08-3187 Volume Appendix22.pdf - Medical Supply Chain

Cardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885 (10th Cir. 2000) 9Chewning v. Ford Motor Company, 2003 SC 109 (SC, 2003) 9Dahiya v. Talmidge Int'l, Ltd., 371 F.3d 207, 213 (5th Cir.2004) 6Director of Revenue, State of Colorado v. United States, 392 F.2d 307 at 308-309 (10th Cir., 1968) 5Duvall v. Silvers, Asher, Sher & McLaren, M.D.'s, 998 S.W.2d 821 at 823 (Mo. App.W.D., 1999) 1E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464(1961) 8Erickson v. Pardus, No. 06-7317 (U.S. 6/4/2007) 9Erickson v. Pardus, No. 06-7317 (U.S. 6/4/2007) 1Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593 at 596 (Mo. App. E.D., 1998) 3Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593 at 596 7Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593 at 596 7Groothand v. Schlueter, 949 S.W.2d 923, 927 (Mo.App.1997) 12In re Tamoxifen Citrate Antitrust Lit., 429 F.3d 370 at pg. 401 (Fed. 2nd Cir., 2005) 9ITCO Corp. v. Michelin Tire Corp., Commercial Div., 722 F.2d 42 at 52 (C.A.4 (N.C.), 1983) 3ITCO Corp. v. Michelin Tire Corp., Commercial Div., 722 F.2d 42 at 49 (C.A.4 (N.C.), 1983) 6Johnson v. Waters, 111 U.S. 640, 667, 4 S.Ct. 619, 633, 28 L.Ed. 547 (1884) 9Jones v. Jackson County Circuit Court, 162 S.W.3d 53 (Mo, 2005) 1Kansas City Urology, P.A. v. United Healthcare Services, No. 0516-CV04219 2Kansas City Urology, P.A. v. United Healthcare Services, No. WD 67814 (Mo. App. 7/15/2008) 2Kolb v. Scherer Bros. Financial Services Co., 6 F.3d 542, 544 (8th Cir. 1993) 3Lankford v. Sherman, 451 F.3d 496 (8th Cir., 2006) 1Leber-Krebs, Inc. v. Capitol Records, 779 F.2d 895 at 901 (C.A.2 (N.Y.), 1985) 9Lipari v. US Bancorp et al. Case no. 07-cv-02146-CM-DJW 3LPP Mortgage, Ltd. v. Marcin, Inc., 224 S.W.3d 50 at 53-54 (Mo. App., 2007) 12Marshall v. Holmes, 141 U.S. at 599, 12 S.Ct. at 65 9Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81 (3rd Cir.1977) 10Metts v. Clark Oil & Ref. Corp., 618 S.W.2d 698, 703 (Mo.App. E.D.1981) 9ii08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8377

Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo. banc 1993) 11Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 315 (Mo. banc 1993) 12Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) 1North Kansas City Hosp. Bd. of Trustees v. St. Luke's Northland Hosp., 984 S.W.2d 113 at 120 (Mo.App.W.D., 1998) 9Order Lipari v. US Bancorp et al. Case no. 07-cv-02146-CM-DJW 7Sherrod v. School Board of Palm Beach County, No. 07-13747 (11th Cir. 4/7/2008) 4Single Chip Systems Corp. v. Intermec IP Corp., 495 F.Supp.2d 1052 at 1064-65 (S.D. Cal., 2007) 4Slone v. Purina Mills, Inc., 927 S.W.2d 358, 371 (Mo.App.1996) 12State ex rel. J.E. Dunn Const. Co. v. Fairness in Const. Bd. of City of Kansas City, 960 S.W.2d 507 at 512-514 (Mo. App.W.D., 1997) 5State ex rel. J.E. Dunn Const. Co. v. Fairness in Const. Bd. of City of Kansas City, 960 S.W.2d 507 at 512-514 (Mo. App.W.D., 1997) 6State ex rel. Metal Service Center of Georgia, Inc. v. Gaertner, 677 S.W.2d 325 (Mo., 1984) 7Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. banc 1983) 1Tucker v. Arthur Andersen & Co., 646 F.2d 721, 728 (2d Cir.1981) 6United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) 9Vinson v. Vinson, 725 S.W.2d 121, 123 (Mo.App., E.D.1987) 5Vinson v. Vinson, 725 S.W.2d 121, 123 (Mo.App., E.D.1987) 3Williams v. Finance Plaza, 78 S.W.3d 175 (Mo. Ct. App., 2002) 3Zenith Radio Corp v. Hazeltine Research, Inc, 401 U.S. 321 at 340, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) 3Zipper v. Health Midwest, 978 S.W.2d 398 at 417 (Mo. App.W.D., 1998) 9TABLE OF STATUTESF.R. Civ.P. Rule 60b 5F.R. Civ.P. Rule 59 5§ 416.031.1 RSMo 10§ 416.031.2 RSMo 10iii08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8378

On July 22, 2008 the defendants CoxHealth and Robert H. Bezanson announced a $60 MillionDollar Settlement with the US Department of Justice over the conduct of obtaining higher rates ofreimbursement from Medicare described in the plaintiff’s present complaint. See exb 1 Cox Press Release.The announcement was made the same day that the plaintiff responded to the former US Attorney for theWestern District of Missouri Bradley J. Schlozman’s motion to dismiss federal RICO charges arguing thecurrent US Attorney John Wood could not serve as defense counsel to Schlozman because Woodparticipated with Schlozman in obstructing the criminal prosecution of CoxHealth and other hospitalofficials including Robert H. Bezanson that had been initiated by Todd Graves on the basis of Grand Juryfindings. See exb 2 Suggestion opposing Schlozman at pages 2 to 8 on Wood’s standing generally anddiscussing the present state action.The plaintiff had discovered US Attorney Todd Graves had been unlawfully fired like USAttorney Carol Lam for investigating Medicare fraud See exb 3. Graves was Ninth US Attorney pressrelease. The revelation that former US Attorney General Alberto Gonzales had lied to the US SenateJudiciary Committee by stating a month before the plaintiff’s press release that there were only eight firedUS Attorneys and that Attorney General Alberto Gonzales had been sandbagging the False Claims Actprosecution of the defendant Novation LLC led to Gonzales’ resignation. See exb 4 Gonzales Sandbaggingpress release.The Blue Cross Blue Shield practice of giving preferential treatment and reimbursement rates aspart of an anticompetitive Missouri hospital cartel to facilitate antitrust violations that the plaintiffdescribed in his complaint involving Blue Cross and Blue Shield of Kansas City’s claim processing centerBlue Cross and Blue Shield of Kansas (until early this year) was found to adequately state a claim forMissouri state law antitrust violations of price fixing and monopolization in violation of antitrust provisionsin Section 416.031, RSMo 2000 in Kansas City Urology, P.A. v. United Healthcare Services, No. 0516-CV04219. The Western District Court of Appeals however found that unlike the plaintiff in the presentcase, the physician’s group plaintiff could not be the private attorney general to vindicate the antitrustpolicies of the state because they were in a contract with the defendants that imposed valid arbitrationrequirements. Kansas City Urology, P.A. v. United Healthcare Services, No. WD 67814 (Mo. App.7/15/2008).208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8381

1. The Defendants’ Assertion of Res JudicataThe doctrine of res judicata refers to the effect of a prior judgment on a subsequent judicialproceeding. Vinson v. Vinson, 725 S.W.2d 121, 123 (Mo.App., E.D.1987). All of the defendants exceptLathrop have sought to have this court impose claim preclusion in violation of this jurisdiction’s controllingprecedent barring res judicata where the element of identity fails. Res judicata does not exist where there isno identity of the things sued over in facts similar to this jurisdiction’s controlling precedent in Williams v.Finance Plaza, 78 S.W.3d 175 (Mo. Ct. App., 2002) and the established authority of Finley v. St. John'sMercy Medical Center, 958 S.W.2d 593 at 596 (Mo. App. E.D., 1998) finding res judicata does not barclaims against subsequent conduct, consistent with the US Supreme Court decision on subsequent antitrustconduct being actionable in Zenith Radio Corp v. Hazeltine Research, Inc, 401 U.S. 321 at 340, 91 S.Ct.795, 28 L.Ed.2d 77 (1971).The res judicata effect of the prior judgments, which were entered in federal court and based onfederal law, is governed by federal law. Canady v. Allstate Ins. Co., 282 F.3d 1005, 1014 (8th Cir. 2002). Infederal court, a plaintiff is not required to sue all defendants in one action, Headley v. Bacon, 828 F.2d1272, 1275 (8th Cir. 1987); and generally, a claim is precluded under res judicata principles if the first suitresulted in a final judgment on the merits and was based on proper jurisdiction, and both suits involve thesame parties or those in privity with them and are based upon "the same nucleus of operative fact," Kolb v.Scherer Bros. Financial Services Co., 6 F.3d 542, 544 (8th Cir. 1993).The defendants are asking this court to apply a res judicata effect to judgments (interim ordersstill being litigated) in the same lawsuit:“It comes as no surprise that Michelin has been unable to direct our attention to a singledecision according res judicata effect to the dismissal of one alternative claim in a single lawsuit toanother alternative claim in the same suit. Such an application of res judicata would defeat the verypurposes the doctrine is intended to serve.”ITCO Corp. v. Michelin Tire Corp., Commercial Div., 722 F.2d 42 at 52 (C.A.4 (N.C.), 1983).Even Hon. Judge Carlos Murguia ruled on Nov. 16, 2007 in Lipari v. US Bancorp et al. Case no. 07-cv-02146-CM-DJW that “… res judicata does not bar the state law claims that were raised in Medical Supply Ior II. In both cases, the court declined supplemental jurisdiction over the state law claims and dismissed thestate law claims without prejudice. See exb 7 Order Denying US Bank Dismissal.308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8382

New sets of facts arising in later incidents are described in the complaint and give the plaintiff newclaims. See 46 Am. Jur. 2d 841-42, Judgments § 567 (1994) (An ''earlier adjudication is not permitted tobar a new action to vindicate rights subsequently acquired, even if the same property is the subject matterof both actions. . . . [A] judgment is not res judicata as to rights which were not in existence at the time ofthe rendition of the judgment'').“The doctrine of res judicata does not bar a party from bringing a claim that arose subsequent to aprior judgment involving the same parties. Accordingly, the claim is not precluded by the settlementand dismissal of those claims.”American Home Assur. Co. v. Chevron, USA, Inc., 400 F.3d 265 at fn 22 (5th Cir., 2005). Thedefendants have never obtained immunity for their continuing and subsequent acts to monopolize therelevant hospital supply market or to deprive the plaintiff of counsel:“Even if the dismissal had been with prejudice, the district court would have been mistaken todismiss the second suit on the ground of res judicata. Res judicata does not bar a suit based onclaims that accrue after a previous suit was filed. Doe v. Allied-Signal, Inc., 985 F.2d 908, 914 (7thCir.1993); Spiegel v. Continental Illinois National Bank, 790 F.2d 638, 646 (7th Cir.1986); Rawe v.Liberty Mutual Fire Ins. Co., 462 F.3d 521, 530 (6th Cir.2006); Computer Associates Int'l, Inc. v.Altai, Inc., 126 F.3d 365, 369-70 (2d Cir.1997); Manning v. City of Auburn, 953 F.2d 1355, 1360(11th Cir.1992). It does not matter whether, as in the case of harassment, the unlawful conductis a practice, repetitive by nature, see National Railroad Passenger Corp. v. Morgan, 536 U.S.101, 117-19, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), that happens to continue after the firstsuit is filed, or whether it is an act, causing discrete, calculable harm, that happens to berepeated. The filing of a suit does not entitle the defendant to continue or repeat the unlawfulconduct with immunity from further suit. Lawlor v. National. Screen Service Corp., 349 U.S.322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955).” [Emphasis added]Smith v. Potter, 513 F.3d 781 (7th Cir., 2008). Subsequent claims are permitted:“The preclusion of claims that "could have been brought" does not include claims thatarose after the original complaint was filed in the prior action, unless the plaintiff actually assertedthe claim in an amended pleading, but res judicata does not bar the claim simply because theplaintiff elected not to amend his complaint. Pleming v. Universal-Rundle Corp., 142 F.3d 1354,1357 (11th Cir. 1998). This is true even if the plaintiff discussed the facts supporting the subsequentclaim in support of his claims in the prior case. Id. at 1358-59.”Sherrod v. School Board of Palm Beach County, No. 07-13747 (11th Cir. 4/7/2008) (11th Cir.,2008). Continuing conduct described in the complaint is also not precluded:“In Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955), theSupreme Court expressly rejected the argument that resolution of a res judicata issue should turn on"whether the [parties'] conduct [is] regarded as a series of individual torts or as one continuing tort."Id. at 328, 75 S.Ct. 865. Instead, the Court looked to the character of the conduct, i.e. the specificfactual basis, of both suits in order to determine if the same cause of action existed.”2007).Single Chip Systems Corp. v. Intermec IP Corp., 495 F.Supp.2d 1052 at 1064-65 (S.D. Cal.,408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8383

