Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 1 of 15
` 2021 Feb-23 PM 12:44
`U.S. DISTRICT COURT
`N.D. OF ALABAMA
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`FILED
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`EXHIBIT A
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 2 of 15
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ALABAMA
`SOUTHERN DIVISION
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`
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`ROCHE DIAGNOSTICS CORPORATION and
`ROCHE DIABETES CARE, INC.,
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`Plaintiffs,
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`v.
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`PRIORITY HEALTHCARE CORPORATION
`D/B/A PRIORITY CARE, ET AL.;
`
`
`Defendants.
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`Case No. 2:18-cv-01479-KOB-HJN
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`CONSENT JUDGMENT AND
`PERMANENT INJUNCTION
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`On consent of Plaintiffs Roche Diagnostics Corporation and Roche Diabetes
`Care, Inc. (collectively, “Roche”), and Defendants Phillip Minga and Konie Minga (the
`“Mingas”); Wesley Minga, Kristen Knotts, Daniel Baker, and Heather Baker (the “Minga
`Children”); Priority Healthcare Corporation (“PHC” and, together with the entities listed in
`Footnote 1,1 the “Corporate Defendants”); and Capital Asset Management, LLC, KJM Holdings,
`LLC, and Minga Investments, LLC (such entities collectively, the “Asset-Holder Defendants,”
`and, together with the Mingas, the Minga Children, and the Corporate Defendants, the
`“Defendants”), it is hereby ORDERED, ADJUDGED AND DECREED:
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`WHEREAS, on September 11, 2018, Roche filed the Complaint in this action,
`alleging that Defendants fraudulently submitted claims for rebates to be paid directly or
`indirectly by Roche for, and otherwise used in commerce in the United States, Accu-Chek®
`blood glucose test strips, all of which claims, Roche has alleged, have given rise to significant
`damages;
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`WHEREAS, on November 5, 2019, the Court found that four bank accounts—two
`SunTrust accounts in the name of KJM Holdings, LLC, a TD Ameritrade account in the name of
`Capital Asset Management, LLC, and an E*Trade Securities account in the name of Minga
`Investments, LLC—contained the proceeds of Defendants’ fraud against Roche and ordered the
`contents of those accounts to be deposited with the Clerk of Court, and the contents of the
`accounts (the “Fund”) are currently held in constructive trust for Roche in an interest-bearing
`account in the Registry Fund of the Treasury;
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`WHEREAS, the initial deposited amount of the Court Funds was $43,331,950.55;
`
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`1 The remaining Corporate Defendants are: Priority Care Pharmacy Solutions, LLC; Amory Discount
`Pharmacy, LLC; Priority Care Pharmacy 2, LLC; Vickers Priority Care Pharmacy, LLC; Main Street
`Drugs, LLC; Priority Care Professional Staffing LLC; Medpoint, Inc.; Medpoint, LLC; Medpoint
`Advantage, LLC; Medpoint Pharmacy Benefit Managers, LLC d/b/a Medpoint Pharmacy; Professional
`Healthcare Staffing, LLC; Vincent Priority Care Pharmacy, LLC d/b/a The Medicine Chest; and Burns
`Discount Drug Store LLC.
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 3 of 15
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`WHEREAS, on May 8, 2020, the Court entered default judgment against the
`Mingas, PHC, Medpoint, LLC, and Medpoint Advantage, LLC (the “Defaulted Defendants”)
`with respect to all claims asserted in the Complaint;
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`WHEREAS, on May 26, 2020, Roche submitted evidence of its damages and
`sought an award of damages against the Mingas, PHC, Medpoint, LLC, and Medpoint
`Advantage, LLC in the amount of $166,435,403.58 (the “Full Claim Amount”);
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`WHEREAS, the United States has informed the Parties that it may seek civil
`and/or criminal forfeiture from one or more Defendants and may seek to recover some or all of
`the amount of such forfeiture from the Fund;
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`WHEREAS, the State of Mississippi has informed the Parties that it may pursue
`monetary claims from one or more of the Defendants and may seek to recover from the Fund;
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`WHEREAS, Roche has entered an agreement with the United States and the State
`of Mississippi with respect to any competing claims to the Fund;
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`NOW THEREFORE, in consideration of the promises, releases, representations,
`and warranties set forth in the Settlement Agreement dated February ___, 2021 between Roche
`and the Defendants (the “Settlement Agreement”), the sufficiency of which is acknowledged by
`all parties to this Consent Judgment, Roche and Defendants agree to be bound as follows:
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`1.
