ behalf), 200–02 ¶¶ 102–10 (pleading Count I, “Aiding & Abetting Breaches of 

Fiduciary Duties,” against Plaintiffs)). In Walgreens’ view, “Crowell’s breaches would not be 

possible without Plaintiffs’ active participation.” (Id. at 200 ¶ 101). 

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D. Plaintiffs Move to Qualify Counsel

On July 30, 2021 – after Walgreens filed its Verified Counterclaim – attorneys from 

Perkins Coie LLP (“Perkins Coie”) entered appearances on behalf of Crowell, although it is not a 

party to this action. (See Dkts. 156–57; see also Dkts. 179–80 (Perkins Coie’s supplemental 

appearances for Plaintiffs); Dkt. 183 at 5 n.5 (“[T]he local attorneys from Perkins Coie LLP . . . 

formally clarify that they represent . . . Plaintiffs too for purposes of the Motion to Qualify.”)). On 

the same date, Perkins Coie filed four documents with the Court: (1) Plaintiffs’ Motion for 

Qualification of Counsel, (Dkt. 158); (2) Plaintiffs’ Motion for Leave to File under Seal, (Dkt. 

159); (3) Plaintiffs’ sealed Memorandum of Law in Support of Their Motion, (Dkt. 160); and (4) 

Plaintiffs’ Motion for Leave to File Excess Pages, (Dkt. 161). Through Plaintiffs’ Motion for 

Qualification of Counsel, Plaintiffs seek an order stating that no conflict of issue exists that 

warrants Crowell’s dismissal or withdrawal from this case. (Dkt. 183 at 1). Walgreens now moves 

to strike Plaintiffs’ motion and supporting filings on several grounds, including for its procedural 

impropriety. (Dkt. 163). 

II. Walgreens’ Third-Party Complaint

The following factual allegations are taken from Walgreens’ TPC, (Dkt. 151), and are 

assumed true for purposes of Prime’s Motion to Dismiss, (Dkt. 188). W. Bend Mut. Ins. Co., 844 

F.3d at 675. Third-Party Defendant Prime is a PBM that is owned by and is the agent of several 

Plaintiffs in the underlying Complaint (the “Prime Plans”). (Dkt. 151 ¶¶ 1, 18, 21). The Prime 

Plans enlist Prime to adjudicate Walgreens’ prescription drug reimbursement claims and 

administer prescription drug benefits on the Prime Plans’ behalf. (Id. ¶ 27; see also id. ¶¶ 18, 25, 

35). For example, when the Prime Plans’ insureds fill their prescriptions at Walgreens, Walgreens 

submits reimbursement claims to Prime. (Id. ¶ 28). These reimbursement claims list applicable 

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U&C prices and other basic information about each transaction. (Id.). Prime evaluates Walgreens’ 

claims against coverage and payment criteria set by the Prime Plans, and ultimately remits payment 

to Walgreens on behalf of the Prime Plans. (Id. ¶¶ 28, 30). Prime controls the flow of information 

and payments between Walgreens and the Prime Plans throughout the claims process. (Id. ¶¶ 31–

32, 36 (“Only Prime knows and understands both how much the Prime Plans pay and how much 

Walgreens receives for any reimbursement claim, and only Prime knows and understands how its 

contracts with both Walgreens and the Prime Plans define U&C.”)). 

Between March 2008 and the present, two separate contracts governed Walgreens’ 

relationship with Prime. (Id. ¶ 42). The first of these contracts had an effective date of March 1, 

2008 (the “2008 Agreement”). (Id. ¶ 42(a); Dkt. 151-1). The second had an effective date of 

August 26, 2016 (the “2016 Agreement”). (Dkt. 151 ¶ 42(b); Dkt. 151-2). Both contracts defined 

U&C to exclude PSC prices. (Dkt. 151 ¶¶ 41–42). Walgreens claims that it was common practice 

among large pharmacies not to report discounted prices as their contractually-defined U&C prices, 

(id. ¶¶ 40, 51–52), and further that Prime knew this was “standard industry practice,” (id. ¶ 41; see 

also id. ¶ 45 (“Prime representatives have admitted under oath that when Prime received pharmacy 

pricing data as a middleman, ‘Prime had no expectation of pharmacies to submit pricing from . . . 

opt-in savings programs [like PSC] as their U&C pricing.’ ”)). 

Although Prime knew that Walgreens excluded PSC prices from its U&C reporting, the 

Prime Plans believed that Walgreens’ reported U&C prices included PSC pricing. (Id. ¶ 47; see 

also id. ¶¶ 2–7 (“Prime always knew that it was not receiving from Walgreens and passing along

to the Prime Plans U&C prices that incorporated PSC prices.”)). Nonetheless, Prime never 

informed the Prime Plaintiffs about Walgreens’ price reporting policies or the industry standards 

for U&C reporting. (Id. ¶ 4). Nor did Prime inform Walgreens that the Prime Plans expected 

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Walgreens to include PSC prices in its U&C reporting. (Id.). Walgreens argues that these failures 

on Prime’s part violated the 2008 Agreement. (Id. ¶¶ 67, 297–98). Walgreens specifically 

highlights Section 3.3 of the 2008 Agreement, which reads: 

Marketing Materials. Prime will accurately describe and represent the role of 

Pharmacy [namely Walgreens] in providing services contemplated under this 

Agreement in all communications, including marketing and advertising materials, 

to Benefit Sponsors [such as the Prime Plans], potential Benefit Sponsors, and, if 

applicable, Covered Persons and potential Covered Persons.