2. The Defendants’ Assertion of Collateral EstoppelCollateral estoppel, also referred to as issue preclusion, precludes the same parties fromrelitigating issues previously adjudicated. Vinson v. Vinson, 725 S.W.2d 121, 123 (Mo.App., E.D.1987).All of the defendants except Lathrop have sought to have this court violate the controlling precedentbarring collateral estoppel or issue preclusion in State ex rel. J.E. Dunn Const. Co. v. Fairness in Const.Bd. of City of Kansas City, 960 S.W.2d 507 at 513 (Mo. App.W.D., 1997). Where there is a question ofwhether a decision was made on the merits as is the circumstance of the Kansas District litigation whichhas dismissed over the judge’s disbelief, preventing evidence being heard on the fact driven issue ofrelevant market and not the merits has been raised in a motion for new trial under Rule 60b then a Motionfor reconsideration under Rule 59 where the Kansas District Court indicated that it was givingconsideration to reopening the plaintiff’s federal antitrust and racketeering claims by making a show causeorder against the defendants. See exb. 5 Show Cause Order. Under the controlling law of the federaljurisdiction, Hon. Judge Carlos Murguia’s order prevents the issues in the Kansas District Court case frombeing final: “The fact that the court expresses an intent to further consider the judgment prevents itsfinality." Suggs v. Mutual Ben. Health & Accident Ass'n, 10 Cir., 115 F.2d 80.” [Emphasis added] Directorof Revenue, State of Colorado v. United States, 392 F.2d 307 at 308-309 (10th Cir., 1968).However, no preclusive effect on issues is given to the earlier Kansas District court decisionsincluding the relevant market definition under the controlling law of this jurisdiction. State ex rel. J.E.Dunn Const. Co. v. Fairness in Const. Bd. of City of Kansas City, 960 S.W.2d 507 at 512-514 (Mo.App.W.D., 1997). The plaintiff’s Kansas District Court case is now on appeal and has not resulted in a finaljudgment on the merits.Collateral estoppel under Missouri law applies if four conditions are met: 1) the issue decided inthe prior adjudication is identical to the issue in the present action; 2) the prior adjudication resulted in ajudgment on the merits; 3) the party against whom collateral estoppel is asserted must have been a part orone in privity with the party in the prior adjudication; and 4) the party against whom collateral estoppel isasserted must have had a full and fair opportunity in the prior adjudication to litigate the issues. Vinson, 725S.W.2d at 124. Missouri and federal law is materially the same, "the doctrine of collateral estoppel hasthree requirements: (1) the prior federal decision resulted in a judgment on the merits; (2) the same fact508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8384

issue must have been actually litigated in the federal court; and (3) the disposition of that issue must havebeen necessary to the outcome of the prior federal litigation." Dahiya v. Talmidge Int'l, Ltd., 371 F.3d 207,213 (5th Cir.2004) in order for a judgment to be preclusive, the issue in question must have been actuallydecided, and its determination must have been essential to the judgment. See, e.g., Tucker v. ArthurAndersen & Co., 646 F.2d 721, 728 (2d Cir.1981). If an issue was not actually decided in the priorproceeding, or if its resolution was not necessary to the judgment, its litigation in a subsequent proceedingis not barred by collateral estoppel. See, e.g., Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 60L.Ed.2d 767 (1979).Even if the appeal is not successful, there is no finality of judgment until the pendant state antitrustclaims now in this court are addressed. By dismissing Medical Supply’s state claims without prejudice, adetermination not opposed or appealed at the time by the defendants, the trial court elected not to make apreclusive final judgment: “A final judgment embodying the dismissal would eventually have been enteredif the state claims had been later resolved by the court.” Avx Corp. v. Cabot Corp., 424 F.3d 28 at pg 32(Fed. 1st Cir., 2005). As a non- final judgment, the Memorandum & Order granting dismissal was a mereinterim order. Id.Where there is a question of whether a decision was made on the merits as is the circumstance ofthe Kansas District litigation which has dismissed over the judge’s disbelief, preventing evidence beingheard on the fact driven issue of relevant market or other issues cited by the defendants no preclusive effecton issues is given to the earlier decisions under the controlling law of this jurisdiction. State ex rel. J.E.Dunn Const. Co. v. Fairness in Const. Bd. of City of Kansas City, 960 S.W.2d 507 at 512-514 (Mo.App.W.D., 1997).The progression with the plaintiff’s state antitrust claims would have the potential to require thereversal of the dismissal of the federal claims if the dismissal were a final judgment instead of a mereinterim order:“There being manifest a genuine issue of fact material, indeed, crucial, to ITCO's state lawclaim, it follows that the district court incorrectly granted summary judgment for Michelin on thatclaim and that the judgment must be reversed.”ITCO Corp. v. Michelin Tire Corp., Commercial Div., 722 F.2d 42 at 49 (C.A.4 (N.C.), 1983).608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8385

3. The Defendants’ Assertion that the Plaintiff lacks StandingThis Missouri Circuit court has already rejected the defendants’ argument the plaintiff lacksstanding for his assigned rights of the same dissolved Missouri corporation in Samuel K. Lipari v. GeneralElectric Co. et al, Case No. 0616-cv07421. See exb 6 Order denying GE Motion to dismiss.Even Hon. Judge Carlos Murguia has ruled tat the plaintiff has standing over the assigned claims:“Missouri law does, however, allow a dissolved corporation to assign its claims to a thirdparty.See, e.g., Smith v. Taylor-Morley, Inc., 929 S.W.2d 918 (Mo. Ct. App. 1996) (upholdingdissolved corporation’s written assignment of rights to a purchase contract). The assignee may sueto recover damages for the dissolved corporation’s claims. Id. (holding assignee of dissolvedcorporation’s rights under a purchase contract could sue for injuries to dissolved corporation forbreach of the purchase contract). Here, plaintiff alleges that he is the assignee of all rights andinterests of Medical Supply, including the claims in this lawsuit. Accepting as true all materialallegations of the complaint and construing the complaint in favor of plaintiff, the court finds thatplaintiff has met his burden at this stage of the proceeding. Defendant’s motion is denied withrespect to standing.”Above from exb 7 Order Lipari v. US Bancorp et al. Case no. 07-cv-02146-CM-DJW at page 2.The plaintiff has standing under the Missouri antitrust statutes and rights continuing as a soleproprietor in the market for hospital supplies still monopolized by the Novation LLC cartel with thedefendants and subjected to the merger of his last two competitors the defendants Neoforma, Inc. and GHXLLC in the relevant market for hospital supplies in the State of Missouri and the relevant market of hospitalsupplies through internet eCommerce distribution in Missouri that took place subsequent to the filing of thefederal complaint and over the merger which was completed after the dissolution of Medical Supply Chain,Inc. under the controlling case Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593 at 596.4. The Defendants’ Assertion of a Time BarThe litigation in the federal action still continues so all assertions that the plaintiff has exhaustedhis year long savings clause are frivolous. In addition, these arguments could have only applied to conductoccurring prior to the initiation of the federal action for damages, not subsequent to the filing oramendment of the federal action under Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593 at 596.5. The Defendants’ Assertions Against Long Arm JurisdictionThe VHA and UHC executive defendants sought to have this court invalidate the legislature’samendment to Missouri’s long arm statute and prior controlling precedent in State ex rel. Metal ServiceCenter of Georgia, Inc. v. Gaertner, 677 S.W.2d 325 (Mo., 1984) and contrary to the Eastern District708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8386

Appellate ruling in Aldein v. Asfoor, 213 S.W.3d 213 (Mo. App., 2007), the same defendants have filedsworn affidavits that create a factual controversy with previous court filings over the voluntary invocationof Missouri jurisdiction.The plaintiff has prepared a conflicting affidavit with court record attachments revealing See exb8 Affidavit of Plaintiff and affidavit attachments 1 and 2. The defendants Robert J. Zollars, CurtNonomaque,Robert J. Baker, Jerry A. Grundhoffer, Andrew Cecere, and Andrew S. Duff have voluntarily availedthemselves of jurisdiction in Missouri.The plaintiff complaint alleges that the defendants’ conspiracy including Robert J. Zollars, CurtNonomaque, Robert J. Baker, Jerry A. Grundhoffer, Andrew Cecere, and Andrew S. Duff caused injury toMissourians in the State of Missouri and the complaint alleges the conspirators engaged in schemesincluding Insure Missouri and a differential treatment of Medicare claims to Novation LLC memberhospitals in Missouri to competitively disadvantage healthcare providers and hospital supply distributorsincluding the plaintiff when they do not participate in the Novation LLC scheme to artificially inflatehealthcare costs.6. The Defendants’ Assertion of Noerr-Pennington based ImmunityThe defendants GHX and Neoforma argue the Noerr-Pennington doctrine from E.R.R. PresidentsConference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961)immunizes the misconduct of the defendants in related litigation. GHX and Neoforma do not attempt to usethe doctrine to immunize the Insure Missouri scheme that the complaint alleges all the defendantsconspired in an attempt to monopolize the Missouri market for hospital supplies in January 2008. Thereason the doctrine is not raised as a defense to attempted monopolization through the Insure Missourischeme is likely because the scheme was not adopted, the Missouri State Legislature finding the failure toutilize competitive bidding to be unlawful and the US Secretary of Health and Human Services determiningthat he could not lawfully go through with dispersing Medicaid money to the state outside of theCongress’s statutes requiring Medicaid spending oversight doomed the defendants’ plans. Since thegovernment did not implement the scheme described in the complaint, their clearly could be no Noerr-808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8387

Pennignton doctrine immunity for the means described by the plaintiff to monopolize the distribution ofhospital supplies in Missouri. Noerr-Pennington:"does not authorize anticompetitive action in advance of [the] government's adopting the industry'santicompetitive proposal. The doctrine applies when such action is the consequence of legislation orother governmental action, not when it is the means for obtaining such action." In re Brand NamePrescription Drugs Antitrust Litig., 186 F.3d 781, 789 (7th Cir.1999) (emphasis in original); JusterAssocs. v. City of Rutland, 901 F.2d 266, 271-72 (2d Cir.1990) (stating that when a claimed restraintis the consequence of government action, it falls within the purview of Noerr-Pennington immunity,but when the restraint is the means by which the defendants seek to obtain favorable governmentaction, it does not).”In re Tamoxifen Citrate Antitrust Lit., 429 F.3d 370 at pg. 401 (Fed. 2nd Cir., 2005).The problem with GHX and Neoforma’s assertion of Noerr-Pennington immunity as regards toextrinsic or extra legal influence over the plaintiff’s related litigation to deprive the plaintiff of propertyrights he obtained to capitalize his entry into the hospital supply market controlled by the defendants is thatthis conduct was not a petition of a government agency. Except as it relates to Bradley J.Schlozman andJohn Wood in their capacities as US Attorney for the W.D. of Missouri or Kansas Attorney DisciplineOfficial Stanton Hazlett, the complaint does not discuss petitions of government agencies, only unlawfulconduct.In Cardtoons, the en banc court held that Noerr-Pennington did not apply and that prelitigationcommunications between private parties were not immunized by the right to petition the governmentguaranteed by the First Amendment because there was no petition addressed to the government. SeeCardtoons, L.C. v. Major League Baseball Players Ass'n, 208 F.3d 885 (10th Cir. 2000) ("Cardtoons V").It is also clearly established that the petitioner has a right to bring new claims based on conduct ina preceding litigation.“[A]n adverse party may, by bringing a new proceeding, invoke the power of thecourts to scrutinize the conduct of the parties in the previous action. Marshall v. Holmes, 141 U.S. at 599,12 S.Ct. at 65, quoting Johnson v. Waters, 111 U.S. 640, 667, 4 S.Ct. 619, 633, 28 L.Ed. 547 (1884)”[emphasis added] Leber-Krebs, Inc. v. Capitol Records, 779 F.2d 895 at 901 (C.A.2 (N.Y.), 1985). StateCourt is the appropriate forum for claims based on extrinsic fraud committed in federal court. SeeChewning v. Ford Motor Company, 2003 SC 109 (SC, 2003).7. The Defendants’ Assertions that the Complaint Fails to State the Elements of a ClaimThe Shughart Thompson & Kilroy represented defendants have stated that required elementsfor antitrust claims under state law are not present in the plaintiff’s complaint (as they did to obtain the908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8388

interim orders in Kansas District court through similar extrinsic fraud, now repeatedly cited by thedefendants) even though those same elements are pled with averments of fact to the Missouri state standardexactly where they are identified in the petition’s table of contents and an outcome of dismissal would giverise to new actionable claims against the defendants for keeping the plaintiff out of the Missouri market forhospital supplies. The GHX and Neoforma, Inc. defendants specifically assert the plaintiff has failed tostate a claim for any of his counts despite the table of contents giving the location for each subheadingelement of a claim under the current controlling law for each of the counts alleged by the plaintiff including§ 416.031.1 RSMo, § 416.031.2 RSMo, Conspiracy to Violate § 416.031(2), Tortious Interference withBusiness Relations, Fraud and Prima Facie Tort at pages 92 to 107. Despite this overt fraud on the part ofGHX and Neoforma, Inc. the defendants encourage this court to expressly rule contrary to the US SupremeCourt in Erickson v. Pardus, No. 06-7317 (U.S. 6/4/2007) because somehow the plaintiff’s claims are to bedisbelieved since the plaintiff has received pretrial orders in Kansas District Court that are critical whilealso facially void at law.The plaintiff has stated a claim against all defendants including the named individual officers andlaw firm agents on conduct within the applicable statutes of limitations.The plaintiff has adequately stated a claim for Antitrust Conspiracy under 416.031.1 RSMo at pg.s93-98. The court in Zipper v. Health Midwest, 978 S.W.2d 398 at 417 (Mo. App.W.D., 1998) observes that“… to state a violation of section 416.031, a plaintiff must allege that (1) defendants contracted, conspiredor combined with one another; (2) the conspiracy produced anticompetitive effects within the relevantgeographic and product markets; (3) the goals of the conspiracy or combination as well as the conduct infurtherance of those goals were illegal; and (4) the plaintiff suffered injury as a result of the conspiracy.”Id.The plaintiff’s complaint concisely states these four elements and the complaint’s statement of facts makesnumerous averments supporting each element in detail.The plaintiff has adequately stated a claim for Antitrust Monopoly and Antitrust AttemptedMonopoly under 416.031(2) at pg.s 98-102: "The offense of monopoly under § 2 has two elements: (1) thepossession of monopoly power in the relevant market, and (2) the willful acquisition or maintenance of thatpower as distinguished from growth or development as a consequence of a superior product, businessacumen or historic accident." Metts v. Clark Oil & Ref. Corp., 618 S.W.2d 698, 703 (Mo.App. E.D.1981)1008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8389