`Defendants, along with their principals, agents, members, servants,
`employees, directors, officers, parents, successors, heirs, assigns, executors, representatives, and
`subsidiaries, and all other persons in active concert and participation with them, are permanently
`enjoined from adjudicating, purchasing, selling, distributing, or dispensing Roche’s Accu-Chek
`test strips, except that Defendants shall be permitted to engage in the foregoing activities as
`employees of publicly traded companies.
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`2.
`Defendants may not invest in, control, own, or participate in any business
`that violates any term of this Consent Judgment, except that Defendants shall be permitted to
`engage in the foregoing activities as employees of or passive investors in publicly traded
`companies.
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`3.
`If Defendants are found by the Court to have violated the prohibitions of
`this Consent Judgment or to have failed to maintain complete records of their violations, Roche
`is entitled at its election to liquidated damages of $1,000 per 50-count box of Accu-Chek® blood
`glucose test strips (or equivalent per-strip value for 25-count, 100-count, or any other boxes) that
`Defendants sell or which are sold on their behalf by their agents, servants, employees,
`subsidiaries, and all other persons in active concert and participation with them who aid and abet
`Defendants in violating this Consent Judgment; or to Roche’s actual, statutory, and punitive
`damages. In any action, regardless of which measure of damages Roche selects, Roche shall be
`entitled to recover all costs and expenses incurred or reasonably expected to be incurred in
`connection with enforcement of its rights, including attorneys’ fees and investigator fees for
`finding and demonstrating that Defendants (or those acting in concert and participation with
`Defendants) have violated this Consent Judgment and otherwise incurred in connection with
`obtaining, enforcing, and collecting an award of damages. All liability will be joint and several
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`among Defendants.
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`4.
`In addition to other remedies, including damages, for contempt of this
`Consent Judgment, in the event of a breach or violation by a Defendant or any other person in
`active concert and participation with a Defendant who aid and abet him or her in violating this
`Consent Judgment, Roche is entitled to a preliminary and permanent injunction against the
`breaching conduct upon a showing of a possibility of success of establishing that such a breach
`occurred.
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`5.
`Roche and Defendants agree that jurisdiction and venue for an action for
`contempt of this Consent Judgment exists in the United States District Court for the Northern
`District of Alabama. In such an action, Defendants shall waive any and all defenses based upon
`personal jurisdiction, subject matter jurisdiction, and venue.
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`6.
`The Clerk of Court of the Northern District of Alabama is hereby
`ORDERED to draw a check payable to the order of Patterson Belknap Webb & Tyler LLP in the
`amount of full contents of the Fund ($43,331,950.55 plus accrued interest), which check shall be
`made available to be picked up by David Canupp, Esq., counsel for Roche, within one business
`day of the entry of this Consent Judgment, and deposited in an escrow account (the “Escrow
`Account”) held or controlled by Roche’s counsel.
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`(a)
`Thirty-five million two hundred thirty-one thousand, nine hundred
`fifty dollars and fifty-five cents ($35,231,950.55) (the “Roche Portion”), plus any additional
`amount not held pursuant to paragraphs 6(b) or 6(c) (“Accrued Interest”), may be released from
`the Escrow Account to Roche immediately.
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`(b)
`Seven million one hundred thousand dollars ($7,100,000) (the
`“United States Portion”) will be held in the Escrow Account pending resolution of a potential
`forfeiture claim by the United States. If the United States brings a criminal or civil forfeiture
`claim against any Defendant, or property traceable to their unlawful conduct, on or before
`February 1, 2023 and obtains a forfeiture judgment, the United States would receive either to (i)
`$7,100,000 if the forfeiture judgment is equal to or greater than $7,100,000; or (ii) the full
`amount of any forfeiture judgment less than $7,100,000.
