Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF OKLAHOMA
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`HARMACY PROVIDERS OF
`OKLAHOMA, INC., an Oklahoma Corporation
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`CIV-22-247-JD
`) Case No. ________________
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`Plaintiff,
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`v.
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`MEDI BROTHERS, LLC dba
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`BEST CARE PHARMACY
`a Texas Limited Liability Company and
`HENRY NGUYEN, an individual.
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`Defendants.
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`COMPLAINT
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`Pharmacy Providers of Oklahoma, Inc. (“PPOk”) for its causes of action against
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`Medi Brothers, LLC dba Best Care Pharmacy (“Best Care”), and Henry Nguyen alleges
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`and states as follows.
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`PPOk acts as an intermediary between Best Care and Caremark pursuant to an
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`Agreement between Best Care and PPOk. Part of the services PPOk provided included
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`receiving and distributing payments from payors, such as Caremark, to Best Care and other
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`pharmacies. Such payments are called “Central Payments.” In exchange, Best Care agreed
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`that if a payor ever recouped or withheld money from any Central Payments because of
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`Best Care, then Best Care would immediately reimburse PPOk for such recoupment or
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`withholding. Best Care has refused to reimburse PPOk for over $600,000 that Caremark
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`recouped from Central Payments and thus has breached its agreement with PPOk.
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF OKLAHOMA
`
` P
`
`
`
`HARMACY PROVIDERS OF
`OKLAHOMA, INC., an Oklahoma Corporation
`
`)
`)
`)
`)
`)
`CIV-22-247-JD
`) Case No. ________________
`)
`)
`)
`)
`)
`)
`)
`
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`
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`
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`
`
`
`
`Plaintiff,
`
`v.
`
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`
`
`
`
`
`
`
`
`
`
`
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`
`
`MEDI BROTHERS, LLC dba
`
`BEST CARE PHARMACY
`a Texas Limited Liability Company and
`HENRY NGUYEN, an individual.
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`COMPLAINT
`
`Pharmacy Providers of Oklahoma, Inc. (“PPOk”) for its causes of action against
`
`Medi Brothers, LLC dba Best Care Pharmacy (“Best Care”), and Henry Nguyen alleges
`
`and states as follows.
`
`PPOk acts as an intermediary between Best Care and Caremark pursuant to an
`
`Agreement between Best Care and PPOk. Part of the services PPOk provided included
`
`receiving and distributing payments from payors, such as Caremark, to Best Care and other
`
`pharmacies. Such payments are called “Central Payments.” In exchange, Best Care agreed
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`that if a payor ever recouped or withheld money from any Central Payments because of
`
`Best Care, then Best Care would immediately reimburse PPOk for such recoupment or
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`withholding. Best Care has refused to reimburse PPOk for over $600,000 that Caremark
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`recouped from Central Payments and thus has breached its agreement with PPOk.
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 2 of 10
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`PARTIES, JURISDICTION AND VENUE
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`1.
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`PPOk is a corporation organized under the laws of the State of Oklahoma,
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`with its principal place of business in Edmond, Oklahoma.
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`2.
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`Best Care is a limited liability company organized under the laws of the
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`State of Texas, with its principal place of business in Houston, Texas and all of its members
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`are residents of Texas.
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`3.
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`4.
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`Henry Nguyen is an individual who is a resident of Texas.
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`The matter in controversy exceeds, exclusive of interest and costs, the sum
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`of $75,000.00.
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`5.
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`As there is complete diversity of citizenship between PPOk and the
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`Defendants, and the requisite amount in controversy, this Court has subject matter
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`jurisdiction pursuant to 28 U.S.C. § 1332.
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`6.
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`A substantial part of the events and omissions giving rise to the claims
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`herein occurred in Oklahoma County. Additionally, PPOk and Best Care agreed in the
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`Pharmacy Services Agreement at issue in this litigation that the venue of any legal action
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`arising from this Agreement shall be in Oklahoma County, Oklahoma and agreed that
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`PPOk and Best Care waived any right of venue that either may otherwise have. Therefore,
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`venue is proper in this court under 28 U.S.C. § 1391.