(citing United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)).”North Kansas City Hosp. Bd. of Trustees v. St. Luke's Northland Hosp., 984 S.W.2d 113 at 120 (Mo.App.W.D., 1998). The plaintiff’s complaint concisely states these two elements and the complaint’sstatement of facts makes numerous averments supporting each element in detail.The plaintiff has adequately stated a claim for Antitrust Conspiracy to Violate § 416.031(2) at pg.s93-103: "Every contract, combination or conspiracy in restraint of trade or commerce in this state isunlawful." Pursuant to § 416.141 RSMo 1986, we construe the section in harmony with ruling judicialinterpretations of comparable federal antitrust statutes. Section 416.031.1 closely parallels 15 U.S.C. § 1 ofthe Sherman Act. A party alleging a violation of 15 U.S.C. § 1 must allege that (1) defendants contracted,combined or conspired among each other; (2) the combination or conspiracy produced adverse,anticompetitive effects within relevant product and geographic markets; (3) the objects of and the conductpursuant to the contract or conspiracy were illegal; and (4) plaintiff was injured as a proximate result of theconspiracy. Defino, 718 S.W.2d at 510 (citing Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d72, 81 (3rd Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 413 (1978)).” The plaintiff’scomplaint concisely states these four elements and the complaint’s statement of facts makes numerousaverments supporting each element in detail. The complaint does not just describe concerted action butspecific agreements to restrain trade against competing hospital suppliers and joint conduct by thedefendants to exclude the plaintiff from the averred relevant markets.The plaintiff has adequately stated a claim for tortuous interference at pg.s 103-105. Tortiousinterference with a contract or business expectancy requires (1) a contract or valid business expectancy; (2)defendant's knowledge of the contract or relationship; (3) a breach induced or caused by defendant'sintentional interference; (4) absence of justification; and (5) damages. Nazeri v. Missouri Valley College,860 S.W.2d 303, 316 (Mo. banc 1993). The plaintiff’s complaint concisely states these five elements andthe complaint’s statement of facts makes numerous averments supporting each element in detail.The plaintiff has adequately stated a claim for fraud and deceit at pg.s 105-106. A party suing intort for fraudulent misrepresentation must establish the following nine elements: (1) a representation; (2) itsfalsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of the truth; (5) thespeaker's intent that the representation should be acted on by the hearer in the manner reasonably1108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8390

contemplated; (6) the hearer's ignorance of the falsity of the representation; (7) the hearer's reliance on therepresentation being true; (8) his right to rely thereon; and (9) the hearer's consequent and proximatelycausedinjuries. See Groothand v. Schlueter, 949 S.W.2d 923, 927 (Mo.App.1997); Slone v. Purina Mills,Inc., 927 S.W.2d 358, 371 (Mo.App.1996). The plaintiff’s complaint concisely states these five elementsand the complaint’s statement of facts makes numerous averments of specific misrepresentations by theparticular defendant with the “who, where what and how” detail supporting each element and the resultingreliance on each particular misrepresentation.The plaintiff has adequately stated a claim for prima facie tort at pgs. 106-107. “In order to makeout a submissible case of prima facie tort, a claimant must establish: ‘(1) an intentional lawful act bydefendant; (2) defendant's intent to injure the plaintiff; (3) injury to the plaintiff; and (4) an absence of orinsufficient justification for defendant's act.’ Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 315 (Mo. banc1993).” LPP Mortgage, Ltd. v. Marcin, Inc., 224 S.W.3d 50 at 53-54 (Mo. App., 2007). The plaintiff’scomplaint concisely states these four elements and the complaint’s statement of facts makes numerousaverments supporting each element in detail.Respectively submitted,S/Samuel K. Lipari____________________Samuel K. LipariPro se1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8391

CERTIFICATE OF SERVICEThe undersigned hereby certifies that a true and accurate copy of the foregoing instrument was forwardedthis 4th day of August, 2008, by first class mail postage prepaid to:John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300Kansas City , MO 64105Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite 11009225 Indian Creek Parkway Overland Park, Kansas 66210William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345 Grand Boulevard, Suite2800, Kansas City, MO 64108S/Samuel K. Lipari____________________Samuel K. Lipari297 NE BayviewLee's Summit, MO 64064816-365-1306saml@medicalsupplychain.comPro se1308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8392

News ReleaseFor immediate releaseJuly 22, 2008CoxHealth reaches end to settlement negotiationswith Justice DepartmentSPRINGFIELD, Mo. – CoxHealth and CoxHealth affiliate, Cox HPS of theOzarks, Inc., announced today that they have reached an end to a three-yearprocess with the federal government and have finalized a settlement agreementwith the U.S. Department of Justice.“CoxHealth can now move on with plans that we have had to put on hold due tothe constraints we were under while this process was taking place,” saidCoxHealth President and CEO Robert H. Bezanson. “We will finally be able tofocus more fully on our mission and begin the expansions and other projects thatour growing community needs.”The settlement negotiated with the U.S. Department of Justice is for an initialpayment of $35 million with five additional $5 million payments per year. Therewill be annual interest at 4% on the deferred amounts.“The settlement revolves around potential errors made by Cox many years ago ininterpreting highly complex Medicare billing regulations and in structuringbusiness relationships with physicians,” said Bezanson. “In almost every instanceof what is included in the settlement, the issues were identified by hospitaladministration and the results of our review were reported to the government.”None of the government’s claims against CoxHealth involved the quality ofpatient care or safety. Similarly, there were no findings by the government thatCoxHealth had billed the government for any services that were not actuallyprovided.More on page 2Corporate Communications | Phone: 417-269-3070 | Fax: 417-269-5750After business hours: 417-269-3211Cox North | Cox South | Cox Walnut Lawn | Burrell Behavioral Health | Oxford HealthCareExb108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8393

CoxHealth settlementContinued from page 1In a separate agreement with the Office of Inspector General of the U.S.Department of Health and Human Services, CoxHealth agreed to participate in afive-year program of intensified legal compliance education for employees,physicians and others associated with CoxHealth, as well as heightenedmonitoring and reporting to the Department.“Because we already have a strong internal Corporate Integrity program here atCoxHealth - which includes extensive annual compliance education - we feelvery confident that we as an organization will be able to honor this commitment,”said Bezanson.“Every health care organization in this country that chooses to participate inMedicare and Medicaid is challenged to navigate the very same maze ofregulations without committing errors,” said John Squires, chairman of theCoxHealth Board of Directors.In the past decade, numerous other well respected hospitals and health careorganizations—including Harvard University’s Beth Israel Medical Center,Columbia University, Corning Hospital, Johns Hopkins University, Mount SinaiMedical Center, Mayo Clinic, and Sharp Medical Center of San Diego—havebeen subject to similar government investigations on potential errors relating toMedicare and Medicaid.How the settlement amount was determined:“These health care laws are very complex and are very unforgiving,” Bezansonsaid. “They require that the government demand repayment, which can be verylarge. In fact, given the size of CoxHealth and the number of patients we treat ona daily basis, one potential error in interpreting a billing regulation can affectevery claim filed thereafter – in our case, tens of thousands of claims. Sincedamages can be assessed on a per claim basis, the repayment can quickly resultin an amount that is well beyond our ability to pay.”“The government began its settlement negotiations by taking the position thatCox should repay every claim the government alleges we improperly billed toMedicare,” said Squires. “The amount of these alleged damages exceeded theamount Cox could pay. Given the magnitude of the repayment if we were to goto trial and lose, which is always a possibility with jury trials, we negotiated withthe government until we reached an amount we could pay and still continue tofulfill our mission to serve the community now and in the future.”More on page 308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8394

CoxHealth settlementContinued from page 2“In addition the federal government can impose a pretty large consequence if ahospital will not settle, since it has the power to exclude hospitals from theMedicare program, which means a hospital can no longer accept Medicare orMedicaid patients. No tax-exempt hospital can survive an exclusion fromMedicare,” said Bezanson. “This would essentially shut down a hospital – adevastating event to any community… and that weighed heavily on our minds.”“The Board of Directors determined that the organization and our community hadbeen through enough, and that it was in the best interest of CoxHealth and thosewe serve, to settle with the government rather than engage in litigation that wouldtake many more years to resolve and cost millions in legal fees,” said DonaElkins, Board of Directors member. “Our Board and management team havebeen keenly aware for some time of the need to put the investigation behind usso we can move forward with crucial expansion projects that are necessary toserve the growing needs of our community.”“Words can’t express how difficult the decision was to agree to a settlementamount of this magnitude, but we as Board members, along with seniorleadership and those advisors with prior experience in such negotiations, finallycame to the conclusion that agreeing to the settlement amount was the betterpath for the organization and the community in the long run,” said Squires. “Wefully support the leadership, employees, and physicians in their future efforts andhave a strong commitment to the people we serve in the region.”How CoxHealth will fund the required repayment:“The Board of Directors and leadership of CoxHealth have been reserving fundsfrom the time we knew there would be an impact from the investigation,” saidBezanson, “These monies, along with some that we have had in a long-termreserve fund, will pay for the initial installment of the settlement.”“This reserve fund has been in existence for many years and is one that helps usmaintain enough cash to allow us to borrow money at better interest rates,”continued Bezanson. “Use of funds from the reserve fund will not jeopardize ourability to begin our much-needed expansion projects, since we will finance theseprojects through bonds, and our bond ratings will not suffer as a result of drawingdown on this reserve.”“CoxHealth will continue to have a sound financial foundation that will allow us tocontinue to meet our mission,” said Squires. “We also have a low cost structure,and we intend to stay cost competitive. CoxHealth will remain financiallyequipped to continue to serve the residents of southwest Missouri, thanks toMore on page 408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8395

CoxHealth settlementContinued from page 3years of sound financial management and reserving funds for unexpectedsituations such as this.”The issues involved in the investigation and settlement:There were two primary issues involved in the government’s investigation; eachis slightly different in nature:Dialysis Billing and Medical Directorships: Kidney dialysis services are governedby unique and highly technical Medicare billing regulations that can beinterpreted in different ways. CoxHealth determined that under oneinterpretation, it may have billed dialysis services provided through its OzarksDialysis Services (“ODS”) from 1999 to 2004 using a method it was not eligible tobill under. Similarly, medical director agreements with physicians are also subjectto different interpretations. CoxHealth determined that again, under oneinterpretation, the way it structured its dialysis medical director agreements atODS from 1996 to 2004 may have been incorrect. CoxHealth self-reported theseissues to the government in January 2005. None of the government’s allegationsrelating to dialysis billing involved quality of patient care or safety. In addition,there were no claims that payments were paid for services that were notprovided.Compensation to Physicians: The government’s rules regarding payments madeto physicians and their practices have shifted dramatically over the last decade.CoxHealth internally discovered that under one interpretation of these rules, itmay have provided improper compensation to physicians with Ferrell-DuncanClinic, Inc. (“FDCI”). FDCI is a separate physician corporation - not owned byCoxHealth - that is under contract with Cox to provide professional services toFerrell-Duncan Clinic (which is owned and operated by CoxHealth).CoxHealth determined that from 2000 to 2004, we may have paid physiciansfrom a revenue source from which they may not have been eligible to be paid.The results of hospital administration’s review were reported to the governmentin February 2005. None of the government’s claims relating to FDCI’s physiciansinvolved quality of patient care or safety. In addition, there were no claims thatFDCI’s physicians were paid for services that were not provided.“This process has been trying for just about everyone at CoxHealth,” Bezansonsaid. “Despite that, our people have remained dedicated and loyal to our mission,day in and day out. We cannot fully express our appreciation for their steadfastcommitment to serving and caring for our patients and our community.”More on page 508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8396

CoxHealth settlementContinued from page 4For additional information about CoxHealth’s settlement with the United States—including copies of the official agreements with the U.S. Department of Justiceand the U.S. Department of Health and Human Services, as well as interpretivematerials and other background—please visit www.coxhealth.com/settlement.The following are projects that involve CoxHealth’s reinvestment in thecommunity that can and will proceed, now that the settlement agreement isfinalized:Cox South Emergency Department ExpansionCoxHealth will break ground in spring 2009 for a 78,000-square foot Level IIEmergency Department adjacent to the current outpatient center. The new EDwill house five trauma rooms, 57 universal exam rooms, and a 25-bedobservation unit. In addition, it will have an embedded radiology department thatwill include an MRI suite, CT scans, ultrasound rooms and X-ray and fluoroscopyrooms.This is a multi-phase project and the first step will be to construct an addition onto the existing parking garage on the Cox South campus. The relocation of theEmergency Department and the addition of the new garage will displace surfaceparking and create a need for additional parking capacity. This garage additionwill increase the total parking on the campus from 1,500 to 1,786 spaces.CoxHealth will also make improvements to the roadway system on the CoxSouth campus to accommodate traffic flow in preparation for the parking garageand the Emergency Department construction. The project will begin in earlysummer with completion expected by March 2009.As a Level II Trauma Center, Cox must be ready to accommodate criticallyinjured patients. The emergency department facilities across the community havefrequently been overwhelmed and maximized due to the growth of thecommunity and use of emergency departments by patients unable to obtain careelsewhere.Walnut Lawn Orthopedic HospitalCoxHealth will invest in efforts to further develop Cox Walnut Lawn as anorthopedic hospital, due to the growth in the need for orthopedic services in anaging, yet active population. The project will create a new façade and front entryfor the hospital. In addition, the renovation of the current surgery suite willinclude four new orthopedic operating rooms, nine additional PACU beds, and aMore on page 608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8397

UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF MISSOURIKANSAS CITY, MISSOURI______________________________________________________________________Case No. 07-0849-CV-W-FJG______________________________________________________________________SAMUEL K. LIPARI(Assignee of DissolvedMedical Supply Chain, Inc.)PlaintiffGENERAL ELECTRIC COMPANY, GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDINGCORPORATION, GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, LLC, JEFFREY R.IMMELT, SEYFARTH SHAW LLP, STUART FOSTER, HEARTLAND FINANCIAL GROUP, INC.,CHRISTOPHER M. MCDANIEL, BRADLEY J. SCHLOZMANDefendants______________________________________________________________________In the United States District Courtfor the Western District of MissouriHon. Judge Fernando J. Gaitan, Jr. presiding______________________________________________________________________SUGGESTION IN OPPOSITION TO BRADLEY J. SCHLOZMAN’S MOTIONTO DISMISS FILED BY US ATTORNEY JOHN WOOD______________________________________________________________________Prepared bySamuel K. LipariPlaintiff297 NE BayviewLee's Summit, MO 64064816-365-1306saml@medicalsupplychain.comPro seExb 208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8399

Friez v. First American Bank & Trust of Minot, 2003 C08 394 (USCA8, 2003) 9H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989) 10Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997) 1Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997) 6Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) 1In re Motel 6 Securities Litigation, 161 F.Supp.2d 227 at 237 (S.D.N.Y., 2001) 13Levy v. Ohl, 477 F.3d 988 (8th Cir., 2007) 2Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752 (8th Cir., 2003) 4Limestone Development v. Village of Lemont, Ill., 520 F.3d 797 at 804 (7th Cir., 2008) 6Limestone Development v. Village of Lemont, Ill., 520 F.3d 797 at 804 (7th Cir., 2008) 10Limone v. Condon, 372 F.3d 39 at 46 (1st Cir., 2004) 14Limone v. Condon, 372 F.3d 39 at 46 (1st Cir., 2004) 2Liquidation Commission of Banco Intercontinental v. Renta, No. 06-15388 at pg. 32 (11th Cir. 6/19/2008)(11th Cir., 2008) 8Liquidation Commission of Banco Intercontinental v. Renta, No. 06-15388 at pg. 25 (11th Cir. 6/19/2008)11McLaughlin v. American Tobacco Co., 522 F3d 215 [2d Cir 2008] 13Nixon, 457 U.S. at 754, 102 S.Ct. 2690 13Papasan v. Allain, 478 U.S. 265, 269 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) 2Republic of Colombia v. Diageo North America Inc., 531 F.Supp.2d 365 at 422 (E.D.N.Y., 2007) 10Schuster v. Anderson, 378 F.Supp.2d 1070 at 1082 (N.D. Iowa, 2005) 1Schuster v. Anderson, 378 F.Supp.2d 1070 at 1096 (N.D. Iowa, 2005) 10Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) 10Sedima, S.P.R.L. v. Imrex Co., Inc., 473 US 479, 497 [1985] 13Stahl v. U.S. Dep't of Agric., 327 F.3d 697, 700 (8th Cir.2003) 2Superior Bank, F.S.B. v. Tandem Nat. Mortg., Inc., 197 F.Supp.2d 298 at 325 (D. Md., 2000) 11U.S. v. Biaggi, 705 F.Supp. 852 (S.D.N.Y., 1988) 12United Stabs v. Coonan, 938 F.2d 1553, 1559 (2d Cir.1991) 10iii08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8402

United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 134, 78L.Ed.2d 128 (1983) 12United States v. Browne, 505 F.3d 1229, 1264 (11th Cir. 2007) 11United States v. Cancilla, 725 F.2d 867, 870 (2d Cir.1984) 7United States v. Jackson, 207 F.3d 910, 914 (7th Cir.), vacated and remanded for reconsideration onunrelated grounds, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000) 10United States v. Kopituk, 690 F.2d 1289, 1323 (11th Cir. 1982), cert. denied, 463 U.S. 1209 (1983)11United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66L.Ed.2d 91 (1980) 12White v. Murphy, 789 F.2d 614 (8 Cir.1986). 13iv08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8403

SUGGESTION IN OPPOSITIONComes now the plaintiff Samuel K. Lipari and makes the following suggestion opposing Bradley J.Schlozman’s dismissal from this action.The controlling standard for this jurisdiction regarding a Rule 12(b)(6) motion for dismissal requiresthe court to consider the possibility of any facts entitling the plaintiff to relief:“The United States Supreme Court and the Eighth Circuit Court of Appeals have both observed that"a court should grant the motion and dismiss the action `only if it is clear that no relief could begranted under any set of facts that could be proved consistent with the allegations.'" Handeen v.Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73,104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); accord Conley, 355 U.S. at 45-46, 78 S.Ct. 99 ("A complaintshould not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiffcan prove no set of facts in support of his [or her] claim which would entitle him [or her] torelief.")”Schuster v. Anderson, 378 F.Supp.2d 1070 at 1082 (N.D. Iowa, 2005).The US Attorney for the Western District of Missouri, John Wood has taken the highly unusualmeasure of raising material factual disputes without evidence to support them in the defendant Schlozman’smotion for dismissal:“To be clear, Schlozman adamantly denies any wrongdoing associated with the dismissal of theLynch case, the prosecution of the ACORN employees, and his testimony before the United StatesSenate. “Schlozman’s motion to dismiss, footnote 7 at page 10. The plaintiff has not based his claim againstSchlozman for the conduct of prosecuting ACORN employees or dismissing the Lynch False ClaimsAction. The predicate act alleged by the plaintiff against Schlozman is perjury before the United StatesSenate as a RICO conspirator and a member of a criminal enterprise distinct from the US Department ofJustice an entity the complaint details the infiltration of.This court can take notice of public records related to remarkable prescience of the plaintiff’spetition before this court including the newspaper articles attached to the plaintiff’s opposition toSchlozman’s motion for extension of time. See exb. 1 Suggestion in Opposition to Extension.The articles show a grand jury has been convened targeting Schlozman and at the time US AttorneyJohn Wood entered his tardy appearance to defend Schlozman, the US Department of Justice hadestablished probable cause existed to prosecute Schlozman for the conduct the plaintiff’s complaint aversand was already preparing an indictment for the specific perjury averred by the plaintiff. The complaintavers that Schlozman was called to testify because the plaintiff press released that Todd Graves was the108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8404

Ninth US Attorney wrongfully terminated and that Graves was removed because he prosecuted Medicarefraud. Later discovery has revealed that Schlozman and then John Wood had to be installed in the office ofUS Attorney for the Western District of Missouri to obstruct justice in the criminal case against Cox-Healthof Springfield, MO and its executives to prevent the fines described in the plaintiff’s press release thatCarol Lam had obtained against the San Diego Tenet hospital. Again the plaintiff refers the court to hisobjection to extension, exb 2 repeating the plaintiff’s request for a show cause order on how USA JohnWood can now represent Schlozman.The Eight Circuit has endorsed use of the public record in weighing a motion to dismiss:“In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court is "notprecluded in [its] review of the complaint from taking notice of items in the public record." Papasanv. Allain, 478 U.S. 265, 269 n. 1, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Stahl v. U.S. Dep't ofAgric., 327 F.3d 697, 700 (8th Cir.2003) ("The district court may take judicial notice of publicrecords and may thus consider them on a motion to dismiss").”Levy v. Ohl, 477 F.3d 988 (8th Cir., 2007).I. Schlozman’s problematic overviewBesides adopting the RICO co-conspirators use of straw man fraud regarding the averments ofRICO elements, the US Attorney John Wood attempts to deceive this court after being served notice of thefraud’s unlawfulness in the plaintiffs previous suggestion in opposition.“Limone v. Condon, 372 F.3d 39 at 46 (1st Cir., 2004) “Courts must be equally careful, however,not to permit a defendant to hijack the plaintiff's complaint and recharacterize its allegations so as tominimize his or her liability” id. Where the conspirators transcend mere bad lawyering is byknowing beforehand that the false or “Straw Man Fraud” argument will through extrinsic influencebe used by a judge or a judge’s law clerk to create a dismissal that appears sound but deliberatelyconceals the rights violations in the underlying complaint and is actuality a participation in theconduct of the defendants.”Plaintiff’s Consolidated Suggestion in Opposition at page 16. The US Attorney John Wood alsoasks this court to dismiss Schlozman as a party and to sanction the plaintiff against future First Amendmentprotected conduct to seek redress. USA Wood requests this harsh sanction on mere interim orders inongoing litigation. By dismissing Medical Supply’s state claims without prejudice, a determination notopposed or appealed at the time by the defendants, the trial court elected not to make a preclusive finaljudgment: “A final judgment embodying the dismissal would eventually have been entered if the stateclaims had been later resolved by the court.” Avx Corp. v. Cabot Corp., 424 F.3d 28 at pg 32 (Fed. 1st Cir.,208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8405

2005). As a non- final judgment, the Memorandum & Orders previously granting dismissals were mereinterim orders. Id.Like the unlawful conduct of using straw man fraud, USA John Wood as a representative ofSchlozman was on notice that the decisions the overview references were procured through fraud and thatthe continuing use of this extrinsic fraud to procure adverse outcomes against the plaintiff is itself predicateacts or felonies prohibited under RICO and which USA John Wood is now participating in:“2. The defendants are incorrect over the styling of the concurrent Missouri federal caseLipari, et al. v. General Electric, et al. Circuit Court of Jackson County, Missouri, Case No. 0616-CV07421 is now styled Lipari, et al. v. General Electric, et al. Western District of Missouri CaseNo. 07-0849-CV-W-FJG previously the same case or controversy was in this court and styled asMedical Supply Chain, Inc. v. General Electric Company, et al., case no. 03-2324-CM.3. An interim order merely dismissing the original federal claims was fraudulently procured inMedical Supply Chain, Inc. v. General Electric Company, et al., case no. 03-2324-CM by the GEdefendants with the help of US Bank and US Bancorp through their agent Shughart Thomson &Kilroy as revealed in attorney billing records filed with this court and sought in discovery by theplaintiff.4. The federal antitrust claims in Medical Supply Chain, Inc. v. General Electric Company, et al.,case no. 03-2324-CM were dismissed by misrepresenting to this court that the plaintiff had not pleda conspiracy between two legally separate actors when the plaintiff had pled a conspiracy andagreement between the GE defendants and GHX LLC and the US Bank and US Bancorp partnerNeoforma LLC and had cited the controlling legal authority that the plaintiff was not required toname as defendants the other co-conspirators identified in the complaint. See Exb. 1 GE AmendedComplaint.GE agreement with GHX and Novation assigning hospital market share 10 pg. 6, Novationacquiring control over Neoforma and partnering it with its hospital supply competitor GHXcreating a monopoly of 80% of the hospital supply market 15 at pg. 9; GE and “cartel membersincluding Premier, Inc. and Novation, Inc.” conspired to increase hospital supply prices in the NorthAmerican Hospital Supply market injuring US hospitals 36 pg. 19. See Exb. 1 GE AmendedComplaint5. The GE complaint in 03-2324-CM stated at 37 pg. 20 and 21 that the GE defendants in a cartelwith Novation “… preserve their inflated cost structures (the cartel has prevented the annual $23billion dollar savings identified by US Bancorp Piper Jaffray’s 2001 study by maintaining pricesregardless of internal efficiencies) and by preventing the entry of competitors to the relevant market.The defendants willfully acquired and maintained that power by forming the cartel GHX, Inc. to buyan inferior electronic marketplace and exchanging ownership interests with suppliers anddistributors that previously were competitors. The defendants further acted to maintain thatmonopoly by repudiating Medical Supply’s financing and lease buy out agreement with fullknowledge that Medical Supply had been previouslyprevented from entering the hospital supply e-commerce market by other cartel membersof GHX, Inc.” See Exb. 1, 37 pg. 20 and 21 GE Amended Complaint6. The GE complaint in 03-2324-CM describes the conduct of US Bank and US Bancorp breachingthe presently litigated contracts with the plaintiff and stated at 3 pg. 4 that:“GE appeared to be acting independently of Neoforma, when it accepted Medical Supply’s proposalfor a lease buy out and financing, but similarly repudiated a contract for essential facilities,preventing entry into the hospital supply market at great sacrifice when Medical Supply was not in aposition to find an alternative. (Neoforma’s financial partner, US Bancorp Piper Jaffray, hasattested to a threat of filing a Suspicious Activity Report or “SAR,” against Medical Supply underthe USA PATRIOT Act, which would destroy Medical Supply’s ability to process hospital andsupplier purchasing transactions. In an affidavit by Piper Jaffray Vice President and Chief Counselsubmitted in Medical Supply vs. US Bancorp et al No. 02-3443 (10th Cir.), Piper Jaffray argues to308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8406

file a “SAR” at any time it sees fit. Medical Supply is seeking to be protected from Piper Jaffray’sextortion and any malicious use of the USA PATRIOT Act. The October 2002 and June 2003,distinct antitrust injuries to Medical Supply prevented it from beginning its operations each time andrealizing the expectations of its investors and stakeholders.” [ Emphasis added]7. The GE complaint in 03-2324-CM stated at 15 pg. 9“US Bancorp helped Novation acquire control of Neoforma and partner it with GHX, L.L.C.creating a monopoly of over 80% of healthcare e-commerce market). GE repudiated a contract,sacrificing $15 million dollars on June 15th, 2003 to keep Medical Supply from being able tocompete against GHX, L.L.C. and Neoforma. The healthcare market is worth 1.3 trillion dollars. GEacted on the tremendous windfall to preserve its monopoly.” [ Emphasis added]”Exhibit 2 Motion in Opposition to Defendants’ Motion to Compel from the US District of Kansas.See also exhibit 2-1 the Amended Complaint against GE in Kansas Court showing the elements forantitrust were present.The presence of averments required to state the plaintiff’s federal antitrust claims in Kansas DistrictCourt are not contested, nor the US Supreme Court’s determination that not all antitrust co-conspiratorshave to be named as defendants. Only the power of a judge to rule contrary to controlling authority and theexpress language of Congressional statute on the basis of disbelief of the plaintiff at the dismissal stagebefore any discovery is in an ongoing dispute which has now been docketed in the Tenth Circuit Court ofAppeals.A federal criminal complaint was filed in the Kansas City, Missouri office of the FBI by the plaintiffin 2005 over conduct involving extrinsic fraud in the Kansas District Court affecting the GE casereferenced by USA John Wood but USA John Wood as successor to Schlozman has yet to responded to thecomplaint and its accompanying evidence. This is the unfairness addressed in the Restatement (Second) ofJudgments that prevents collateral estoppel after a final judgment on the merits, however the KansasDistrict court has not yet addressed the implication of Avx Corp. v. Cabot Corp., 424 F.3d 28 at pg 32 (Fed.1st Cir., 2005) rendering its orders as interim before the state claims are resolved or even before anydiscovery has taken place.The mere interim status of the prior GE orders is underscored by the fact that the present case beforethis court is the same Article III case or controversy under Avx Corp. v. Cabot Corp., 424 F.3d 28 at pg 32(Fed. 1st Cir., 2005). The Western District of Missouri is not free to use much of the decisions cited byUSA John Wood because their interim nature bars any res judicata effect via claim and issue preclusion.Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752 (8th Cir., 2003) reaffirms the controlling law ofthis jurisdiction that the there must be a final judgment on the merits Liberty Mut. Ins. Co. v. FAG, id. At408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8407