(Dkt. 151-1 at 11). Walgreens argues that this “and other implicit or explicit provisions” required 

Prime to accurately inform the Prime Plans of Walgreens’ U&C price reporting practices, 

including the fact that Walgreens excludes PSC prices from U&C. (Dkt. 151 ¶ 68). Walgreens 

claims that Prime negligently took or omitted to take actions related to its performance of Section 

3.3 of the 2008 Agreement when it failed to accurately convey such information to the Prime Plans. 

(Id. ¶¶ 63, 69). 

The Prime Plans have brought suit against Walgreens challenging Walgreens’ PSC pricing 

practices in its U&C reporting. (Id. ¶¶ 68–69). According to Walgreens, the Prime Plans’ suit is 

a direct result of Prime’s alleged breach of the 2008 Agreement. (Id. ¶ 69). It argues that Prime 

“necessarily will have breached its obligations under Section 3.3” if Plaintiffs’ claims ultimately 

have merit, (id. ¶ 298), resulting resulted from Prime’s (1) “[f]ailing to inform the Prime Plans of 

Walgreens’ actual U&C reporting obligations,” (2) “[f]ailing to inform the Prime Plans for over a 

decade that Walgreens does not in fact include PSC pricing in its U&C reporting,” and (3) 

“[f]ailing to inform the Prime Plans of Prime’s own understanding of Walgreens’ U&C reporting 

obligations,” (id. ¶ 299). As such, Walgreens maintains that it is entitled to “full contribution from 

Prime” for “any liability” Walgreens might have to the Prime Plans in the underlying suit. (Id. ¶ 

15 (emphasis added); see also, e.g., id. ¶ 76 (“Should the Walgreens Parties be held liable to 

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Plaintiffs . . . [they] will be entitled to contribution from Prime for all liability the Walgreens 

Parties are found to owe the Prime Plans.”) (emphasis added)).1 

Walgreens further alleges under Section 8.2 of the 2008 Agreement, Prime must indemnify 

Walgreens for the Prime Plans’ claims against Walgreens in this litigation. (Dkt. 151 ¶¶ 292–319). 

Section 8.2 provides as follows:

Indemnification by Prime. Prime agrees to defend, indemnify and hold Pharmacy 

[Walgreens] harmless from and against all claims or suits asserted by a third 

party(ies) and related losses, damages and expenses, including but not limited to 

reasonable attorneys’ fees, costs and expenses to the extent they are arising out of 

or resulting from Prime’s breach of or any negligent act or omission of Prime 

relating to this Agreement.

(Dkt. 151-1 at 19 (emphasis added)). Prime “unequivocally refuse[d] to indemnify Walgreens for 

any attorneys’ fees, court costs, other litigation costs, damages, fines, penalties, or other monetary 

relief related to Prime’s role” as a PBM. (Dkt. 151 ¶ 72; see also Dkt. 151-3 at 2). As such, 

Walgreens alleges that Prime has anticipatorily repudiated its contractual indemnification 

obligations. (Dkt. 151 ¶ 73). Walgreens ultimately filed a TPC against Prime on July 26, 2021, 

bringing counts for contribution under state laws and common law (Counts I–X), (id. ¶¶ 74–291); 

a declaration of Prime’s indemnity obligations under the 2008 Agreement (Count XI), (id. ¶¶ 292–

305); and Prime’s anticipatory repudiation of those obligations (Count XII) (id. ¶¶ 306–19). 

1 Walgreens’ TPC repeatedly suggests that Prime should be held responsible for “any” liability found against 

Walgreens in the underlying suit. (E.g., Dkt. 151 ¶¶ 11 (“If . . . the Prime Plans truly believed . . . that they were 

entitled to and were receiving [U&C prices that included PSC pricing], they were badly misled by Prime.”); 14 

(“Prime’s misrepresentations to and deception of the Prime Plans regarding Walgreens’ U&C reporting obligations 

and practices were the proximate cause of any harm the Prime Plans may have incurred.” (emphasis added)); 47 

(“Prime itself is wholly to blame for any purported misapprehension by the Prime Plans regarding Walgreens’ U&C 

obligations and practices.” (emphasis added)); 48 (“Prime is the only plausible source of any delusion on behalf of 

the Prime Plans that they were entitled to and received [U&C prices that included PSC pricing].” (emphasis added)); 

59 (“If the Prime Plans mistakenly believed they were getting Walgreens’ [U&C prices that included PSC pricing], 

that misunderstanding . . . certainly did not come from Walgreens.”); 64 (“Prime is the chief intervening proximate 

cause of any harm [the Prime Plans] incurred.” (emphasis added))). 