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`(c)
`One million dollars ($1,000,000) (the “Mississippi Portion”) will
`be held in the Escrow Account pending resolution of a potential claim by the State of
`Mississippi. If the State of Mississippi files brings a claim for a criminal fine or civil forfeiture
`against any Defendant on or before February 1, 2023 and obtains a judgment, the State of
`Mississippi would be entitled either to (i) $1,000,000 if the judgment is equal to or greater than
`$1,000,000, or (ii) to the full amount of any judgment less than $1,000,000.
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`(d)
`Any amount of the United States Portion that is not transferred to
`the United States pursuant to paragraph 6(b), and any amount of the Mississippi Portion that is
`not transferred to the State of Mississippi pursuant to paragraph 6(c), shall be transferred to
`Roche, in accordance with the agreement between Roche, the United States, and the State of
`Mississippi.
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`7.
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`Roche shall be entitled to a judgment for the Full Claim Amount
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 5 of 15
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`($166,435,403.58) against each of the Asset-Holder Defendants, the Corporate Defendants, and
`any individual Defendant who causes, participates in, or would benefit from the events described
`below, jointly and severally, if any of the following occurs:
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`(a)
`Any Defendant makes any claim to any portion of the Fund, the
`Roche Portion, the United States Portion, the Mississippi Portion, or any proceeds of any of the
`foregoing.
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`(b)
`Any Defendant directs, supports, encourages, facilitates, or
`otherwise consents to the filing of a claim by any non-party, other than the United States
`Government through a claim of forfeiture or the State of Mississippi, to any portion of the Court
`Funds, the Roche Portion, the United States Portion, the Mississippi Portion, or any proceeds of
`any of the foregoing. This includes, but is not limited to, any agreement between any Defendant
`and any attorney(s) for any non-party, or payment by any Defendant to any attorney(s) for any
`non-party, related to a claim to the Fund, the Roche Portion, the United States Portion, the
`Mississippi Portion, or any proceeds of any of the foregoing.
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`(c)
`The Minga 2013 Irrevocable Trust (the “Trust”); any beneficiary
`of the Trust; any other trust to which Phillip Minga, Konie Minga, Wesley Minga, Kristen
`Knotts, Daniel Baker, and/or Heather Baker, or any of their employees, children, descendants
`(born or unborn), or other family members is a beneficiary, grantor, and/or trustee; or any
`beneficiary of any such trust, makes a claim to the Fund, the Roche Portion, the United States
`Portion, the Mississippi Portion, or any proceeds of any of the foregoing.
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`(d)
`Any one or more of the Asset-Holding Defendants, the Corporate
`Defendants, Phillip Minga, and/or Konie Minga, within two years after the Effective Date, files
`or consents to the filing of a petition or proceeding under any applicable bankruptcy, insolvency
`or other similar law now or hereafter in effect, or becomes the subject of such a petition or
`proceeding on an involuntary basis, or consents to the appointment of or taking possession by a
`receiver, liquidator, assignee, trustee, custodian (or other similar official) of any one or more
`Defendants, or for any substantial part of their property, or makes a general assignment for the
`benefit of creditors, or fails to make commercially reasonable efforts to pay substantially all their
`debts as they become due, excluding debts to attorneys or to the United States or the State of
`Mississippi, or takes any corporate action in furtherance of any of the foregoing.
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`8.
`This Consent Judgment is entered pursuant to Rule 58 of the Federal Rules
`of Civil Procedure, and this Action is hereby terminated, with prejudice, only as to Defendants,
`without costs or attorneys’ fees, subject to the conditions and limitations set forth in the
`Settlement Agreement between the parties, save that this Court shall retain jurisdiction over this
`Action, including, without limitation, over implementation of or disputes arising out of this
`Consent Judgment with regard to Defendants or their principals, agents, members, servants,
`employees, directors, officers, parents, successors, heirs, assigns, executors, representatives, and
`subsidiaries
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`9.
`Signatures to this Consent Judgment transmitted electronically or by
`facsimile shall be deemed original.