758-760 and changes in facts essential to the judgment renders collateral estoppel inapplicable meritsLiberty Mut. Ins. Co. v. FAG, id. At 71; and of course Schlozman and Seyfarth Shaw are the different orthird parties of § 29 of the Restatement (Second) of Judgments where issue preclusion does not apply. SeeLiberty Mut. Ins. Co. v. FAG at 761-762. A review of this court’s preclusions rulings would be de novo, notthe higher abuse of discretion standard. Liberty Mut. Ins. Co. v. FAG at 757.The plaintiff also incorporates the public record of an analysis showing referenced decisions wereprocured by fraud contained in the plaintiff’s other suggestion in opposition “Plaintiff’s ConsolidatedSuggestion in Opposition” at pages 5-7 (exb 3). The same excerpt gave notice to USA John Wood that theUS Department of Justice has long fostered and protected racketeering conduct by Kansas City area lawfirms in private litigation.USA John Wood attempts to have this court misapply the new emphasis on “plausibility “. USAJohn Wood’s Motion to Dismiss overtly advocates dismissing the plaintiff’s claims because the courtshould not believe Samuel K. Lipari in light of sanctions in other litigation by Medical Supply Chain, Inc.in Kansas District Court. As the head government attorney for this district, USA John Wood is responsiblefor knowing that his argument dishonestly misrepresents the plausibility standard to this court. Regardless,the plaintiff gave notice to the defendants in the plaintiff’s motion for extension and consolidation (exb. 4)that the latest US Supreme Court ruling on the subject would figure in their motions to dismiss andprovided in advance the legal analysis on the subject by courts in wake of the ruling!“5. Since the plaintiff’s amendment in state court, a new set of cases describing the pleadingstandard in the wake of Erickson v. Pardus, No. 06-7317 (U.S. 6/4/2007) (2007) may be relevant tothe court’s resolution of pleading sufficiency issues. The new defendants may seek to address theseadditional authorities and the plaintiff’s recent work in the action against the defendants’ coconspiratorUS Bancorp in Lipari v. US Bancorp et al, Ks. Dist. Court case Case No. 2:07-cv-02146-CM-DJW is available for their counsel’s reference athttp://www.medicalsupplychain.com/pdf/Lipari%20Response%20to%20Second%20Motion%20to%20Dismiss.pdf “Plaintiff’s Motion for Extension and Consolidation, exb 4 5 at page 2.The pleading referenced by 5 of exhibit 4 is attached as exhibit 5 and is a reply to the defendants’hospital supply cartel co-conspirators US Bank and US Bancorp’s motion to dismiss arguing that theplaintiff’s contract claim should be dismissed on “plausibility” because the Kansas District Court shouldnot believe the plaintiff (in light of sanctions obtained against Medical Supply Chain, Inc through theextrinsic fraud of US Bancorp’s agents also detailed in the reply). Pages 12 to 15 of the reply are dedicated508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8408

to the plausibility factor or element raised in Bell Atlantic Corp. v. Twombly, U.S. , 127 S. Ct. 1955, 1965,167 L. Ed. 2d 929 (2007) and the clarification by the Supreme Court in Erickson v. Pardus, No. 06-7317(U.S. 6/4/2007) (2007) admonishing courts that the averments in a complaint at the pleading stage are to betaken as true.Despite being on notice, USA John Wood is using his overview to cause the court to dismiss theplaintiff’s claims against Bradley J. Schlozman out of disbelief and in contradiction to the authority barringsuch a dismissal in Erickson v. Pardus, No. 06-7317 (U.S. 6/4/2007) (2007).The correct standard for dismissal is warranted when “…no relief could be granted under any set offacts that could be proved consistent with the allegations.'" Handeen v. Lemaire, 112 F.3d 1339, 1347 (8thCir.1997). The complaint pleads the material facts that prove the plaintiff’s allegations even though onlyRule 8 applies to the non-fraud averments because the defendants’ cartel has repeatedly obtained dismissalsarguing (falsely for procuring dismissals and sanctions through extrinsic fraud) an element was not pled orthat antitrust conspiracy was not adequately averred. In recognition that now something more than a shortand concise statement is needed to plead antitrust and probably RICO conspiracy after Bell Atlantic Corp.v. Twombly the plaintiff included the material facts. Because the material facts meeting the elements ofRICO are public record and indisputable, just like they were in the plaintiff’s federal antitrust cases, thedefendants must have the judge sanction the plaintiff and tar and feather his pleadings to stop the litigationat any cost before the plaintiff can present the evidence to the finder of fact, much less conduct discovery.Now in Limestone Development v. Village of Lemont, Ill., 520 F.3d 797 at 804 (7th Cir., 2008) theSeventh Circuit with caution has adopted the plaintiff’s prudent belief Twombly is applicable to RICOconspiracy. The plaintiff’s pleading was tempered however by the defendants’ co-conspirators throughHusch, Blackwell and Sanders LLP obtaining sanctions on pleadings for supposedly violating Rule 8 withsupplemental detail previously required for antitrust conspiracy by Kansas District Judge Carlos Murguia.USA John Wood is aware a set of facts could exist that would make Bradley J. Schlozman jointlyand severally liable as a member of a RICO enterprise and as a RICO co-conspirator. Any defense counselfor Schlozman would be responsible for knowing that not only the plaintiff’s RICO allegations againstSchlozman in his capacity as an agent of the Republican National Committee as averred with detail in thiscomplaint but that further misconduct in furtherance of the defendants’ scheme to artificially inflate608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8409

hospital supply costs and overcharge Medicare and Medicaid were committed by Bradley J. Schlozman andthe later US Attorney for the Western District of Missouri, John Wood in obstructing the criminalprosecution of the Novation LLC Hospital CoxHealth in Springfield, Missouri for Medicare fraud. AfterUS Attorney Todd Graves had convened a Grand Jury in this jurisdiction at the displeasure of Karl Rove,US Senator Kit Bond and Governor Matt Blunt, Graves had to be fired by the RICO conspirator Karl Rove.This further set of facts is detailed at length in exb 6 through exb 6-5 the complaint andappendices in Lipari v. Novation et al. a 16 th Circuit Court of Missouri case Case No. 0816-cv-04217 filedsubsequent to the present racketeering complaint. Under the table of contents for section IV entitled “TheAttempt to Interfere With CoxHealth Investigation”, the role and conduct of Bradley J. Schlozman, Scott J.Bloch, USA for Kansas Eric F. Melgran and USA John Wood in the obstruction of justice to further thedefendants’ scheme to overcharge Medicare and Medicaid is described with particularity at pages 20-55.The Novation defendant Lathrop & Gage LC did not seek dismissal of the plaintiff’s claims but is insteadarguing that Missouri’s punitive damages provisions are unconstitutional.Beyond knowing the existence of a set of facts entitling the plaintiff to relief against Schlozmanfor RICO violations, John Wood, the US Attorney for the Western District of Missouri worked in the samelaw office as the defendant and participated in unlawful conduct with Schlozman for the purposes ofadvancing the defendants’ racketeering scheme described in the plaintiff’s present RICO complaint. Theserious bar to Wood representing Schlozman described in the plaintiff’s opposition to extension (see exb 1)is now complicated by USA John Wood denying the plaintiff’s complaint against Schlozman states a claimwhen USA John Wood has personal knowledge of Bradley J. Schlozman’s participation in the defendants’scheme as Wood himself did in the plan to settle criminal charges against the Novation LLC hospital CoxHealth Care Services Of The Ozarks, Inc. and criminal charges against its officials including Robert H.Bezanson. United States v. Cancilla, 725 F.2d 867, 870 (2d Cir.1984) (defendant could notwaive a conflict where, unbeknownst to him, his counsel allegedly engaged in criminal activities similar tothe charges against defendant with a possible co-conspirator of defendant).The plaintiff attempted to alert the Office of the US Attorney for the Western District of Missouriof the impossibility of providing Schlozman a defense and even sent a letter informing Assistant USAttorney Jeffrey P. Ray of Ray’s responsibility to file an ethics complaint against USA John Wood with the708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8410

US Department of Justice Office of Professional Responsibility for Wood’s entry of an appearance asSchlozman’s defense counsel in an action against Schlozman in his private capacity as an agent of theRepublican National Committee, filed after Schlozman was no longer a government official. See exb 7.Letter to Jeffrey P. Ray.When courts have attempted to hold RICO complaints to a now discredited heightened standard ofpleading 1 it has been to avoid the temptation "to dress a garden-variety fraud and deceit case in RICOclothing." Condict v. Condict, 826 F.2d 923, 929 (10th Cir. 1987). The problem the USA John Wood haswith invoking a non law based bias against RICO claims and subjecting the plaintiff to a heightenedstandard is that the claims against the GE defendants had been paired down (albeit through extrinsic fraudin getting the federal antitrust claims dismissed) to state law contract related misconduct. Then thedefendants in concert committed numerous racketeering acts to interfere with even the resolution of theplaintiff’s state claims. The US Supreme Court has rejected the argument judges should intercede toprevent RICO from being used to prevent “over-federalization” of state law prohibited conduct: “Whateverthe merits of petitioners' arguments as a policy matter, we are not at liberty to rewrite RICO to reflecttheir—or our—views of good policy” Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S.6/9/2008) (2008).The present complaint details these acts subsequent to the dismissal of the federal antitrust claimsand USA John Wood knows some of the acts were done and Wood willingly became a latecomer to theconspiracy, fraudulently participating in a malicious investigation of the plaintiff for the purpose ofattempting to fraudulently conceal the unauthorized use of electronic eavesdropping and other measuresused by Schlozman for the RNC for the purpose of interfering in the plaintiff’s civil litigation (and toprocure the sanctions Wood now attempts to use to mislead this court) all of which is detailed in thecomplaint.II. Schlozman’s assertion the complaint does not establish an “enterprise” involving Schlozman forpurposes of civil RICO.1 The latest to resolve this issue is the 11 th Circuit: “We now hold that RICO predicate acts not sounding infraud need not necessarily be pleaded with the particularity required by Fed. R. Civ. P. 9(b).” LiquidationCommission of Banco Intercontinental v. Renta, No. 06-15388 at pg. 32 (11th Cir. 6/19/2008) (11th Cir.,2008).808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8411

The plaintiff loaned Rosalind Wynne the computer to organize her notes on the False Claimsbeing made against Medicare by Blue Cross Blue Shield of Kansas. At every step of the way she wasblocked by the Western District of Missouri Office of the US Attorney. This was just a small part of thenationwide enterprise under the control of the defendants and Novation LLC to loot Medicare. Theplaintiff’s complaint adequately pleads the enterprise to defraud Medicare and Medicaid by overchargingfor hospital supplies and the defendants’ various roles in protecting the ongoing Novation LLC scheme.The alleged enterprises do not include a bankruptcy. The complaint clearly pleads the over archingenterprise. It is a concerted effort by Volunteer Hospital Association, University Healthcare Consortium,Novation LLC, Neoforma, Inc. General Electric and GHX LLC to defraud Medicare and Medicaid.Schlozman’s alleged role, like Seyfarth Shaw’s are mere bit parts. Schlozman’s is in the obstruction of theplaintiff’s efforts to obtain redress and recover his business property required to enter the market forhospital supplies monopolized by the Novation LLC just like Seyfarth Shaw’s is in destroying theplaintiff’s third effort to cover for the escrow accounts withheld by US Bancorp by obtaining Michael W.Lynch’s assistance in arranging underwriters for the investment capital. General Electric knowinglyparticipated in destroying the plaintiff’s second effort to use property he had obtained to enter the marketfor hospital supplies and it appears funded Seyfarth Shaw’s destruction of Lynch.Like Seyfarth Shaw’s misleading arguments Schlozman has incorporated by reference accordingto footnote 4 at page 4 of Schlozman’s motion including co-conspirators must be in privity (improperlyciting state law 2 not, the far higher federal standard excluding privity this court is required to follow andignoring Seyfarth’s conduct is after the cited Kansas District Court decisions) USA John Woodmisrepresents the current state of civil RICO law.This circuit has not resolved whether the association-in-fact enterprise Schlozman is alleged to bepart of requires proof of a common fraudulent purpose at the summary judgment phase. See Craig OutdoorAdvertising, Inc. v. Viacom Outdoor, Inc., No. 06-3341 at pg. 33 (8th Cir. 6/4/2008) (8th Cir., 2008).However the complaint avers Schlozman was a member of an association-in-fact enterprise and that hecommitted perjury before the US Senate in a conspiracy to protect the enterprise from discovery (the2 “Here the res judicata effect of the first judgment, which was entered in federal court and based on federallaw, is governed by federal law. See Canady v. Allstate Ins. Co., 282 F.3d 1005, 1014 (8th Cir. 2002)”Friez v. First American Bank & Trust of Minot, 2003 C08 394 (USCA8, 2003) See also the court’s analysisat 22 precluding privity.908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8412