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WALGREENS’ MOTION TO STRIKE

On July 26, 2021, Walgreens brought a Counterclaim alleging that Plaintiffs are aiding and 

abetting Crowell’s breach of fiduciary duties to Walgreens as Walgreens’ former attorneys. (See

Dkt. 149 at 179–202). Shortly thereafter, Plaintiffs filed a “Motion for Qualification of Counsel” 

(the “Motion”). (Dkt. 158). This Motion seeks an order from the Court setting forth that Crowell 

is qualified to serve as Plaintiffs’ attorneys in this case on the grounds that (1) Crowell has no 

conflict of interest under Rule 1.9 of the ABA Model Rules of Professional Conduct, and (2) 

Walgreens has “waived, forfeited and relinquished any right to claim to the contrary.” (Dkt. 160 

at 2–3). Walgreens moved to strike the Motion, arguing, among other things, that it is incognizable 

under the Federal Rules and amounts to a request for an advisory opinion. (E.g., Dkt. 163 ¶ 9 

(“There is no such thing as a ‘motion to qualify,’ and Walgreens has not moved to disqualify 

Crowell.”)). In opposition, Plaintiffs maintain that their Motion is procedurally proper, (Dkt. 183 

at 7–10), and presents a justiciable question to the Court, (id. at 1 (“The parties and the Court 

should not be left in limbo with an accusation of ethical impropriety and the related threat of a 

motion to disqualify looming over the proceedings.”), 10–12). 

Plaintiffs suggest that “motions to qualify” are logical extensions of, or alternatives to, 

motions to disqualify. (E.g., Dkt. 183 at 7 (“[T]he Court’s inherent power to address conflict issues 

does not depend on who brings the issue to the attention of the Court or how it is brought to the 

Court’s attention.” (emphasis in original)); 9 (“A Motion to Qualify invokes precisely the same 

judicial authority as a Motion to Disqualify. . . . [T]he cases . . . leave no doubt that a Rule 1.9 

conflict issue may properly be raised by Motion to Qualify or its equivalent.”)). Plaintiffs further 

opine:

The time-honored way to address a claim of conflict of interest is by filing a timely 

Motion to Disqualify. But if the party claiming the conflict does not bring a Motion 

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to Disqualify, the issue may be brought to the Court’s attention by any attorney, 

and certainly by a party or parties whose counsel is accused of acting improperly 

by representing them in the case. . . . Given the attorneys’ ethical obligation to bring 

such matters to the Court’s attention, it must be equally clear that counsel can do 

so in order to defend its own right to appear in the action, as well as to question its 

opponent’s right to do so.

(Id. at 4–5). However, this assertion is not borne out by the law. Plaintiffs fail to cite a single case 

in which a court directly ruled on a preemptive motion to qualify akin to the Motion presently 

before the Court. For instance, Plaintiffs point to the Seventh Circuit’s decision in Schiessle v. 

Stephens, 717 F.2d 417 (7th Cir. 1983) as support for their requested relief. While it is true that 

plaintiffs’ law firm in that matter requested a “declaration of qualification as counsel,” the issue in 

that case centered on defense counsel’s cross-motion to disqualify. Id. at 419. There, the Seventh 

Circuit affirmed the district court’s order of disqualification and said nothing about the propriety 

of plaintiffs’ motion to qualify as a standalone motion. See generally id. Plaintiffs also refer the 

Court to dicta contained in Healy v. Axelrod Const. Co. Defined Ben. Pension Plan & Tr., 155 

F.R.D. 615 (N.D. Ill. 1994) (stating that a party “would have been well advised to early on seek 

an order regarding its qualification”). No motion to qualify was filed – let alone ruled upon – in 

that case, however, and so offers no support to Plaintiffs’ claims here. Id. at 622. The other cases 

Plaintiffs cite are from outside this jurisdiction and are not on-point for similar reasons as Schiessle

and Healy. See Classic Indus., LP v. Mitsubishi Chem. FP Am., Inc., No. 3:07-cv-1201, 2009 WL 

10677531, at *1–3 n.1 (N.D. Tex. Feb. 17, 2009) (applying legal standard for motions to 

disqualify; party filed a motion to disqualify “as a precaution ‘to cure any procedural deficiencies 

or ripeness issues resulting from [opposing party’s] preemptive qualification motion’ ”); Eng’d 

Prods. Co. v. Donaldson Co., Inc., 290 F. Supp. 2d 974, 975 (N.D. Iowa 2003) (applying legal 

standard for disqualification motions; cross-motion to disqualify counsel filed); NFC, Inc. v. Gen. 

Nutrition, Inc., 562 F. Supp. 332 (D. Mass. 1983) (same); United States v. Standard Oil Co., 136 

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F. Supp. 345, 348 (S.D.N.Y. 1955) (same). Furthermore, the Court is unable to find any cases 

ruling on a motion to qualify counsel absent a cross-motion to disqualify, nor precedent otherwise 

recognizing the use of motions to qualify as procedurally sound. 

In contrast to Plaintiffs’ “motion to qualify,” there is an extensive body of law governing 

motions to disqualify which is instructive here. (Cf., e.g., Dkt. 160 at 15 (Plaintiffs’ Motion setting 

forth legal framework for motions to disqualify)). Critically, the appropriate party to raise a 

conflict of interest issue through a motion to disqualify is “the party that relevant rules of 

professional conduct were intended to protect, that is, the current or former clients of the 

attorney.” E.g., Perkins v. Cook Cnty., No. 09-cv-4930, 2010 WL 747570, at *2 (N.D. Ill. Mar. 2, 

2010). See also Thomas Betts Corp. v. Panduit Corp., No. 93-cv-4017, 1995 WL 319635, at *2 

(N.D. Ill. May 25, 1995) (same). Cf. Matter of Sandahl, 980 F.2d 1118, 1121 (7th Cir. 1992) 

(noting that a party had no standing to enforce its opponent’s right to the loyalty of counsel); 

Lavaja v. Carter, 153 Ill. App. 3d 317, 326 (1987) (“[Defendant] would have had no standing to 

challenge [attorney’s] ability to represent both [plaintiffs and third-party defendants] without 

showing that this representation adversely affected his interest.”); Evink v. Pekin Ins. Co., 122 

Ill.App.3d 246, 250 (1987) (stating same). 

