Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 1 of 11
`
`Albert F Harris III – KS 26917
`HARRIS & ASSOCIATES LAW LLC
`232 S. Main St.
`Ottawa, KS 66067
`Telephone: (785) 203-1806
`Fax: (785) 203-1807
`al@HarrisAssocLaw.com
`
`Attorneys for Annaken, LLC
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF KANSAS
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
` No. _______________
` VERIFIED COMPLAINT
`
`Annaken, LLC
`
`
`vs.
`
`AmerisourceBergen Drug Corp.
`
`
`
`Defendants.
`
`
`
`
`
`Plaintiff Annaken, LLC, dba Ken’s Sunflower Pharmacy, (hereinafter, “Sunflower Pharmacy” or
`
`“Plaintiff”), by way of Complaint against Defendants, AmerisourceBergen Drug Corp (hereinafter,
`
`“Supplier” or “Defendant”), hereby allege as follows:
`
`PARTIES, JURISDICTION, AND VENUE
`
`1.
`
`Sunflower Pharmacy operates a retail pharmacy located at 7222 West 80th Street;
`
`Overland Park, Kansas 66204 and, at all times relevant herein, has maintained its principal place of
`
`business in Johnson County, Kansas.
`
`2.
`
`Sunflower Pharmacy is licensed to operate a retail pharmacy by the United States
`
`Department of Justice Drug Enforcement Agency and the Kansas State Board of Pharmacy.
`
`3.
`
`Sunflower Pharmacy has a pharmacist named Ken Moyer, who is also an owner of
`
`Sunflower Pharmacy, and a number of part-time relief pharmacists.
`
`
`
`1
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 2 of 11
`
`4.
`
`On information and belief, Defendant, AmerisourceBergen Drug Corp. is a Delaware
`
`Corporation duly authorized to transact and actually transacting business in the State of Kansas as a
`
`foreign company.
`
`5.
`
`On information and belief, Defendant, Supplier, has a shipping-from address of 11200
`
`North Congress Ave., Kansas City, Missouri 64153 and a primary place of business at 1 W 1ST Ave
`
`Conshohocken, PA, 19428-1800.
`
`6.
`
`On information and belief, Defendant Supplier operates under a state license number
`
`2005017289 and a DEA number of RA0326276.
`
`7.
`
`8.
`
`All acts alleged herein occurred in Johnson County, Kansas.
`
`This Court has original jurisdiction of this case pursuant to 28 U.S.C. § 1332 because the
`
`value of the claims exceeds $75,000 exclusive of interest and costs, and because this case involves citizens
`
`of different states.
`
`9.
`
`Venue is proper in this district under 28 U.S.C. § 1391(b)(3).
`
`The Agreement between Sunflower Pharmacy and Supplier
`
`BACKGROUND
`
`10.
`
`Sunflower Pharmacy has entered a number of agreements with Supplier
`
`to purchase
`
`pharmaceutical products from Suppliers.
`
`11.
`
`Purchase agreements at least for the last ten years show Supplier agreed to permit
`
`Sunflower Pharmacy to purchase numerous dosage units combined of oxycodone at various strengths
`
`measured in milligrams of the drug.
`
`12.
`
`13.
`
`Supplier has supplied similar amounts of oxycodone over the course of at least 20 years.
`
`Supplier has supplied numerous other controlled medications in similar quantities over
`
`the same time period.
`
`
`
`2
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 3 of 11
`
`14.
`
`Sunflower Pharmacy has fully complied with all details of all agreements that exist
`
`between Sunflower Pharmacy and Supplier.
`
`Supplier breaches Agreement
`
`15.
`
`On or about early 2020 Duane Stickles sent notification to Sunflower Pharmacy notifying
`
`Sunflower Pharmacy, and Ken Moyer in particular, that Sunflower Pharmacy is in danger of having
`
`shipments of all substances suspend for one year.
`
`16.