complaint alleges Schlozman was called to testify because of a surprising chain of events triggered by theplaintiff’s press release about the wrongful firing of USA Todd Graves published by the plaintiff becausethe conspiracy was preventing the plaintiff from obtaining discovery on his contract claims in state court).Among the details in the complaint condemned as surplus by the other defendants are therelationships, structures and hierarchies of both legitimate and illegitimate organizations satisfying thestructure requirements at least at the pleading stage for an enterprise. Bradley J. Schlozman’s enterprise andthe organizations Schlozman has conspired with would not embarrass “The Chicago Vice Lords.” SeeLimestone Development v. Village of Lemont, Ill., 520 F.3d 797 at 804 (7th Cir., 2008) citing United Statesv. Jackson, 207 F.3d 910, 914 (7th Cir.), vacated and remanded for reconsideration on unrelated grounds,531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000). "’[T]he existence of an association-in-fact isoftentimes more readily proven by what it does, rather than by abstract analysis of its structure.’ UnitedStabs v. Coonan, 938 F.2d 1553, 1559 (2d Cir.1991)” Republic of Colombia v. Diageo North America Inc.,531 F.Supp.2d 365 at 422 (E.D.N.Y., 2007). Republic of Colombia happens to be a supply chain RICOcontrol case to artificially inflate retail liquor prices detailed at 423-427 that is not unlike Novation LLC.The complaint describes an organization bigger and with more capacity than that required tocommit the alleged predicate acts. The failure to do this by other plaintiffs creates the case law where anenterprise is insufficiently averred. Thus, the defense counsel’s continual whining over the robustly detailedenterprises and conspiracy in the plaintiff’s complaint. In actuality, this quality of the plaintiff’s complaintis the Eight Circuit’s defining criteria for the sufficiency of an enterprise:“The Eighth Circuit Court of Appeals has defined this characteristic as follows:Th[e] distinct structure might be demonstrated by proof that a group has engaged in a diversepattern of crimes or that it has an organizational pattern or system of authority beyond what wasnecessary to perpetrate the predicate crimes [....] Thus, the "focus of the inquiry" on thischaracteristic is "whether the enterprise encompasses more than what is necessary to committhe predicate RICO offense." [Diamonds Plus, Inc., 960 F.2d at 770].Gunderson, 85 F.Supp.2d at 916 (quoting Reynolds v. Condon, 908 F.Supp. 1494, 1509(N.D.Iowa 1995)).”[Emphasis added]Schuster v. Anderson, 378 F.Supp.2d 1070 at 1096 (N.D. Iowa, 2005).Quite simply, the plaintiff’s complaint alleges an enterprise by the current Eighth Circuit standard,related predicate acts that pose a threat of continuing criminal activity:“To constitute racketeering activity under RICO, the predicate acts must be related and must"amount to or pose a threat of continued criminal activity." H.J. Inc. v. Northwestern Bell Tel. Co.,492 U.S. 229, 239 (1989). "Any recoverable damages occurring by reason of a violation of §1008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8413

1962(c) will flow from the commission of the predicate acts." Sedima, S.P.R.L. v. Imrex Co., 473U.S. 479, 496 (1985).”Dahlgren v. First National Bank of Holdrege, No. 07-1951 (8th Cir. 7/11/2008) (8th Cir., 2008).III. Schlozman’s assertion the complaint does not establish a “pattern” of racketeering activityinvolving Schlozman for purposes of civil RICO.US Attorney John Wood is attempting to deceive this court into overruling Bridge v. PhoenixBond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) (2008) and defying the US Supreme Court by imposinga heightened civil RICO pleading standard to throw out the plaintiff’s complaint on failure to plead a“pattern” despite having fourteen ! predicate acts by members of Schlozman’s enterprise and conspiracyalong with continuing criminal activity by the conspirators in the Novation LLC enterprise to defraudMedicare and Medicaid. The US Attorney John Wood is attempting to defraud the court by expressly usingthe “garden-variety” misconduct argument at page 8 of his motion to dismiss that was specifically rejectedby our nation’s highest court.The complaint alleges a RICO enterprise recognizable in other court rulings:“The Amended Complaint further alleges, although in a somewhat disjointed fashion, eachindividual Defendant's participation in the scheme, and their relationship to each other. Id. at 61-133. Finally, the allegations in the Amended Complaint regarding the interrelationship between theDefendants and the use of the same Mortgage Brokers, Title Companies and Appraisers with respectto numerous loan transaction support a conclusion that the enterprise was an "ongoingorganization," within which the members "function[ed] as a continuing unit." Turkette, 452 U.S. at583, 101 S.Ct. 2524. Drawing all inferences in favor of Superior, the Court finds that Superior'sallegations that the Defendants associated together sufficiently alleges the existence of an"enterprise" under RICO. See Nunes, 609 F.Supp. at 1064.”Superior Bank, F.S.B. v. Tandem Nat. Mortg., Inc., 197 F.Supp.2d 298 at 325 (D. Md., 2000)The complaint adequately alleges that Schlozman was a co-conspirator:“An agreement to participate in a RICO conspiracy may be shown either by proving "an agreementon the overall objective of the conspiracy" or by showing that the defendant agreed to commit twopredicate acts. United States v. Browne, 505 F.3d 1229, 1264 (11th Cir. 2007) (citation omitted).The existence of an agreement, as well as its objective, may be inferred from circumstantialevidence demonstrating "that each defendant must necessarily have known that the others were alsoconspiring to participate in the same enterprise through a pattern of racketeering activity." Id.(citation omitted). But this does not require proof that "each conspirator agreed with every otherconspirator . . . [or] was aware of all the details of the conspiracy." Starrett, 55 F.3d at 1544. Indeed,participation in a conspiracy may be inferred merely from acts which furthered its object. UnitedStates v. Kopituk, 690 F.2d 1289, 1323 (11th Cir. 1982), cert. denied, 463 U.S. 1209 (1983) (citationomitted).”Liquidation Commission of Banco Intercontinental v. Renta, No. 06-15388 at pg. 25 (11th Cir. 6/19/2008)(11th Cir., 2008)1108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8414

US Attorney John Wood instead advocates a wholesale revolution in criminal law by asking thiscourt to make a civil RICO precedent invalidating the low threshold for racketeering conspiracy whichwould result in overhauling Rule 8b of criminal procedure:“It is clear that in conspiracy cases, particularly RICO cases, the mere allegation of conspiracy issufficient to tie defendants closely enough together for Rule 8(b) purposes. A RICO count itself,"virtually by definition, ... constitute[s] a `series of acts or transactions' sufficiently intertwined topermit a joint trial of all defendants." United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert.denied, 464 U.S. 840, 104 S.Ct. 133, 134, 78 L.Ed.2d 128 (1983). Equally, the racketeering actsconstituting the alleged RICO violation are closely enough related to permit a joint trial under Rule8(b).17 The only question is whether Simon's alleged extortion of Ralph Lawrence is part of thesame series of acts or transactions as any of the racketeering acts, so as to sustain joinder under Rule8(b).”U.S. v. Biaggi, 705 F.Supp. 852 (S.D.N.Y., 1988).United States v. Weisman, 624 F.2d 1118, 1129 (2d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 209,66 L.Ed.2d 91 (1980) cautioned against precisely this result when the loose RICO pattern standard iseviscerated to defeat the element against one co-conspirator:“If ... [predicate] acts could properly be considered part of a "pattern of racketeering activity,"we see no reason why they could not similarly constitute part of a "series of acts or transactionsconstituting an offense" within the meaning of Rule 8(b). Indeed, a construction of Rule 8(b) thatrequired a closer relationship between transactions than that necessary to establish a "pattern ofracketeering activity" under RICO might possibly prohibit joinder in circumstances where Congressclearly envisioned a single trial.”US v. Weisman at pg 1129.IV. Schlozman’s assertion the complaint does not establish that Schlozman committed any predicateacts for purposes of civil RICO.The USA Attorney implies what Seyfarth Shaw’s clearly erroneous or intentionally misleadingenterprise overtly states that the plaintiff’s complaint detailing misconduct to disrupt the plaintiff’s effortsat redress do not state predicate acts because extrinsic fraud or extortion to procure court outcomes contraryto controlling law cannot be an enumerated RICO predicate act or cannot be the goal of an enterprise. Theplaintiff has clearly stated the existence of an enterprise, averred that Bradley J. Schlozman and SeyfarthShaw were part of the association in fact enterprise and that they made false pre-litigation statements andthreats (yes Seyfarth Shaw extorted the plaintiff and made false representations in the pre-litigation stage ofthe disputes between the plaintiff and Lipari) as well as committing extortion during the litigation. USAJohn Wood, Bradley J. Schlozman and the lawyers of Seyfarth Shaw should refrain from attempting to beadmitted to the bar in the State of New York where the issues raised by them would not be suffered long:1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8415

“In the instant case, plaintiffs have pled the illegal acts of the defendants which constitute"racketeering activity" and the methods used by them which caused injury to plaintiffs. The allegedpattern of racketeering engaged in by defendants includes: the use of the U.S. mail to fraudulentlyobtain the judgment confirming the Beth Din arbitration award; filing and recording the allegedlyfraudulent deed of January 15, 2004; sending checks issued by defendants in furtherance of theirscheme; filing documents with respect to the eviction of the Ungar family in the Housing Part ofCivil Court, Kings County; colluding among themselves in filing false statements in their answers;and, the use of telephone wires on numerous occasions to call UNGAR to have him induce WEISZto resign as Trustee of the TRUST. Plaintiffs allege that each of the defendants acted in concertthrough an illegal "enterprise" to commit the theft of 1941 51st Street from UNGAR. The definitionof "enterprise," pursuant to 18 USC § 1961 (4), includes a "group of individuals associated infact although not a legal entity." Thus, FELLER, JULIAN and UZIEL are all alleged to bepart of an "enterprise" formed to defraud the TRUST and UNGAR. Therefore, plaintiffsallege that the violations of the RICO statutes by defendants FELLER, JULIAN and UZIELare the proximate cause of plaintiffs' injuries, and are subject to civil penalties of trebledamages plus attorneys' fees. (18 USC § 1964 (c); Anza v. Ideal Steel Supply Corp., 547 US 451,457 [2006]; Sedima, S.P.R.L. v. Imrex Co., Inc., 473 US 479, 497 [1985]; McLaughlin v. AmericanTobacco Co., 522 F3d 215 [2d Cir 2008]).”Becher v. Feller, 2008 NY Slip Op 51060(U) at pg. 10 (N.Y. Sup. Ct. 5/29/2008).Schlozman is alleged to be a RICO conspirator and the conspiracy does not even have to havecommitted a predicate act for Schlozman to be liable: “In re Motel 6 Securities Litigation, 161 F.Supp.2d227 at 237 (S.D.N.Y., 2001). RICO conspiracy does not require the government to prove that anypredicate act was actually committed at all.” [Emphasis added]” Plaintiff’s Consolidated Suggestion atpg. 18.V. Schlozman’s assertion the complaint does not establish that he has standing to assert a civil RICOclaim as to any of the predicate acts allegedly committed by Schlozman.The complaint alleges that the plaintiff was injured in his business by the conduct of theconspirators, and the enterprise Schlozman is alleged to be part of. The complaint specifically chargesBradley J. Schlozman only in his individual capacity as a private citizen and as an agent forThe Republican National Committee, an organization that is not the government. The Supreme Courthanded down an opinion holding that there is no constitutional impediment to allowing a case to proceedwhile the President is in office. See Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636, 137 L.Ed.2d 945(1997). "[i]mmunities are grounded in `the nature of the function performed,'" rather than in the lawful orunlawful motivations of the person performing them. (P. Opp. at 10, quoting Clinton v. Jones, 520 U.S.681, 693, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997)). Schlozman is alleged to commit perjuryin the functionof a testifying witness for the purpose of concealing the RICO enterprise in conspiracy with other agents ofthe RNC. Perjury cannot be a core function of Schlozman’s former office in the USDOJ protected from1308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8416

judicial "intrusion" in the form of private lawsuits for damages under Nixon, 457 U.S. at 754, 102 S.Ct.2690. Also Schlozman was not a prosecutor at the time he falsely testified to the US Senate JudiciaryCommittee so his perjury is not immunized under White v. Murphy, 789 F.2d 614 (8 Cir.1986).USA John Wood seeks to mislead the court by fraudulently stating the complaint alleges predicateacts by Schlozman for decisions whether to prosecute or not prosecute a case. Here again USA John Woodshamelessly commits the same straw man fraud harshly condemned in Limone v. Condon, 372 F.3d 39 at46 (1st Cir., 2004) and which John K. Power of Hush Blackwell Sanders LLP used to procure faciallyerroneous decisions in Kansas District Court, despite notice of the unlawfulness. There is no predicate actin the fourteen charged by the plaintiff for prosecutorial decisions, the eleventh count charges Schlozmanwith the predicate act of perjury to defraud the US Senate where Schlozman’s function was that of witness,not prosecutor or mere USDOJ assistant attorney. The perjuries alleged included misrepresentations overministerial decisions including hiring decisions in violation of the Hatch Act and knowledge of theunlawful firing of USA Todd Graves.CONCLUSIONCongress has determined what the requirements are for seeking redress in RICO. The latest SupremeCourt ruling, (post dating USA John Wood’s authorities) Bridge v. Phoenix Bond & Indemnity Co., No. 07-210 (U.S. 6/9/2008) has cautioned judges not to impose requirements that are not in the RICO statutes. Theplaintiff has met the pleading requirements. Similarly, in authority not addressed by USA John Wood,Erickson v. Pardus, the court has clarified in the wake of Twombly that in the pleading stage beforediscovery has commenced, the court is required to accept the plaintiff’s averments as true.If the USA Attorney’s assertions have any validity it will only be after discovery has been conductedand the action proceeds to summary judgment phase without evidence to support the plaintiff’s complaint.Unfortunately, what the court is witnessing is however USA John Wood acting contrary to law andrepresenting Schlozman, a fellow participant in what has plagued the Western District Court’s ability toresolve the Medical Supply Chain, Inc. v. Neoforma, et al., Case No. 05-0210-CV-W-ODS antitrustlitigation against Novation LLC, now attempting to stop the plaintiff from putting on evidence to the finderof fact.1408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8417