The American Bar Association's Model Rules of Professional Conduct generally govern 

the professional responsibilities of lawyers appearing before this Court. See N.D. Ill. L.R. 83.50. 

As relevant here, Model Rule 1.9 prohibits a lawyer from “represent[ing] another person in the 

same or a substantially related matter in which that person’s interests are materially adverse to the 

interests of [the lawyer’s] former client.” Plaintiffs’ motion concedes that it is Walgreens’ right 

to loyal counsel that is potentially at stake. (See generally Dkt. 158 at 15–22). Further, the crux 

of Plaintiffs’ argument is that Walgreens’ rights are not being violated through Crowell’s 

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representation of Plaintiffs. (Id. at 15–16). Thus, although Plaintiffs’ motion is stylized as a 

“motion to qualify” purporting to protect Plaintiffs’ own interests – it effectively places 

Walgreens’ rights under the Model Rules at issue. The motion forces Walgreens into a position 

of having to preemptively justify why Crowell should in fact be disqualified pursuant to the Rules 

of Professional Conduct, and therefore places a “heavy burden” of proof on Walgreens that it has 

not yet sought out. E.g., PsyBio Therapeutics v. Corbin, No. 20-cv-3340, 2021 WL 122713, at 

*1–2 (N.D. Ill. Jan. 13, 2021). Plaintiffs appear to be aware that this would be the ultimate result 

of their motion. (Dkt. 158 at 15 (setting forth legal standard for disqualification and suggesting 

that Walgreens should bear its burden because they have alleged wrongdoing by Crowell)). Yet 

just as Plaintiffs would have no standing to bring a motion to disqualify their own counsel to probe 

the scope of Walgreens’ rights, see Sandahl, 980 F.2d at 1121, it cannot utilize the procedural 

tactic now before the Court to effectively do the same. 

Review of the standard courts apply to motions for disqualification further highlights that 

Plaintiffs’ preemptive motion is improper. Motions to disqualify are generally disfavored because 

disqualification “deprives a party of the representative of their choosing.” See, e.g., PsyBio, 2021 

WL 122713, at *1–2 (quoting RMB Fasteners, Ltd. v. Heads & Threads Int’l, Inc., 11-cv-2071, 

2012 WL 245124, at *2 (N.D. Ill. Jan. 25, 2012)). They are “viewed with extreme caution for they 

can be misused as techniques of harassment.” Freeman v. Chi. Musical Instrument Co., 689 F.2d 

715, 722 (7th Cir. 1982). Disqualification of an attorney is a “drastic measure which courts should 

hesitate to impose except when absolutely necessary.” Watkins v. Trans Union, LLC, 869 F.3d 

514, 519 (7th Cir. 2017) (emphasis added) (quoting Freeman, 689 F.2d at 719); Owen v. Wangerin, 

985 F.2d 312, 317 (7th Cir. 1993); Schiessle, 717 F.2d at 419–20; see also, e.g., PsyBio, 2021 WL 

122713, at *1–2; Bonds v. City of Chi., 451 F. Supp. 3d 900, 902 (N.D. Ill. 2020). Because of this, 

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parties seeking disqualification bear a heavy burden of proving facts required for disqualification 

under the Model Rules of Professional Conduct. See, e.g., Moore v. Club Exploria, LLC, No. 19-

cv-2504, 2021 WL 260227, at *8 (N.D. Ill. Jan. 26, 2021); PsyBio, 2021 WL 122713, at *1–2; 

Trading Techs. Int’l, Inc. v. BCG Partners, Inc., No. 10-cv-715, 2011 WL 1748607, at *5 (N.D. 

Ill. May 5, 2011). Even further, courts exercise discretion in deciding motions to disqualify. Ross 

v. United States, 910 F.2d 1422, 1432 (7th Cir. 1990); see also, e.g., Taylor v. Cook Cnty. Sherrif’s 

Off., No. 13-cv-1856, 2020 WL 1047053, at *1 (N.D. Ill. Mar. 4, 2020). As such, even where an 

ethical violation has occurred, disqualification is not guaranteed. See, e.g., Singer v. PrimeSource 

Health Grp., LLC, No. 17-cv-2127, 2018 WL 3036955, at *5 (N.D. Ill. June 19, 2018) (noting that 

“the court then determines whether disqualification is appropriate” when a violation is found); 

Met. Life Ins. Co. v. Guardian Life Ins. Co. of Am., No. 06-cv-5812, 2009 WL 1439717, at *5 

(N.D. Ill. May 18, 2009) (“[I]t is well-settled that disqualification does not flow automatically from 

a finding that a law firm violated a conflict of interest (citing Schiessle, 717 F.2d at 420)); SWS 

Fin. Fund A, 790 F. Supp. 1392, 1400 (N.D. Ill. 1992) (disqualification because of an ethical 

violation “is never automatic”). Plaintiffs’ motion would wrongly require Walgreens to sustain 

this burden of proof even though it has not brought a motion to disqualify – opting instead to 

vindicate its claimed rights by other means, namely claims for breach of fiduciary duties and aiding 

and abetting the same. 

