Drug stores turn to Comcast ruling in W.Va. AG's case

By John O'Brien | Jun 3, 2010


CHARLESTON, W.Va. (Legal Newsline) - A group of drug stores wants a lawsuit filed by West Virginia Attorney General Darrell McGraw to be heard in federal court, just as his antitrust case against cable provider Comcast is.

A federal judge remanded a similar case against Rite Aid, but the drug stores filed a notice of supplemental authority Friday to draw attention to the Comcast ruling. It said McGraw's case is a class action and should be heard in federal court.

McGraw's lawsuit against Target, Wal-Mart, CVS, Kmart, Kroger and Walgreen alleges the company did not pass savings on generic prescription drugs on to consumers.

The suit against Comcast alleges the company is wrong to require subscribers purchase one of its cable boxes when others are on the market. U.S. District Judge Anita Brody of Pennsylvania wrote that McGraw had no reason to bring the suit under his parens patriae capacity because those affected are consumers.

Brody wrote that 22 similar cases have been consolidated in her jurisdiction by a multidistrict litigation panel.

U.S. District Judge John Copenhaver, of West Virginia, said no federal issues existed in the Rite Aid suit.

"Inasmuch as Rite Aid has failed to establish a 'substantial and actually disputed' federal issue embedded within the plaintiff's state-law claims, the court declines to find federal question jurisdiction," Copenhaver wrote.

McGraw hired Bailey & Glasser and DiTrapano Barrett & DiPiero to pursue the drug store cases. The two firms have contributed more than $60,000 to McGraw's campaign fund over the years, including $11,800 for his 2008 race against Republican Dan Greear.

McGraw hired Carl Frankovitch of Weirton, W.Va., and Teresa Toriseva of Wheeling, W.Va., for the Comcast lawsuit.

McGraw took in $14,000 from a fundraiser held by Toriseva before the 2008 election in Wheeling. She was recently part of a litigation team appointed by McGraw that split $3.9 million in fees for their work in the State's lawsuit against VISA and MasterCard.

Toriseva's firm also hosted a fundraiser in June 2007, and McGraw took in $8,500 in donations.

Frankovitch has donated $2,000 to McGraw.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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