`
`In said notification, Supplier informed Sunflower Pharmacy that the reasons for
`
`suspension included at least: Sunflower Pharmacy had a percentage of total prescriptions filled that
`
`constituted controlled substances that was too high; that a particular doctor was prescribing to many
`
`controlled substances, which Sunflower Pharmacy subsequently filled; and that Sunflower Pharmacy had
`
`filled too many prescriptions containing medications that should not be taken together according to
`
`Supplier.
`
`17.
`
`18.
`
`Said notification invited Sunflower Pharmacy to respond and fix the issues.
`
`Sunflower Pharmacy, in response, explained the reasons for the percentage of controlled
`
`substances being as they were and offered to cease filling scripts from the particular doctor and scripts
`
`containing the medications Supplier indicated should not be taken together.
`
`19. Without necessitating Sunflower Pharmacy to change any filling behavior, Supplier
`
`dropped the issue and continued to fill orders as normal for nearly 2 years.
`
`20.
`
`On or about June 2022, Supplier again indicated Sunflower Pharmacy was in danger of
`
`losing medication delivers.
`
`21.
`
`22.
`
`23.
`
`The reasons were substantially the same as those noted in the previous message.
`
`The message from Supplier again invited a response from Sunflower Pharmacy.
`
`Sunflower Pharmacy again promptly responded to Supplier, offering to remedy any issues
`
`and requesting direction on what exactly to do to be in compliance with Supplier’s new requests.
`
`
`
`3
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 4 of 11
`
`24.
`
`Supplier responded on or about July 1, 2022 by terminating Sunflower Pharmacy’s supply
`
`of medications, effectively ending Sunflower Pharmacy’s ability to do business.
`
`25.
`
`Supplier terminated Sunflower Pharmacies supplies without addressing Sunflower
`
`Pharmacy’s response in any way.
`
`26.
`
`Supplier did not give Sunflower Pharmacy any opportunity to remedy or further explain
`
`what Supplier claimed was the basis for its decision to terminate distribution.
`
`27.
`
`Prescriptions for controlled substances filled by Sunflower Pharmacy are processed
`
`through Kansas’s Electronic Prescribing of Controlled Substances (EPCS) programs, in accordance with
`
`Kansas bill HB2119, signed by the Kansas Governor.
`
`28.
`
`The EPCS provides safeguards, such as two-factor authentication for prescribers, insuring
`
`only valid prescriptions by licensed doctors are received by Sunflower Pharmacy. The system is much
`
`more secure than older, paper-based prescriptions because they cannot be stolen, tampered with, or lost
`
`and the prescriber’s DEA number is no longer out in the community.
`
`29.
`
`Sunflower Pharmacy also uses K-tracs, the Kansas state database that collects patient-
`
`specific prescription information, at the time of dispensing at the pharmacy. Sunflower Pharmacy uses
`
`the system before controlled substances are filled. The reliance on the system is designed to reduce
`
`diversion of controlled substances.
`
`30.
`
`At no time before Supplier decided to stop distributions of medications to Sunflower
`
`Pharmacy did Supplier alleged that Sunflower Pharmacy constitutes “an unreasonable risk of diversion.”
`
`31.
`
`At no time before Supplier decided to stop distributions of medications to Sunflower
`
`Pharmacy did Supplier allege that there were any licensing problems for any pharmacists working at
`
`Sunflower Pharmacy.
`
`32.
`
`Supplier has systematically refused to resume shipments of medications before a one-
`
`year period has elapsed without expanding on any reason for the termination.
`
`
`
`4
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 5 of 11
`
`33.
`
`Despite the request made by Sunflower Pharmacy, Supplier has refused to reinstate
`
`purchasing agreements and renew distribution of all controlled and non-controlled substances to
`
`Sunflower Pharmacy.
`
`34.
`
`Due to the highly regulated nature of the pharmacy business, Sunflower Pharmacy cannot
`
`simply sign a distribution agreement with a new wholesaler and resume business immediately, but rather,
`
`must undergo lengthy review and scrutiny from any potential new wholesale distributor.
`
`35.