Respectfully submitted,S/ Samuel K. LipariSamuel K. LipariCERTIFICATE OF SERVICEI certify I have sent a copy via email to the undersigned and opposing counsel via ECF on 7/22/08 throughposting an electronic file with the Clerk of the Western District of Missouri Court.John K. PowerLeonard L. WagnerMichael S. HargensHusch Blackwell Sanders, LLP1200 Main StreetSuite 2300Kansas City, MO 64105(816)283-4651Fax: (816)421-0596john.power@husch.comlwagner@kcsouthern.commichael.hargens@husch.comJ. Nick BadgerowSpencer Fane Britt & Browne, LLP9401 Indian Creek ParkwaySuite 700Overland Park, KS 66210(913)327-5134Fax: (913)345-0736nbadgerow@spencerfane.comJeffrey P. RayOffice of the United States Attorney400 E. 9th St.Room 5510Kansas City, MO 64106(816) 426-3130Fax: (816) 426-3165Jeffrey.Ray@usdoj.govS/ Samuel K. Lipari____________________Samuel K. Lipari297 NE BayviewLee's Summit, MO 64064816-365-1306saml@medicalsupplychain.comPro se08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8418

Former MO US Attorney Todd Graves the Ninth Attorney Targeted by Alberto Gonzales7/31/08 8:06 AMJuly 31, 2008 EditionSearch...Welcome to Press Release 365!Login | Register | FAQs | ContactHome Submit Press Release Editors/Journalists Browse By Industry Rewards ProgramFormer MO US Attorney Todd Graves the Ninth Attorney Targeted by Alberto GonzalesApr 09, 2007Media OptionsKANSAS CITY, MO -- Medical Supply Chain founder Samuel Lipari unearthed a US Department of Justice memo revealing theOffice of the Attorney General had targeted not eight but ten US Attorneys including the former attorney for the Western Districtof Missouri, Todd P. Graves. The documents were obtained during Medical Supply Chain's discovery related to the civilantitrust action Medical Supply Chain, Inc. v. Novation LLC, et al, Western District of Missouri case #05-210-CV-W-ODS filedon March 9, 2005.The e-mail dated January 9th, 2006 from Kyle Sampson, chief of staff for Attorney General Alberto Gonzales, to Harriet Miersand William Kelley at the White House, shows the ten U.S. Attorneys that were first selected to voluntarily resign or facetermination. Attorneys that resigned were redacted. Todd P. Graves of Missouri resigned March 24, 2006.The Western District of Missouri US Attorney office under Todd P. Graves had been active in prosecuting Medicare fraud.Medical Supply Chain, Inc.'s civil antitrust suit against Texas based Novation LLC, Volunteer Hospital Association (VHA),University Health System Consortium (UHC) and Neoforma, Inc. alleges the companies formed a cartel and were involved in ascheme to monopolize hospital supplies to defraud Medicare through payments to administrators and kickbacks. The schemeresulted in almost all of Kansas City, Missouri St. Luke's hospital's one hundred million dollar supply budget being purchasedthrough Novation LLC. St. Luke's merged with University of Kansas Hospital after Irene Cumming, CEO of the University ofKansas Hospital was given a job by University Health System Consortium (UHC) on March 19, 2007.The first prosecutor identified as being fired by the Office of the Attorney General was Carol Lam, a U.S. Attorney in SanDiego, California. Carol Lam was personally prosecuting Medicare fraud at the Tenet Healthcare Alvarado hospital whenpolitical pressure was brought on the Justice Department to remove her from office. Carol Lam's prosecution caused the U.S.Department of Health and Human Services threatened to cut Medicare and Medicaid funds to Alvarado Hospital Case #03CR15870 US Dist. Court Southern California.On May 17, 2006, Alvarado Hospital's parent company, Tenet Healthcare, agreed to sell or close the hospital and pay $21million to settle criminal and civil charges.The Medical Supply Chain discovered documents include a December 4, 2006 e-mail from Attorney General Alberto Gonzales'Chief of Staff Kyle Sampson targeting Carol Lam. On December 7, 2006, the Justice Department fired Carol Lam and the sixother U.S. attorneys that refused to resign.Samuel Lipari became concerned that Attorney General Alberto Gonzales was using the firing of appointed US Attorneys andsenior assistant US Attorneys to obstruct justice in investigations involving public corruption on October 18, 2004 when whitecollar crime prosecuting Assistant US Attorneys Leonard Senerote, Michael Uhl and Michael Snipes were fired from the Ft.Worth Texas office of the US Attorney that had issued subpoenas in an ongoing investigation of Novation LLC and otherhospital suppliers for anticompetitive practices. Samuel Lipari was especially concerned over the firings in the Ft. Worth officewhere the chief US Attorney responsible for Medicare fraud, Thelma Louise Quince Colbert had been found dead in herswimming pool on July 20th, 2004 and the Ft. Worth office Senior US Prosecuting Attorney that had signed the subpoenas,Shannon Ross (formerly of Kansas) was found dead in her home on September 13th, 2004. Shannon Ross's investigation ofNovation LLC sparked the New York Times article "Wide U.S. Inquiry Into Purchasing For Health Care" on Saturday August21, 2004.Attorney General Alberto Gonzales used a little known provision of the USA PATRIOT Act to replace Todd P. Graves withBradley Schlozman. Bradley Schlozman failed to prosecute public corruption related to the Medical Supply Chain litigation andfailed to enforce civil rights laws related to the Novation LLC defendants success in getting Medical Supply Chain's counselBret D. Landrith disbarred. Samuel Lipari raised these concerns before the US Court of Appeals for the Eight Circuit. OnJanuary 16, 2007 Attorney General Gonzales tried to quell criticism of the mass US Attorney firings and the misuse of the USAPATRIOT Act by announcing John Wood would be taking Schlozman's place in Kansas City.Samuel Lipari is the founder of Medical Supply Chain and is currently launching a consumer oriented discount medical supplybusiness based in Lee's Summit, Missouri: http://MedicalSupplyLine.com Mr. Lipari was forced to represent himself in thelawsuit.PDF VersionEmail to a FriendPrinter Friendly VersionContact InfoMedical Supply ChainSamuel Lipari816-365-1306Send to BlogosphereStumble It!Submit to Digg!List on NewsvineAdd to RedditTechnoratiSend to del.icio.usWindows LiveYahoo!Press Release ServicesSubmit a Press ReleaseHow to Write a Press ReleasePress Release DistributionFAQs and HelpPR Distribution PlansRSS XML FeedsDisclaimerIf you have any questions regardinginformation in this press release, pleasecontact the person listed in the contactmodule of this page. Please do notattempt to contact Press Release 365.We are unable to assist you with anyinformation regarding this release. PressRelease 365 disclaims any contentcontained in this press release. Pleasesee our complete Terms of Usedisclaimer for more information.About Medical Supply Chain: Medical Supply Chain (MSC) is a worldwide provider of web-based supply chain collaborationsolutions with an electronic marketplace serving health care communities and their trading partners. Medical Supply Chain wasfounded in May of 2000 with a mission to deliver enabling supply chain technology in health care. To learn more visit:http://www.MedicalSupplyChain.com/news.htm.###Keywords: HEALTHCARE, FINANCIAL, INSURANCE, REPUBLICAN, DEMOCRATE, US CONGR Government » Federalhttp://www.pressrelease365.com/pr/government/federal/graves-attorney-general-gonzales-1275.htmPage 1 of 2Exb 308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8419

Former MO US Attorney Todd Graves the Ninth Attorney Targeted by Alberto Gonzales7/31/08 8:06 AMClick below...WelcomeNewsIndustryProductsWeb ServicesCommunicationRegisterSign InCONGRESSIONAL HEARINGSHearing Before the Committee on the Judiciary Subcommittee on Antitrust, Competition Policyand Consumer Rights of the United States Senate on "Hospital Group Purchasing:Are the Industry’s Reforms Sufficient to Ensure Competition?"March 15, 2006Hearing Before the Committee on the Judiciary Subcommittee on Antitrust,Competition Policy and Consumer Rights of the United States Senate on "Hospital GroupPurchasing: How to Maintain Innovation and Cost Savings"September 14, 2004Hearing Before the Committee on the Judiciary United States Senate Subcommittee onAntitrust,Competition Policy and Consumer Rights on "Hospital Group Purchasing:Has the Market Become More Open to Competition?http://www.pressrelease365.com/pr/government/federal/graves-attorney-general-gonzales-1275.htmPage 2 of 208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8420

Attorney General Alberto Gonzales Sandbagged Novation LLC Prosecution7/31/08 8:05 AMJuly 31, 2008 EditionSearch...Welcome to Press Release 365!Login | Register | FAQs | ContactHome Submit Press Release Editors/Journalists Browse By Industry Rewards ProgramAttorney General Alberto Gonzales Sandbagged Novation LLC ProsecutionApr 16, 2007Media OptionsKANSAS CITY, MO -- Novation LLC a hospital supplier in Irving, Texas admitted in a Tenth Circuit Court of Appeals filingdated April 9th, 2007 that it was identified as a co-conspirator in a 2002 scheme to use US Bancorp’s trust division to preventMedical Supply Chain from entering the market for hospital supplies by withholding escrow accounts and misusing the USAPATRIOT act as a pretext.On July 30, 2006 the British newspaper the Daily Mail reported that Novation was under a bribes probe by the US Departmentof Justice stating Novation; “…is being investigated by American prosecutors following accusations that it has accepted huge'bribes' from medical manufacturers.”On July 31, 2006 the London Times reported the existence of the US Department of Justice investigation of Novation’sconduct as a hospital group purchasing organization or “GPO” and quoted Professor Prakash Sethi, president of theInternational Center for Corporate Accountability at Baruch College in New York who stated “My most conservative estimatessuggest that GPOs extract extra profits of $5 billion (£2.6 billion) to $6 billion which legitimately belong to their principal clients,the hospitals.”After Alberto Gonzales became Attorney General on February 3, 2005, the investigation of Novation was suppressed eventhough insider Novation executives came forward to the US Department of Justice with evidence of laundering hospital fundsthrough the publicly traded electronic hospital supply marketplace Neoforma, Inc. that was then controlled by Novation,Volunteer Hospital Association (VHA), and University Health System Consortium (UHC) and is now owned by the electronichospital supply marketplace GHX, LLC.In an April 18, 2005 affidavit, Medical Supply Chain founder Samuel Lipari complained about FBI misuse of USA PATRIOT Actsurveillance powers. The affidavit described interception of electronic communications and searches by law enforcementofficials being used to interfere with and obstruct Lipari’s civil prosecution of the Novation defendants in Medical Supply Chain,Inc., v. Novation LLC et al, US District Court for the W.D. of Missouri No. 05-0210-CV-W-ODSAttorney General Alberto Gonzales confirmed the existence of the program for warrantless surveillance, first reported in TheNew York Times, on December 19, 2005. However on January 25, 2006 Gonzales wrote that “there has not been a singleverified abuse of any of the provisions” of the USA PATRIOT Act.Samuel Lipari again complained on October 12, 2006 in the US Court of Appeals for the Eight Circuit in St. Louis, Missouri thatUS District Attorney Bradley J. Schlozman failed to investigate evidence of public corruption brought to his office and permittedobstruction of justice to continue despite the injuries to Samuel Lipari, his family and associates.On January 16, 2007 Attorney General Gonzales responded to criticism of his misuse of the USA PATRIOT Act by announcingJohn Wood would be taking Bradley Schlozman's place in Kansas City two days before he gave his previous testimony toCongress.On March 22, 2007, Attorney General Alberto Gonzales met in St. Louis with U.S. Attorneys Catherine L. Hanaway andBradley J. Schlozman of Missouri districts to conduct an undisclosed discussion related to the conduct of US Attorney BradleyJ. Schlozman.Disappointed with the continuing US Department of Justice cover up, on April 9, 2007 Samuel Lipari publicly disclosed MedicalSupply discovery revealing the US Attorneys targeted by Karl Rove and Attorney General Alberto Gonzales that resulted inTodd Graves being replaced by Bradley J. Schlozman a year earlier. John Wood was finally sworn in as the US Attorney forthe Western District of Missouri on April 11, 2007.About Medical Supply Chain: Medical Supply Chain (MSC) is a worldwide provider of web-based supply chain collaborationsolutions with an electronic marketplace serving health care communities and their trading partners. Medical Supply Chain wasfounded in May of 2000 with a mission to deliver enabling supply chain technology in health care. To learn more visit:http://www.MedicalSupplyChain.com/news.htm.PDF VersionEmail to a FriendPrinter Friendly VersionContact InfoMedical Supply ChainSamuel Lipari816-365-1306Send to BlogosphereStumble It!Submit to Digg!List on NewsvineAdd to RedditTechnoratiSend to del.icio.usWindows LiveYahoo!Press Release ServicesSubmit a Press ReleaseHow to Write a Press ReleasePress Release DistributionFAQs and HelpPR Distribution PlansRSS XML FeedsDisclaimerIf you have any questions regardinginformation in this press release, pleasecontact the person listed in the contactmodule of this page. Please do notattempt to contact Press Release 365.We are unable to assist you with anyinformation regarding this release. PressRelease 365 disclaims any contentcontained in this press release. Pleasesee our complete Terms of Usedisclaimer for more information.###Keywords: HEALTHCARE, FINANCIAL, INSURANCE, REPUBLICAN, DEMOCRAT, US CONGR Government » Federalhttp://www.pressrelease365.com/pr/government/federal/alberto-gonzales-novation-prosecution-1293.htmPage 1 of 2Exb 408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8421