In light of the foregoing, Plaintiffs’ otion is not properly before the Court. There is no case 

law to suggest that a “motion to qualify” such as Plaintiffs’ is recognized under the Federal Rules. 

Moreover, the motion would flip the legal standard governing disqualification on its head –

effectively forcing Walgreens to argue a motion to disqualify that it has not brought and may never 

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bring. Accordingly, Walgreens’ motion [163] is granted. Plaintiffs’ Motion for Qualification of 

Counsel (Dkt. 158) and the accompanying filings, (Dkt. 159–161), are hereby stricken. 

PLAINTIFFS’ AND PRIME’S MOTIONS TO DISMISS

I. Legal Standard

“To survive a motion to dismiss under 12(b)(6), a complaint must ‘state a claim to relief 

that is plausible on its face.’ ” Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Adams, 742 F.3d at 728 (quoting Ashcroft v. 

Iqbal, 566 U.S. 662, 678 (2009)). “[I]t is not enough for a complaint to avoid foreclosing possible 

bases for relief; it must actually suggest that the plaintiff has a right to relief . . . by providing 

allegations that ‘raise a right to relief above the speculative level.’ ” E.E.O.C. v. Concentra Health 

Servs., Inc., 496 F.3d 773, 777 (7th Cir. 2007) (citing Twombly, 550 U.S. at 555) (emphasis in 

original). The Court construes the complaint “in the light most favorable to the nonmoving party, 

accept[s] well-pleaded facts as true, and draw[s] all inferences in her favor.” Reynolds v. CB Sports 

Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). “[L]egal conclusions and conclusory allegations 

merely reciting the elements of the claim are not entitled to this presumption of truth.” McCauley 

v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 566 U.S. at 678).

II. Plaintiffs’ Motion to Dismiss Walgreens’ Counterclaim

Under Illinois law, an aiding and abetting claim has three elements: “(1) the party whom 

the defendant aids performed a wrongful act causing an injury, (2) the defendant is aware of his 

role when he provides the assistance, and (3) the defendant knowingly and substantially assisted 

the violation.” Fifth Third Mortg. Co. v. Kaufman, 934 F.3d 585, 588 (7th Cir. 2019) (citing 

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Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir. 2006)); see also, e.g., Thornwood, Inc. v. Jenner 

& Block, 799 N.E.2d 756, 767 (Ill. App. Ct. 2003); Overwell Harvest Ltd. v. Widerhorn, No. 17-

cv-6086, 2019 WL 398700, at *6 (N.D. Ill. Jan. 31, 2019). Here, Walgreens claims that Plaintiffs 

have aided and abetted Crowell’s breach of fiduciary duties under applicable rules of professional 

conduct. (E.g., Dkt. 149 at 194 ¶ 79, 200 ¶ 101). In particular, Crowell is alleged to have taken a 

materially adverse position to Walgreens in a matter that is substantially related to its prior 

representation of Walgreens. (Id. at 194 ¶¶ 76–77). For their part, Plaintiffs now allegedly aid 

and abet this breach by “allowing, encouraging, compensating, and facilitating Crowell’s 

representation of Plaintiffs in these actions.” (Id. at 201 ¶ 109). Plaintiffs counter that Walgreens 

failed to state an aiding and abetting claim because Walgreens has not alleged facts suggesting that 

the Plaintiffs knowingly assisted in Crowell’s purported breach. (Dkt. 192 at 5 (“Plaintiffs focus 

here on element 3 – the knowledge element – which Walgreens has failed to, and cannot, 

sufficiently plead.”)). In Plaintiffs’ view, Walgreens has only pled that Plaintiffs knew of an 

alleged breach of fiduciary duties which is insufficient to survive a motion to dismiss. (Id. at 9–

13). 

The Counterclaim alleges that Plaintiffs are “well aware” that Crowell’s activity in this 

litigation is in violation of rules of professional conduct, and that Plaintiffs are “knowingly 

supporting and furthering” this misconduct. (Dkt. 149 ¶ 3; see also id. ¶¶ 20 (stating that Plaintiffs

“undoubtedly” knew about Crowell’s conflict of interest by April 2021), 84 (“Plaintiffs certainly 

know of Crowell’s breaches.”), 108 (“Plaintiffs know that Crowell is breaching its fiduciary duties 

to Walgreens.”)). Walgreens opines that Plaintiffs learned of Crowell’s breach through at least 

one of several alternative ways – including (a) from Crowell, which had an ethical obligation to 

inform Plaintiffs of this conflict of interest, (b) from extensive, national press coverage of 

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Walgreens’ lawsuit against Crowell detailing the firm’s breaches, and (c) from Walgreens itself, 

when Walgreens alerted Plaintiffs to Crowell’s breaches. (Id. ¶¶ 83–97; see also Dkt. 204 at 8–