`
`The review process from a new wholesale distributor can take a long time, during which
`
`Supplier would have no medications and would face immediate and irreparable harm from lost sales and
`
`lost customers.
`
`36.
`
`There has never been any finding by any governmental agency or body that Sunflower
`
`Pharmacy was or is an unreasonable risk of being a company that diverts controlled substances.
`
`COUNT ONE
`
`(Declaratory Judgment)
`
`37.
`
`Plaintiff hereby repeats and includes by reference all allegations set forth above as though
`
`fully set forth herein.
`
`38.
`
`Pursuant to 28 U.S.C § 2201, after reasonable notice and hearing, a person interested in
`
`a contract, or whose rights, status, or legal relations are affected by a contract, may have the Court
`
`determine, among other things, any question of construction or validity under the contract and obtain a
`
`declaration of rights, status or other legal relations thereunder.
`
`39.
`
`Sunflower Pharmacy and Supplier entered into various agreements for the purchase of
`
`pharmaceutical products.
`
`40.
`
`On or about July 22, 2022, Defendants suspended shipments to Sunflower Pharmacy and
`
`ultimately terminated all agreements.
`
`
`
`5
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 6 of 11
`
`41.
`
`The current termination makes it clear this subject matter is ripe as there is a substantial
`
`controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant
`
`the issuance of a declaratory judgment, and that declaratory action will serve a useful purpose in clarifying
`
`the legal relations at issue.
`
`42.
`
`Supplier was to supply Sunflower Pharmacy, pursuant to agreements, with various
`
`products so long as Sunflower Pharmacy remained a licensed pharmacy, ordered pharmaceuticals within
`
`allotted amounts, and paid for the same.
`
`43.
`
`Sunflower Pharmacy has remained a licensed pharmacy, has not exceed allotted amounts
`
`of pharmaceuticals dictated by Supplier, and all pharmaceuticals sold to Sunflower Pharmacy have been
`
`paid for.
`
`44.
`
`As a direct and proximate result of all the above factual allegations, Sunflower Pharmacy
`
`is entitled to a declaratory judgment in its favor stating, at a minimum, the following:
`
`a. the agreements and all of their provisions are subject to the implied covenant of good
`
`faith and fair dealing, which duty requires, among other things, that performance of
`
`contractual duties left to one’s discretion will be undertaken in an honest, good-faith
`
`manner and that such discretion will be properly supported and well-reasoned, and not
`
`made arbitrarily, on a whim, out of ill-will, in a manner designed to take opportunistic
`
`advantage of the other party, or in a manner that evades the spirit of the bargain;
`
`b. any termination of agreed on supply of pharmaceutical products must be analyzed
`
`carefully and any discretionary cancelation of supply must not be arbitrary or capricious:
`
`rather, any decision to suspend or terminate distribution must be based on supportable
`
`facts and investigation that demonstrate, after conferring in good faith with Sunflower
`
`Pharmacy, a causal relationship between the facts being relied upon and conclusion that
`
`Sunflower Pharmacy may pose an unreasonable risk of diversion;
`
`
`
`6
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 7 of 11
`
`c.
`
`in this situation, Supplier’s decision to terminate distributions, based on pre-termination
`
`allegations that Sunflower Pharmacy has filled to many prescriptions for controlled
`
`substances violated the implied covenant of good faith and fair dealing as the facts cited
`
`by Supplier do not in and of themselves, support the conclusion that Sunflower Pharmacy
`
`may pose an unreasonable risk of diversion and thus Sunflower Pharmacy has a right
`
`under agreements to, among other relief, have distribution resume;
`
`d. the facts of this case do not provide a sufficient cause to conclude that Sunflower
`
`Pharmacy may pose an unreasonable risk of diverting controlled substances; and
`
`e. alternatively, the scope of the terminated distributions to Sunflower Pharmacy, which
`
`scope includes all controlled substances and many non-controlled substances, is overly
`
`broad and inconsistent with the allegation from Supplier that Sunflower Pharmacy posed
`
`an unreasonable risk of distributing various controlled substances and the termination
`
`related thereto.
`
`45.
