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Omnicare on a graduated basis. In exchange, Omnicare caused prescriptions to be switched to,

filled with, and refilled with the "preferred" medications. Specifically, the kickbacks were based

on the percentage of market share Omnicare achieved through its wholesale switching of

prescriptions within each drug class. The larger the percentage of the market share achieved, the

higher the kickback. Thus, the precise amount of the money to be paid to Omnicare was not

known at the time the parties entered into the Market Share Agreement.

212.

The

Defendant

Manufacturers

induced

Omnicare

to

submit

false

claims

when

there was a kickbacks-for-switches scheme in place. Omnicill'e rarely did wholesale switches

within a therapeutic drug class in the absence of a Market Share Agreement.

213.

All

of the

conspirators

were

profiting

from

the

illegal

switches

that

increased

market share, and all of the conspirators knew that the government would pay for the

improperly-provided "preferred" medications. It was the direct, intended, and foreseeable result

of the Defendant Manufacturers' kickback payments that Omnicare would submit claims to the

government for "preferred" medications. Each of the "preferred" medications Omnicare

dispensed to Medicaid bendiciaries under the Market Share Agreements was procured in

violation of the AKS.

214.

Compliance with the AKS, as well as all other relevant laws ill1d regulations, is a

condition precedent for a Medicaid service provider to lawfully seek reimbursement from the

Medicaid

program

for

goods

and

services

provided

to

Medicaid

beneficiaries.

42

U.S.C.

§1320a-7b(b).

Thus,

as

a

matter

of

law,

products

purchased

in

violation

of

the

AKS

are

ineligible for government reimbursement.

215.

Defendant Manufacturers violated 42 U.S.C. §§1320(a)-7(a) and 7(b) when they

willfully entered into a conspiracy/kickback scheme and paid kickbacks in exchange for

59

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