9). These allegations, accepted as true, are sufficient to state a claim against Plaintiffs on an aiding 

and abetting theory. See Hefferman, 467 F.3d at 602 (reversing dismissal of aiding and abetting 

claim, finding allegation in complaint that defendant’s participation in the underlying misconduct

“was knowing and intentional” sufficient; explaining that knowledge is “permit[ted] to be alleged 

generally”). The Hefferman Court further noted that the knowledge element in an aiding and 

abetting claim can be alleged generally even under the heightened Rule 9 pleading standard for 

fraud actions – which does not apply in the present case, where no fraud claims are alleged. Id., 

See also, e.g., Damian v. Courtright, No. 21-cv-1694, 2021 WL 3144447, at *6 (N.D. Ill. July 26, 

2021) (denying motion to dismiss aiding and abetting claim; “[w]hile Defendants assert that the 

complaint does not sufficiently allege the elements of knowledge and awareness, such elements 

may be alleged generally even under Rule 9(b)” (citing Hefferman, 467 F.3d at 601–02)); PLB 

Invs. LLC v. Heartland Bank & Trust Co., No. 20-cv-1023, 2021 WL 492901, at *9 (N.D. Ill. Feb. 

9, 2021) (“To state an aiding and abetting claim . . . . Plaintiffs may allege [Defendant’s] 

knowledge generally.”) (citing Hefferman, 467 F.3d at 601–02)); Santore v. Swaminathan, No. 17-

cv-5742, 2018 WL 1124414, at *5 (N.D. Ill. Mar. 1, 2018) (“To the extent [Defendant] argues that 

Plaintiffs failed to allege his intent or knowledge with specificity, even under Rule 9(b) a plaintiff 

may plead a person’s scienter generally.” (citing Hefferman, 467 F.3d at 601)); Gondeck v. A Clear 

Title & Escrow Exch., LLC, No. 11-cv-6341, 2012 WL 5200091, at *4 (N.D. Ill. Oct. 22, 2012) 

(denying motion to dismiss aiding and abetting fraud claim where complaint “allege[d] that 

[defendant] was aware [of underlying misconduct by a third party] and yet failed to take any action 

to stop [it]”). 

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Plaintiffs maintain that “[k]nowing of an accusation [of Crowell’s breach of duties] is far 

different from knowing that the accusation is correct, either legally or factually” so as to satisfy 

the actual knowledge requirement. (Dkt. 192 at 10 (emphasis added)). However, neither one of 

the cases Plaintiffs cite for this point were decided on a motion to dismiss. See BPI Energy 

Holdings, Inc. v. IEC (Montgomery), LLC, 664 F.3d 131, 135 (7th Circ. 2011) (addressing a motion 

for summary judgment); Man-Seok Choe v. Torres, 525 F.3d 733 (9th Cir. 2008) (ruling on a 

habeas corpus appeal). Moreover, this argument raises a factual issue that is unfitting for a motion 

to dismiss. Walgreens has alleged that Plaintiffs knew of Crowell’s fiduciary breach as Walgreens’ 

former counsel, and Walgreens has provided a basis for that allegation by pointing to several ways 

in which Plaintiffs plausibly may have gained such knowledge. Walgreens need not plead more 

detail with respect to Plaintiffs’ knowledge; rarely will a litigant be able to do so without the benefit 

of discovery. See, e.g., Lansing v. Carroll, 71 F. Supp. 3d 765, 772 (N.D. Ill. 2014) (“Where 

pleadings concern matters peculiarly within the knowledge of the defendants, conclusory pleading 

. . . should be liberally viewed” (citing Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005))); Trading 

Techs. Int’l, Inc. v. BCG Partners, Inc., 2011 WL 3946581, at *3 (N.D. Ill. Sept. 2, 2011) (“[T]he 

Court must be ‘realistic’ as to what [plaintiffs] could plead at [the motion to dismiss stage] . . . 

especially with respect to what another party knew.”) (citing Swanson v. Citibank, N.A., 614 F.3d 

400, 404 (7th Cir. 2010)); Fed. Deposit Ins. Corp. v. Parzygnat, No. 10-cv-7038, 2011 WL

3704731, at *8 (N.D. Ill. Aug. 23, 2011) (“Discovery is the best vehicle for exposing the veracity 

of [defendant’s] argument that she lacked knowledge.”). Cf. Wilson v. Ryker, 451 Fed. App’x 588, 

590 (7th Cir. 2011) (“[I]n federal court under Rule 8, the rules are simple: Notice is what counts. 

Not facts; not elements of ‘causes of action’; not legal theories.’ ”) (citing Hefferman, 467 F.3d at 

600); see also, e.g., Love. v. Ill. Dep’t of Corr., No. 18-cv-6084, 2020 WL 1237200, at *7 (N.D. 

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Ill. Mar. 13, 2020) (“Plaintiffs ‘need not lard their complaints with facts’ . . . . Notice pleading 

suffices, and it is enough to plead knowledge ‘generally.’ ”) (citing Burks v. Raemisch, 555 F.3d 

592, 594 (7th Cir. 2009)). At this stage in the litigation, Walgreens need only plausibly allege

Plaintiffs’ actual knowledge. Walgreens has met that burden. Accordingly, Plaintiffs’ motion 

[187] is denied. 