`
`As a direct and proximate result of the aforementioned, Sunflower Pharmacy is entitled
`
`to its attorneys’ fees and costs pursuant to A.R.S. § 12-341 and A.R.S § 12-3341.01.
`
`WHEREFORE, Plaintiff, Sunflower Pharmacy, hereby demands judgment in its favor and against
`
`Defendant, Supplier, declaring as follows:
`
`(a) The statements set forth in ¶ 44;
`
`(b) attorneys' fees and costs pursuant to A.R.S. § 12-341 and A.R.S § 12-3341.01; and
`
`(c) such further relief as the Court may deem equitable and just.
`
`COUNT TWO
`
`(Specific Performance / Injunctive Relief)
`
`46.
`
`Plaintiff hereby repeats and reiterates the allegations set forth above as though fully set
`
`forth herein.
`
`
`
`7
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 8 of 11
`
`47.
`
`Supplier and Sunflower Pharmacy entered into various agreements for the purchase of
`
`pharmaceutical products.
`
`48.
`
`Pursuant to the terms of those agreements, Supplier was required to supply Sunflower
`
`Pharmacy with pharmaceutical products so long as Sunflower Pharmacy maintained its license and paid
`
`for its products.
`
`49.
`
`50.
`
`The terms of the agreements are certain and fair.
`
`Sunflower Pharmacy has not acted inequitably and has fully performed its obligations as
`
`required by the agreements.
`
`51.
`
`Requiring Supplier to perform under the terms of the agreements will not inflict a
`
`hardship on Supplier.
`
`52.
`
`Specific performance may be decreed where the goods are unique and/or the contract
`
`involves a particular or peculiarly available source and pharmaceutical products fall within that category.
`
`A.R.S. § 47-2716(A).
`
`53.
`
`As a direct and proximate result of the aforementioned, Sunflower Pharmacy will suffer
`
`irreparable harm for which it has no adequate remedy at law should Supplier be permitted to terminate
`
`the agreements.
`
`54.
`
`As a direct and proximate result of the aforementioned, Sunflower Pharmacy is entitled
`
`to specific performance/injunctive relief requiring Supplier to reinstate the agreements and to resume
`
`distribution of all the controlled and non-controlled substances Supplier has been withholding from
`
`Sunflower Pharmacy.
`
`55.
`
`As a direct and proximate result of the aforementioned, Sunflower Pharmacy is entitled
`
`to its attorneys’ fees and costs pursuant to A.R.S. § 12-341 and A.R.S. § 12-341.01.
`
`WHEREFORE, Plaintiff Sunflower Pharmacy, hereby demands judgment in its favor and against
`
`Defendant Supplier for:
`
`
`
`8
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 9 of 11
`
`(a) Specific performance/injunctive relief requiring Supplier to reinstate the agreements, to
`
`resume immediate distribution as required by the agreements, and to fully perform under the
`
`contract;
`
`(b) attorneys' fees and costs pursuant to A.R.S. § 12-341 and A.R.S. § 12-341.01; and
`
`(c) such further relief as the Court may deem equitable and just.
`
`COUNT THREE
`
`(Breach of Contract)
`
`56.
`
`Plaintiff hereby repeats and reiterates the allegations set forth above as though fully set
`
`forth herein.
`
`57.
`
`Under agreements between Sunflower Pharmacy and Supplier, Supplier was required to
`
`supply Sunflower Pharmacy with pharmaceutical products.
`
`58.
`
`59.
`
`Sunflower Pharmacy fully complied with its obligations under the agreements.
`
`Supplier terminated distributions of controlled substances and various non-controlled
`
`substances to Sunflower Pharmacy in violation of terms of the agreements.
`
`60.
`
`Supplier’s termination of distributions to Sunflower Pharmacy was not in accordance with
`
`the express or implied terms of the agreements.
`
`61.
`
`As a direct and proximate result of the aforementioned, Supplier has materially breached
`
`its obligations pursuant to the agreements to the damage of Sunflower Pharmacy.
`
`62.
