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Omnicare's switching prescriptions within therapeutic classes.

216.

Omnicare

certified

in

its

applications

for

enrollment,

vanous

agreements

to

participate 111 state medical assistance programs and routinely certified in its thousands of

Medicaid claim submissions for the Defendant Manufacturers' "preferred" medications that such

claims complied with all relevant laws and regulations, including the AKS. Such certifications

were knowingly false when made; Omnicare knew at the time that each such claim was

ineligible for reimbursement.

217.

The

Defendant

Manufacturers

caused

Omnicare

to

explicitly

and

implicitly

falsely celtify that it was acting in compliance with all applicable laws and regulations, including

the AKS, for each and every claim Omnicare submitted for a switched prescription by (1)

conspiring to defraud the government and (2) paying Omnicare kickbacks pursuant to the

conspiratorial Market Share Agreements.

218.

Accordingly,

the

Defendant

Manufacturers

knowingly

caused

to

be

submitted

ineligible claims for reimbursement to the government that they knew the government did not

owe for the purpose of defrauding the government into paying these improper claims.

219.

Although "safe harbor" regulations exist to protect certain relatively innocuous

and even beneficial commercial arrangements, no such provision protects the payments made by

Defendant Manufacturers. One reason for these payments not being protected activity is that the

benefits of the unlawful payments were not passed on to the government (e.g. through reported

best prices), nor was the existence oftl10se payments disclosed.

C.

THE KICKBACKS-FOR-SWITCHES SCHEME VIOLATED FEDERAL AND STATE FALSE CLAIMS ACTS

220.

The government would not knowingly pay a claim for a medication purchase

resulting from an illegal kickback arrangement. Liability under the False Claims Act and state

60

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