III. Prime’s Motion to Dismiss Walgreens’ Third-Party Complaint

Walgreens brings several counts against Prime for contribution and indemnification for 

Prime’s alleged role in “defraud[ing], misle[ading], and unfairly caus[ing] the Prime Plans’ 

supposed injuries” in the underlying Complaint. (See, e.g., Dkt. 151 ¶ 77). Prime moves to dismiss 

the TPC pursuant to Rule 12(b)(1) on ripeness grounds and Rule 12(b)(6) for failure to state a 

claim. (See generally Dkt. 191). For the following reasons, Prime’s motion is granted. 

A. Contribution Claims

Counts I–IX assert contribution claims under the laws of nine states – each of which, with 

one exception discussed below, provide that the right to contribution exists only between joint 

tortfeasors. (See Dkt. 191 at 7). For example, Count I asserts a claim for contribution under the 

Illinois Joint Tortfeasor Contribution Act (the “Illinois Contribution Act”). (Dkt. 151 at 21–26). 

The Illinois Contribution Act provides that “where [two] or more persons are subject to liability in 

tort arising out of the same injury . . . there is a right of contribution among them.” 740 ILCS 

100/2(a). The law clarifies that “[t]he right of contribution exists only in favor of a tortfeasor who 

has paid more than his pro rata share of the common liability.” Id. § 2(b) (emphasis added). See 

also Muirfield Vill-Vernon Hills, LLC v. K. Reinke, Jr. & Co., 810 N.E.2d 235, 245 (Ill. App. Ct. 

2004) (explaining that a party seeking contribution must allege that “it and the defendant in 

contribution are both subject to liability in tort to the injured party” (emphasis added)). The other 

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state laws properly invoked by Walgreens here also require litigants to allege common liability to 

prevail on contribution claims.2 In addition, Walgreens does not contest that these laws plainly 

require it to plead common liability. 

Prime moves to dismiss these claims on the basis that the TPC purports to shift all blame 

for the underlying lawsuit on to Prime. (See Dkt. 191 at 5 (“Walgreens’ allegations make clear 

that it is not seeking contribution from Prime—rather, it is attempting to evade liability entirely. . 

. . Contribution is a mechanism to split liability among joint tortfeasors, but Walgreens claims that 

the blame belongs to Prime alone.”)). In response, Walgreens maintains that it “specifically 

pleaded” that Prime “would be liable to [Walgreens] for Prime’s pro rata share of the injury jointly 

caused.” (Dkt. 202 at 5 (citing Dkt. 151 ¶¶ 76, 97, 119, 141, 163, 185, 207, 229, 251, 272)). 

However, the very allegations contained in Walgreens’ TPC cited in support of this claim plainly 

controvert Walgreens’ position. Those paragraphs repeatedly state the following: “Should the 

Walgreens Parties be held liable to Plaintiffs . . . the Walgreens Parties will be entitled to 

contribution from Prime for all liability the Walgreens Parties are found to owe the Prime Plans.” 

(See, e.g., Dkt. 151 ¶ 76 (emphasis added)). Several other allegations in the TPC would similarly 

place all liability on to Prime’s shoulders. Indeed, Walgreens pleaded that it is entitled to “full

contribution from Prime” for “any liability” Walgreens might have to the Prime Plans in the 

underlying suit. (Id. ¶ 15 (emphasis added); see also, e.g., id. ¶¶ 11 (“If . . . the Prime Plans truly 

believed . . . that they were entitled to and were receiving [U&C prices that included PSC pricing], 

2 See N.J. Stat. Ann. 2A:53A-1, 2 (Count II) (“The right of contribution exists among joint tortfeasors,” who are “two 

or more persons jointly or severally liable in tort”); N.C. Gen. Stat. Ann. § 1B-1(a) (Count III) (“[W]here two or 

more persons become jointly or severally liable in tort for the same injury . . . there is a right of contribution among 

them”); N.D. Cent. Code Ann. § 32-38-01(1) (Count IV) (“[I]f two or more persons become jointly or severally liable 

in tort for the same injury . . . there is a right of contribution”); Fla. Stat. Ann. § 768.31(2)(a) (Count V) (“[W]hen 

two or more persons become jointly or severally liable in tort . . . there is a right of contribution”); Idaho Code § 6–

803(4) (Count VI) (defining joint tortfeasors as “two [] or more persons jointly or severally liable in tort”); Wash. 

Rev. Code Ann. § 4.22.040(1) (Count VIII) (same); Or. Rev. Stat. Ann. § 31.800(1) (Count IX) (same).

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they were badly misled by Prime.”); 14 (“Prime’s misrepresentations to and deception of the Prime 

Plans regarding Walgreens’ U&C reporting obligations and practices were the proximate cause of 

any harm the Prime Plans may have incurred.” (emphasis added)); 47 (“Prime itself is wholly to 

blame for any purported misapprehension by the Prime Plans regarding Walgreens’ U&C 

obligations and practices.” (emphasis added)); 48 (“Prime is the only plausible source of any 

delusion on behalf of the Prime Plans that they were entitled to and received [U&C prices that 

included PSC pricing].” (emphasis added)); 59 (“If the Prime Plans mistakenly believed they were 

getting Walgreens’ [U&C prices that included PSC pricing], that misunderstanding . . . certainly 

did not come from Walgreens.”); 64 (“Prime is the chief intervening proximate cause of any harm 

[the Prime Plans] incurred.” (emphasis added))). These allegations simply do not rise to 

allegations of common liability as is required under the relevant statutes. As such, Counts I–VI 

and VIII–IX must be dismissed for failure to state a claim. 