`
`As a direct and proximate result of the aforementioned, Supplier is in breach of contract
`
`and liable to Sunflower Pharmacy for direct and consequential damages, including lost profits.
`
`63.
`
`As a direct and proximate result of the aforementioned, Sunflower Pharmacy is entitled
`
`to attorney's fees and costs pursuant to A.R.S. § 12-341 and A.R.S. § 12-341.01.
`
`WHEREFORE, Plaintiff Sunflower Pharmacy hereby demands judgment in its favor and against
`
`Defendant Supplier for:
`
`
`
`9
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 10 of 11
`
`(a) breach of contract;
`
`(b) compensatory, consequential, and incidental damages in an amount to be proven at trial;
`
`(c) attorneys’ fees and costs pursuant to A.R.S. § 12-341 and A.R.S. § 12-341.01; and
`
`(d) such further relief as the Court may deem equitable and just.
`
`COUNT FOUR
`
`(Tortious Interference with Business Contracts and/or Business Expectancies)
`
`64.
`
`Plaintiff hereby repeats and reiterates the allegations set forth above as though fully set
`
`forth herein.
`
`65.
`
`Supplier has at all times relevant herein been knowledgeable of the business relationship
`
`and continued business expectancy between Sunflower Pharmacy and various clients of Sunflower
`
`Pharmacy that purchase pharmaceutical products from Sunflower Pharmacy.
`
`66.
`
`Supplier has at all times relevant herein been knowledgeable of the business relationship
`
`and continued business expectancy between Sunflower Pharmacy and various physicians writing legal
`
`scripts for prescriptions that refer their patients to Sunflower Pharmacy.
`
`67.
`
`Upon information and belief, Supplier has taken direct actions to cause the dissolution of
`
`those business expectancies and relationships, at least by removing Sunflower Pharmacy’s ability to fulfill
`
`needs of the clients.
`
`68.
`
`As a direct and proximate result of the aforementioned conduct, Sunflower Pharmacy has
`
`been damaged for which Supplier is liable.
`
`69.
`
`The aforementioned conduct by Supplier in intentionally interfering with Sunflower
`
`Pharmacy’s business contracts and/or business expectancies with various customers and physicians by
`
`improper motive and means.
`
`
`
`10
`
`

`

`Case 2:22-cv-02325-DDC-TJJ Document 1 Filed 08/17/22 Page 11 of 11
`
`70.
`
`During all times relevant herein, Supplier intentionally interfered with Sunflower
`
`Pharmacy’s contractual relations and/or continued business expectancies with Sunflower Pharmacy’s
`
`clients and various physicians without a legitimate reason and with ill-will toward Sunflower Pharmacy.
`
`71.
`
`As a direct and proximate result of the aforementioned, Supplier has damaged Sunflower
`
`Pharmacy and is liable for the same.
`
`72.
`
`The aforementioned conduct of Supplier was wrongful and said conduct was engaged in
`
`a wanton, reckless, and spiteful manner with the ill will and/or reckless indifference for the interests of
`
`Sunflower Pharmacy, thereby subjecting Supplier to punitive or exemplary damages.
`
`WHEREFORE, Plaintiff Sunflower Pharmacy hereby demands judgment in its favor and against
`
`Defendant Supplier for:
`
`(a) tortious interference with contractual relations and business expectancy;
`
`(b) compensatory, consequential, and incidental damages in an amount to be proven at trial;
`
`(c) punitive or exemplary damages in an amount to be determined at trial; and
`
`(d) such further relief as the Court may deem equitable and just.
`
`
`
`Dated: August 13, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`/s/ Albert F Harris III
`Albert F Harris III, Bar No. 26917
`Harris & Associates Law LLC
`232 S. Main St.
`Ottawa, KS 66067
`(785) 203-1806 (main)
`(785) 203-1807 (fax)
`al@HarrisAssocLaw.com
`Attorney for Plaintiff Ken’s Sunflower Pharmacy
`
`
`
`
`
`
`
`
`
`
`
`
`
`11
`
`