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 6 of 15
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`Dated: February __, 2020
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`CONSENTED AND AGREED TO BY:
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`Phillip Minga
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`Konie Minga
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`Wesley Minga
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`Kristen Knotts
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`Daniel Baker
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`Heather Baker
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`Priority Healthcare Corporation
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`By:
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`Priority Care Pharmacy Solutions,
`LLC
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`By:
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`Amory Discount Pharmacy, LLC
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`By:
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` Priority Care Pharmacy 2, LLC
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`By:
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`Vickers Priority Care Pharmacy,
`LLC
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`By:
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`Main Street Drugs, LLC
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`By:
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`Priority Care Professional Staffing
`LLC
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`By:
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`Medpoint, Inc.
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`By:
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`Medpoint, LLC
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`By:
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`Medpoint Advantage, LLC
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`By:
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`Medpoint Pharmacy Benefit
`Managers, LLC d/b/a Medpoint
`Pharmacy
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`By:
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`Professional Healthcare Staffing,
`LLC
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`By:
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`Vincent Priority Care Pharmacy,
`LLC d/b/a The Medicine Chest
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`By:
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`Burns Discount Drug Store LLC
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`By:
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`Capital Asset Management, LLC
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`By:
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`Minga Investments, LLC
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`By:
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`KJM Holdings, LLC
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`By:
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`PATTERSON BELKNAP WEBB & TYLER LLP
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`By: Geoffrey Potter
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`gpotter@pbwt.com
`1133 Avenue of the Americas
`New York, New York 10036
`(212) 336-2000
`Attorneys for Roche Diagnostics Corporation
`and Roche Diabetes Care, Inc.
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 10 of 15
`Case 2:18-cv-01479—KOB-HNJ Document 537-1 Filed 02/23/21 Page 10 of 15
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`Dated: February _, 2020
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`CONSENTED AND AGREED TO BY:
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`Wesley Minga
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`Kristen Knotts
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`mum;
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`Daniel Baker
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`Heather Baker
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`Priority Healthcare Corporation
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`By:
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`Priority Care Phamiacy Solutions,
`I
`LLC
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`By:
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`Am
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`Discount Pharmacy, LLC
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 11 of 15
`Case 2:18-cv-01479—KOB-HNJ Document 537-1 Filed 02/23/21 Page 11 of 15
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`Priority Care Pharmacy 2, LLC
`“Ow-5
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`By:
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`Vickers Priority Care Phammacy,
`LLC
`a
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`Main Street Drugs, LLC
`I
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`By:
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`Priority Care Professional Staffing
`LLC
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`WE:
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`By:
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`Medpoint, Inc.
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`\LQ/‘Né
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`By:
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`Medpoint, LLC
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`By:
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`Medpoint Advantage, LLC
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`By:
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`Medpoint Pharmacy Benefit
`Managers, LLC d/b/a Medpoint
`Pharmacy
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`By:
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`Professional Healthcare Staffing,
`LLC
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`Case 2:18-cv-01479—KOB-HNJ Document 537-1 Filed 02/23/21 Page 12 of 15
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`I
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`@—y.
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`Vincent Priority Care Pharmacy,
`LLC d/b/a The Medicine Chest
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`By:
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`Bums Discount Drug Store LLC
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`By:
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`Capital Asset Management, LLC
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`PATTERSON BELKNAP WEBB & TYLER LLP
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`Geoffi'ey Potter
`gpotter@pbwt.com
`l 133 Avenue of the Americas
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`New York, New York 10036
`(212) 336-2000
`Attorneys for Roche Diagnostics Corporation
`and Roche Diabetes Care, inc.
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 13 of 15
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`Dated: February __, 2020
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`CONSENTED AND AGREED TO BY:
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`Phillip Minga
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`Konie Minga
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`Wesley Minga
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`Kristen Knotts
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`Daniel Baker
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`Heather Baker
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`Priority Healthcare Corporation
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`By:
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`Priority Care Pharmacy Solutions,
`LLC
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`By:
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`Amory Discount Pharmacy, LLC
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`By:
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 14 of 15
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`Case 2:18-cv-01479-KOB-HNJ Document 537-1 Filed 02/23/21 Page 15 of 15
`Case 2:18-cv-01479—KOB-HNJ Document 537-1 Filed 02/23/21 Page 15 of 15
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`SO ORDERED:
`SO ORDERED:
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`________________________________
`UNITED STATES DISTRICT JUDGE
`UNITED STATES DISTRICT JUDGE
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`9
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