Count VII invokes the Kansas contribution law, Kan. Stat. Ann. § 60–2413. The Kansas 

law only allows contribution for “[p]ersons jointly liable to another in contract” or “among 

judgment debtors.” Id. Because Walgreens has not alleged mutual contractual liability in this 

case, and because Prime and Walgreens are not judgment debtors, Prime argues that Count VII 

must be dismissed. (Dkt. 191 at 9; Dkt. 207 at 5–6). Walgreens does not seriously contest this. 

(See Dkt. 191 at 9). Because the Kansas law does not establish contribution claims for joint 

tortfeasors – or parties otherwise in Prime and Walgreens’ current position – Count VII must be 

dismissed. 

Finally, Count X pleads contribution under common law, in the most general terms. (Dkt. 

151 ¶¶ 270–91). Walgreens does not specify precisely what common law it purports to invoke –

for example, federal common law or that of the states. (See generally id.; see also Dkt. 191 at 11

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(arguing for dismissal of Count X because “no general federal common-law right to contribution 

exists”)). Walgreens clarifies in its Opposition brief that Count X “invokes the common law of 

certain states whose law may govern parts of the Walgreens Parties’ contribution claims under 

choice of law rules.” (Dkt. 202 at 11 (citing case law from Nebraska, Kansas, and Minnesota state 

courts) (emphasis in original)). Even still, Walgreens fails to explain which state common laws 

support its claim beyond alluding to the states including in its string cite. In any case, Count X 

must be dismissed because common liability is an essential element for contribution claims in 

Nebraska, Minnesota, and Kansas, and Walgreens fails to allege common liability between itself 

and Prime. Unified Sch. Dist. 467 v. Leland A. Gray Architects, LLC, 112 F. Supp. 3d 1223, 1228–

29 (D. Kan. 2015) (“Comparative implied indemnity is an equitable remedy available to a 

tortfeasor among other tortfeasors, who by settling with the plaintiff or paying a judgment, pays 

the other tortfeasors’ share of liability.”); Harsh Int’l, Inc. v. Monfort Indus., Inc., 662 N.W.2d 

574, 579 (Neb. 2003) (“A common liability is a necessary requirement for securing contribution.”); 

Nuessmeier Elec., Inc. v. Weiss Mfg. Co., 632 N.W.2d 248, 251 (Minn. Ct. App. 2001) (“The 

essential elements of a contribution claim [include] common liability of two or more actors to the 

injured party.”). Walgreens therefore fails to adequately plead contribution under common law. 

Count X is therefore dismissed. 

B. Indemnification Claims

Through Counts XI and XII, Walgreens seeks to enforce its indemnification rights under 

its contract with Prime. (Dkt. 151 ¶¶ 292–319). Courts in this Circuit “regularly say that decisions 

about indemnity should be postponed until the underlying liability has been established.” Lear 

Corp. v. Johnson Electric Holdings Ltd., 353 F.3d 580, 583 (7th Cir.2003). See also Meridian 

Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 538 (7th Cir. 2006) (“[A] dispute about an insurer’s duty 

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to indemnify generally is not ripe for decision until the insured has been called on to pay.”); 

Grinnell Mut. Reinsurance Co. v. Reinke, 43 F.3d 1152, 1154 (7th Cir. 1995) (“Illinois treats 

arguments about the duty to indemnify as unripe until the insured has been held liable.”); 

Nationwide Ins. Co. v. Zavalis, 52 F.3d 689, 693 (7th Cir.1995) (“[T]he duty to indemnify is not 

ripe for adjudication until the insured is in fact held liable in the underlying suit.”); Travelers Ins. 

Cos. v. Penda Corp., 974 F.2d 823, 833 (7th Cir.1992) (“[T]he determination of whether 

[defendant] has a duty to indemnify is not ripe until the underlying litigation is terminated.”); see 

also, e.g., Covington Specialty Ins. Co. v. U.S. Venture, Inc., No. 20-cv-6177, 2021 WL 1428474, 

at *3 (N.D. Ill. Apr. 15, 2021) (citing Lear Corp., 353 F.3d at 583) (dismissing counterclaim for 

indemnification without prejudice where defendants’ liability had not been established); 

Continental Casualty Co. v. Duckson, 826 F. Supp. 2d 1086, 1103 (N.D. Ill. 2011) (same). In this 

case, Walgreens has yet to incur any actual liability in the underlying case. Thus, the issue of 

indemnification is premature. Therefore, Prime’s motion to dismiss as it pertains to the duty to 

indemnify is granted. (See Dkt. 191 at 18–19; Dkt. 207 at 12–15). 

CONCLUSION

For the foregoing reasons, Walgreens’ Motion to Strike [163] is granted, and Plaintiff’s 

Motion and accompanying filings, (Dkts. 158–61), are hereby stricken; Plaintiffs’ Motion to 

Dismiss Walgreens’ Counterclaim [187] is denied; and Prime’s Motion to Dismiss Walgreens’ 

Third-Party Complaint [188] is granted. 

____________________________________

Virginia M. Kendall

United States District Judge

Date: February 9, 2022

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