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`
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`BACKGROUND AND GENERAL ALLEGATIONS
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`7.
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`At all times relevant to this action, PPOk administered a network of
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`independent pharmacies.
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`8.
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`Best Care is a pharmacy which provides pharmacy services in Texas.
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`2
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 3 of 10
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`9.
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`Upon information and belief, Henry Nguyen is the sole member of Best
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`Care.
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`10.
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`Effective June 1, 2019, PPOk and Best Care entered into a Pharmacy
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`Services Agreement, including all Addendum to that agreement (the “Network
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`Agreement”) whereby Best Care agreed to comply with PPOk’s network participation
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`standards and requirements for being a member of the network administered by PPOk. A
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`true and correct copy of the Network Agreement is appended as Exhibit A.
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`11.
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`Under the Network Agreement and payor agreements, PPOk receives a
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`weekly lump sum payment from payors that includes all amounts owed by the payors to
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`all providers participating in PPOk’s network (such payments hereinafter “Central
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`Payments”).
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`12.
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`Caremark is a Pharmacy Benefit Manager and is one of the payors that made
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`payments to PPOk via Central Payments for amounts due to providers participating in
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`PPOk’s network, including Best Care.
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`13.
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`Section 2.1 of the Addendum A to the Network Agreement provides that if
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`a payor, such as Caremark, withholds a payment due to Best Care, advises PPOk of its
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`intent to withhold or recoup payments previously made through the Central Pay Process,
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`or PPOk determines, at its sole discretion, that such withholding or recoupment may occur,
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`PPOk may (a) withhold funds owed to Best Care, (b) debit Best Care’s bank account for
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`the negative amount due from Best Care, or (c) invoice Best Care for the amount owed,
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`and the sum on such invoice will be due and payable within five business days following
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`the date of PPOk’s invoice.
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`3
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 4 of 10
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`14.
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`Section 3.2 of Addendum A of the Network Agreement provides that if
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`Caremark or another payor withholds, or there is apparent risk of Caremark withholding
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`all or any portion of a Central Payment amount due to Best Care, resulting in a negative
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`balance due, Best Care must immediately make funds available in its bank account
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`designated for Central Payment Services and must allow PPOk to recoup all monies due
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`from Best Care by electronic funds transfer.
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`15.
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`Thus, under the Network Agreement, Best Care is required to reimburse
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`PPOk if Caremark or any other payor recoups or withholds any amount from payments
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`owed to PPOk due to Best Care, regardless of whether Best Care disputes the action of
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`Caremark.
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`16.
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`Best Care may dispute Caremark’s audit and other findings pursuant to
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`Caremark’s appeal procedures.
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`17.
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`However, any such appeal is between Caremark and Best Care, it does not
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`affect Best Care’s unconditional obligation to immediately reimburse PPOk for money
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`recouped or withheld by payors such as Caremark.
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`18. Moreover, upon information and belief, Best Care has exhausted all appeals
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`with Caremark and has not filed any arbitration seeking to overturn Caremark’s findings.
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`19.
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`Under Section 3.3 of Addendum A to the Network Agreement, Best Care
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`agreed to comply with the terms of Payor Plans and Provider Manuals, which would
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`include Caremark’s Plans and Provider Manuals. Further Best Care agreed that amounts
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`payable to Best Care for pharmacy services may be forfeited or withheld to the extent such
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`services are not in accordance with the terms of said Payor Agreements and Provider
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`Manuals.
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`4
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 5 of 10
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`20.
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`Section 6.1 of the Network Agreement provides that Best Care agrees to
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`indemnify, defend, and hold PPOk harmless from and against any and all claims, liabilities,
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`losses, damages, causes of action or injuries, together with costs and expenses, including
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`reasonable attorneys’ fees, arising out of or resulting from Best Care’s failure to comply
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`with the obligations set forth in the Network Agreement.
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`CAREMARK’S AUDIT OF BEST CARE
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`21.
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`On June 2, 2021, Caremark recouped $531,143.53 from Central Payments
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`due to an audit of claims it had paid to Best Care.
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`22.
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`Caremark states the audit determined that Best Care had routinely failed to
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`collect co-pays for high-cost medications dispensed to Caremark’s members, which was a
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`violation of Caremark’s Plan and Provider Manual, and thus Best Care had been overpaid
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`for the claims where it waived co-pays.
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`23.
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`24.
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`Routinely waiving co-pays is a form of insurance fraud.
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`On December 9, 2021, Best Care sent a letter to Caremark stating it accepted
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`the audit finding that it had waived co-pays.
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`25.
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`In the same letter, Best Care asserted that the overpayment and
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`administrative fees recouped by Caremark alleged was approximately $320,000 too much.
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`26.
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`27.
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`Thus, Best Care admits it owes PPOk at least $202,000.
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`In addition to the amounts recouped based on Best Care waiving co-pays,
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`approximately $85,370.10 was withheld from payments to PPOk due to Best Care’s failure
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`to satisfactorily meet requirements under Caremark’s contract provisions regarding Direct
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`and Indirect Remuneration, reversed claims, and other recoupments by Caremark.
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`5
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 6 of 10
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`28.
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`PPOk has demanded Best Care repay the recouped and withheld amounts
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`as required by the Network Agreement.
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`29.
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`To date, Best Care has failed to do so, in violation of its obligations under
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`the Network Agreement.
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`CLAIMS FOR RELIEF
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`COUNT I –BREACH OF CONTRACT
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`The above paragraphs are incorporated herein.
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`Under the Network Agreement, Best Care was required to:
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`a.
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`Reimburse PPOk for the amount recouped or withheld by Caremark
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`because of Best Care;
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`b.
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`Comply with the terms of Caremark’s Plans and Provider Manuals.
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`Best Care has breached each of these duties.
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`Best Care is obligated to indemnify PPOk from all claims, liabilities, losses,
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`30.
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`31.
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`32.
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`33.
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`damages, or injuries, together with costs, including reasonable attorneys’ fees, arising out
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`of or resulting from Best Care’s breach of these duties.
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`34.
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`As a result of Best Care’ breach of the Network Agreement, PPOk is entitled
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`to damages, including interest thereon and all costs and attorneys’ fees incurred.
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`COUNT II – HENRY NGUYEN
`ALTER EGO LIABILITY/PIERCING CORPORATE VEIL
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`The above paragraphs are incorporated herein.
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`Upon information and belief, Best Care and other entities owned by Henry
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`35.
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`36.
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`Nguyen are mere instrumentalities or alter egos of Henry Nguyen.
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`37.
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`Henry Nguyen used Best Care and other pharmacies he owns or owned to
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`wrongfully provide patients with high-cost medications without charging them a co-pay.
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`6
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 7 of 10
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`38.
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`Upon information and belief, Henry Nguyen is the sole member of Best
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`Care.
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`39.
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`Upon information and belief, Henry Nguyen is or was the sole shareholder
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`of other pharmacies.
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`40.
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`Upon information and belief, Best Care was at all relevant times
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`undercapitalized.
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`41.
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`Upon information and belief, Henry Nguyen controls and manages Best
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`Care and the other pharmacies he owns or previously owned.
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`42.
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`Upon information and belief, employees are shared between Best Care and
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`other pharmacies owned or formerly owned by Henry Nguyen and such employees are in
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`essence employees of Henry Nguyen.
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`43.
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`Upon information and belief, shortly after receiving notice of Caremark’s
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`audit of Best Care and the likelihood that Caremark would recoup hundreds of thousands
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`of dollars based on its failure to collect co-pays for high-dollar medications, Henry Nguyen
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`purported to transfer his ownership in other pharmacies to his sister and his brother-in-law.
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`44.
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` Upon information and belief, shortly after receiving notice of Caremark’s
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`audit of Best Care and the likelihood that Caremark would recoup hundreds of thousands
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`of dollars based on failure to collect co-pays for high-dollar medications, Henry Nguyen
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`transferred patients from Best Care to such other pharmacies in an attempt to escape
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`liability for and recoupment of the overpayment amount.
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`45.
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`Upon information and belief, funds, patient records, and assets were freely
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`transferred amongst Best Care and other pharmacies owned or formerly owned by Henry
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`Nguyen.
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`7
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 8 of 10
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`46.
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`Upon information and belief, there is such a unity of interest and ownership
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`between Best Care and other pharmacies owned or previously owned by Henry Nguyen
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`that they are not separate entities but rather mere instrumentalities of Henry Nguyen.
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`47.
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`Upon information and belief, Best Care and other pharmacies owned by
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`Henry Nguyen were operated as a sham to create liability shields to protect Henry Nguyen
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`from being liable for wrongfully waiving copays for high-cost medications.
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`48.
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`Caremark determined that such pharmacies had relationships with entities
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`identified as involved in significant suspect fraud, waste, or abuse.
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`49.
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`Upon information and belief, Henry Nguyen as an individual is the person
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`responsible for the liability arising from waiving copays for high-cost medications.
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`50.
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`Because Best Care ceased operating and Henry Nguyen transferred his
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`patients to other pharmacies, Caremark’s weekly payments to Best Care were far below
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`the amount recouped by Caremark, resulting in a deficit of payment owed to other
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`pharmacies in PPOk’s network and requiring PPOk to cover the recoupment out of its own
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`pockets.
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`51.
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`Accordingly, adhering to the doctrine of corporate entity with respect to
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`Best Care would promote injustice. The Best Care corporate entity should be disregarded
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`in order to protect the rights of PPOk and to accomplish justice.
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`COUNT III - TEMPORARY INJUNCTION
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`The above paragraphs are incorporated herein.
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`Upon information and belief, when Best Care and Henry Nguyen became
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`52.
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`53.
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`aware of their liability for improperly waiving co-pays for high-dollar medications, they
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`moved or disposed of property with the intent to defraud PPOk or to render any judgment
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`8
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 9 of 10
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`PPOk or may obtain against Best Care or Henry Nguyen ineffectual by ceasing to provide
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`services out of Best Care, closing and transferring all funds out of Best Care’s bank
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`account, in violation of the Network Agreement, and transferring Best Care’s patients and
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`business to other pharmacies owned or previously owned by Henry Nguyen.
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`54.
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`Based on Best Care and Henry Nguyen’s previous attempts to move
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`property to defraud creditors or render judgment ineffectual, it appears that Best Care and
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`Henry Nguyen will continue to do so.
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`55.
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`Because of the threat or likelihood of such continued misconduct,
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`temporary injunction is necessary to restrain such removal or disposition.
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`PRAYER FOR RELIEF
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`PPOk requests the Court enter a judgment against Best Care and Henry Nguyen
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`providing:
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`a. That the corporate entity known as Medi Brothers, LLC dba Best Care
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`Pharmacy be disregarded with respect to PPOk’s claims against Best Care and
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`Henry Nguyen;
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`b. Judgment against Best Care and Henry Nguyen, jointly and severally, in the
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`amount of $616,513.63 or another exact amount to be proven at trial, together
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`with interest, costs, and attorneys’ fees;
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`c. A declaratory judgment declaring that Best Care and Henry Nguyen are jointly
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`and severally obligated to indemnify PPOk from and against any and all claims,
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`liabilities, losses, damages, causes of action or injuries, including costs and
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`attorneys’ fees, arising out of Best Care’s breach of contract;
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`9
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`Case 5:22-cv-00247-JD Document 1 Filed 03/24/22 Page 10 of 10
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`d. A temporary injunction restraining Best Care and Henry Nguyen from
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`removing or disposing of property; and
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`e. Such other relief as the Court may deem just, fair, and proper.
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`Respectfully submitted,
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`CONNER & WINTERS, LLP
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`Hilary Velandia, OBA No. 21854
`4100 First Place Tower
`15 East 5th Street
`Tulsa, Oklahoma 74103-4344
`(918) 586-5693
`Fax: (918) 586-8649
`hvelandia@cwlaw.com
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`Attorney for Plaintiff,
`Pharmacy Providers of Oklahoma, Inc.
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