Attorney General Alberto Gonzales Sandbagged Novation LLC Prosecution7/31/08 8:05 AMClick below...WelcomeNewsIndustryProductsWeb ServicesCommunicationRegisterSign InCONGRESSIONAL HEARINGSHearing Before the Committee on the Judiciary Subcommittee on Antitrust, Competition Policyand Consumer Rights of the United States Senate on "Hospital Group Purchasing:Are the Industry’s Reforms Sufficient to Ensure Competition?"March 15, 2006Hearing Before the Committee on the Judiciary Subcommittee on Antitrust,Competition Policy and Consumer Rights of the United States Senate on "Hospital GroupPurchasing: How to Maintain Innovation and Cost Savings"September 14, 2004Hearing Before the Committee on the Judiciary United States Senate Subcommittee onAntitrust,Competition Policy and Consumer Rights on "Hospital Group Purchasing:Has the Market Become More Open to Competition?http://www.pressrelease365.com/pr/government/federal/alberto-gonzales-novation-prosecution-1293.htmPage 2 of 208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8422

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, )) CIVIL ACTIONv. )) No. 05-2299-CMNEOFORMA, INC., et al., ))Defendants. )SHOW CAUSE ORDEROn April 8, 2008, plaintiff filed a Motion to Alter or Amend Judgment and Answer to Ordto Show Cause (Doc. 128). Defendants have failed to timely submit a response to the pending motioRule 7.4 of the Rules of Practice provides that the “failure to file a brief or response within the timspecified within [Rules 6.1 and 7.1(c)] shall constitute the waiver of the right thereafter to file sucbrief or response, except upon a showing of excusable neglect.” D. Kan R.7.4.Defendants are therefore directed to show cause, in writing, on or before May 23, 2008, whplaintiff's motion (Doc. 128) should not be granted. Defendants are further directed to file a responsto plaintiff’s motion on or before May 27, 2008. Where defendants fail to respond to this order, thcourt will consider plaintiff’s motion (Doc. 128 ) without the benefit of defendants' response, as sout in Rule 7.4.IT IS SO ORDERED.Dated this 16th day of May 2008, at Kansas City, Kansas.s/ Carlos MurguiaCARLOS MURGUIAUnited States District JudgeExb 508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8423

05/31/2006 DocketEntry:Motion DeniedText: ORDER DENYING DEFENDANTS GE'S MOTION TO DISMISSUPON FULL CONSIDERATION, the Court, having reviewedGeneral Electric Company, General Electric Capital BusinessAsset Funding Corporation and GE Transportation System'sGlobal Signaling, LLC's Motion to Dismiss filed on May 4, 2006 byDefendants and being fully advised in the premises, herebyDENIES the motion. WHEREFORE, IT IS ORDERED, GeneralElectric Company, General Electric Capital Business AssetFunding Corporation and GE Transportation System's GlobalSignaling, LLC's Motion to Dismiss is DENIED. Dated: MAY 25,2006 ____________________________________ W STEPHENNIXON, JudgeAssociated Docket Entries: 05/04/2006 - Motion to DismissDocketEntry:Gen Electric Capital Business Asset Funding Corp and GE TranspSystems Global signaling LLC.Motion Granted/SustainedText: ORDER GRANTING HEARTLAND FINANCIAL'S MOTION TODISMISS UPON FULL CONSIDERATION, the Court, havingreviewed Heartland Financial's Motion to Dismiss filed on May 4,2006 by Defendant and being fully advised in the premises, herebyGRANTS the motion. WHEREFORE, IT IS ORDERED, HeartlandFinancial's Motion to Dismiss is GRANTED for Plaintiff's failure tostate a claim upon which relief can be granted. Dated: MAY 25,2006 ____________________________________ W STEPHENNIXON, JudgeAssociated Docket Entries: 05/04/2006 - Motion to DismissExb 608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8424

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASSAMUEL K. LIPARI, ))Plaintiff, )) CIVIL ACTIONv. )) No. 07-2146-CM)US BANCORP NA and )US BANK NA, ))Defendants. ))MEMORANDUM AND ORDERPlaintiff Samuel K. Lipari brings this action against defendants US Bancorp NA andUS Bank NA. This matter is before the court on defendants’ Motion to Dismiss Plaintiff’sComplaint (Doc. 22).I. Factual BackgroundPlaintiff filed the instant action in Jackson County Circuit Court on November 28, 2006(Jackson County Case No. 0616-CV-32307). On December 13, 2006, defendants removed theaction to the United States District Court for the Western District of Missouri, Western Division, onthe basis of diversity. On April 11, 2007, the United States District Court for the Western District ofMissouri transferred the case to this court. Plaintiff brings the following five claims againstdefendants, each under Missouri state law: (1) breach of contract; (2) fraud; (3) trade secretmisappropriation; (4) breach of fiduciary duty; and (5) prima facie tort.II.StandingDefendant argues that plaintiff lacks standing to bring claims on behalf of Medical SupplyChain, Inc. (“Medical Supply”) because under Missouri law (1) a corporation continues business inExb 708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8425

its name in order to wind up its business affairs; (2) dissolution does not transfer the corporation’sproperty; and (3) the claims alleged in the complaint are not assigned to plaintiff merely by reason ofthe dissolution. Plaintiff argues that he has standing because Medical Supply assigned him all of itsinterests and rights, including the claims in this lawsuit.As the party bringing this lawsuit, plaintiff has the burden to establish that he has standing tobring these claims. Standing “must be supported in the same way as any other matter on which theplaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at thesuccessive stages of litigation.” Quik Payday, Inc. v. Stork, No. 06-2203-JWL, 2006 WL 2792317,at *2 (D. Kan. 2006) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)) (discussingthe elements of Article III standing). At the motion to dismiss stage, general factual allegations maysuffice, “for on a motion to dismiss we presume that general allegations embrace those specific factsthat are necessary to support the claim.” Thompson v. Jiffy Lube Int’l., Inc., 505 F. Supp. 2d 907,923 (D. Kan. 2007). On a motion to dismiss, the court must accept as true all material allegations ofthe complaint, and must construe the complaint in favor of plaintiff. Ward v. Utah, 321 F.3d 1263,1266 (10 th Cir. 2003) (“‘For purposes of ruling on a motion to dismiss for want of standing, both thetrial and reviewing courts must accept as true all material allegations of the complaint, and mustconstrue the complaint in favor of the complaining party.’”) (quoting Warth v. Seldin, 422 U.S. 490(1975)).Under Missouri law, a shareholder does not have standing to sue in his individual capacityfor damages to the corporation. Hutchings v. Manchester Life and Cas. Mgmt. Corp.,896 F. Supp. 946, 947 (E.D. Mo. 1995). Corporate dissolution does not transfer standing to ashareholder. A dissolved corporation’s existence continues in order for the corporation to wind up-2-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8426

its business affairs. Mo. Rev. Stat. § 351.476. Dissolution does not transfer title to the corporation’sproperty or prevent commencement of a proceeding by or against the corporation in its corporatename. Id. A dissolved corporation retains the legal claims it had prior to dissolution. Even afterdissolution, the corporation, not its shareholders or trustees, is the proper party to sue or be sued. Cf.Mabin Constr. Co., Inc. v. Historic Constructors, Inc., 851 S.W.2d 98, 103 (Mo. Ct. App. 1993)(recognizing that Mo. Rev. Stat. § 351.476 precludes statutory trustees from being brought into suitsagainst an administratively dissolved corporation). Thus, plaintiff cannot bring Medical Supply’sclaims as a shareholder.Missouri law does, however, allow a dissolved corporation to assign its claims to a thirdparty.See, e.g., Smith v. Taylor-Morley, Inc., 929 S.W.2d 918 (Mo. Ct. App. 1996) (upholdingdissolved corporation’s written assignment of rights to a purchase contract). The assignee may sueto recover damages for the dissolved corporation’s claims. Id. (holding assignee of dissolvedcorporation’s rights under a purchase contract could sue for injuries to dissolved corporation forbreach of the purchase contract). Here, plaintiff alleges that he is the assignee of all rights andinterests of Medical Supply, including the claims in this lawsuit. Accepting as true all materialallegations of the complaint and construing the complaint in favor of plaintiff, the court finds thatplaintiff has met his burden at this stage of the proceeding. Defendant’s motion is denied withrespect to standing.III.Res JudicataAs Medical Supply’s assignee, plaintiff has no greater rights than Medical Supply had at thetime of the assignment. Citibank (S.D.), N.A. v. Mincks, 135 S.W.3d 545, 556–57 (Mo. Ct. App.2004). And any defense valid against Medical Supply is valid against plaintiff. Id. Defendantargues that res judicata bars plaintiff’s claims because Medical Supply raised or could have raised-3-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8427

these claims in Medical Supply Chain, Inc. v. U.S. Bancorp, NA, et al., Case No. 02-2539-CM(Medical Supply I) and Medical Supply Chain, Inc. v. Neoforma, Inc., et al., Case No. 05-2299-CM(Medical Supply II).Res judicata “‘prohibits a party from asserting any matter that might have been asserted inthe previous cause of action, even if it was not actually asserted.’” Prospero Assocs. v. BurroughsCorp., 714 F.2d 1022, 1025 (10 th Cir. 1983) (citation omitted) (emphasis supplied); see also Wedowv. City of Kan. City, Mo., 442 F.3d 661, 669 (8 th Cir. 2006). 1 For the doctrine to apply, threeconditions must be satisfied: (1) the parties must be identical or in privity; (2) the suit must be basedon the same cause of action; and (3) a final judgment on the merits must have been made in the prioraction. Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10 th Cir. 1999) (citing King v. Union Oil Co. ofCal., 117 F.3d 443, 445 (10 th Cir. 1997)); Baker v. Chisom, 501 F.3d 920, 925 (8 th Cir. 2007).The defendants in this case were defendants in Medical Supply I and Medical Supply II.And, as Medical Supply’s assignee, plaintiff is in privity with Medical Supply. The claims in thiscase arise from the same operative facts as the claims raised in Medical Supply I and II and are basedon the same cause of action as the claims the previous cases. See, e.g., Landscape Props., Inc. v.Whisenhunt, 127 F.3d 678, 683 (8 th Cir. 1997) (recognizing “that if a case a rises out of the samenucleus of operative fact, or is based upon the same factual predicate, as a former action, that thetwo cases are really the same “claim” or “cause of action” for purposes of res judicata.”). The courtreached final judgments on the federal claims in both Medical Supply I and II.1The parties cite to both Tenth and Eighth Circuit law to support their res judicataarguments, and neither cites to Missouri state law. At this point, the court need not determine whichlaw is applicable because the principals of res judicata are identical under each jurisdiction. SeeBannum, Inc. v. City of St. Louis, 195 S.W.3d 541, 544 (Mo. Ct. App. 2006) (“Missouri law tracksthe Eighth Circuit in defining the prerequisites for res judicata.”). But the court suggests that theparties properly brief the issue of which law applies on issues raised in the future.-4-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8428

Under the doctrine of res judicata, plaintiff is prohibited from asserting claims that MedicalSupply could have raised in Medical Supply I or II. Because the state law claims alleged in this caseare based on the same cause of action as the claims in the prior lawsuits, Medical Supply could havebrought these state law claims in either of its previous lawsuits. Res judicata bars the claims thatcould have been, but were not, asserted in Medical Supply I or II. See, e.g., Jones v. City of Kan.City, Mo., 143 Fed. App’x 735 (8 th Cir. 2005) (affirming that res judicata bars claims that arise out ofthe same nucleus of operative facts as those in a prior lawsuit and that could have been raised in theprior lawsuit).But res judicata does not bar the state law claims that were raised in Medical Supply I or II.In both cases, the court declined supplemental jurisdiction over the state law claims and dismissedthe state law claims without prejudice. A dismissal without prejudice “is a dismissal that does not‘operat[e] as an adjudication upon the merits,’ Rule 41(a)(1), and thus does not have a res judicataeffect.” Santana v. City of Tulsa, 359 F.3d 1241, 1246, n.5 (10 th Cir. 2004) (quoting Cooter & Gellv. Hartmarx Corp., 496 U.S. 384, 396 (1990)). Thus, there has been no final judgment on the meritsof the state law claims raised in Medical Supply I and II, and those claims are not barred by thedoctrine of res judicata. 2The record before the court does not clearly delineate which of plaintiff’s claims were raisedin the previous lawsuits and which are being raised for the first time. Plaintiff is ordered to file abrief within ten days of this order setting forth which of its state law claims were dismissed without2 The court recognizes that “denial of leave to amend constitutes res judicata on the merits ofthe claims which were the subject of the proposed amended pleading.” Landscape Props., Inc., 127F.3d at 683. But here, plaintiff’s motion to amend in Medical Supply II was stricken from therecord, not denied on the merits of the proposed amendment. The court finds that the order strikingthe motion to amend does not prevent plaintiff from raising the state law claims because thoseclaims were specifically dismissed without prejudice.-5-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8429

prejudice in Medical Supply I, which were dismissed without prejudice in Medical Supply II, andwhich are being raised for the first time. Defendant shall file a response within ten days of the dateplaintiff’s brief is filed.The remainder of defendant’s motion is denied without prejudice. Defendants may refiletheir motion to dismiss once the record clearly identifies which claims are barred by res judicata andwhich remain pending.IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss Plaintiff’s Complaint(Doc. 22) is granted in part, denied in part, and denied without prejudice in part.Dated this 16 th day of November 2007, at Kansas City, Kansas.s/ Carlos MurguiaCARLOS MURGUIAUnited States District Judge-6-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8430

IN THE STATE OF MISSOURIJACKSON COUNTY DISTRICT COURTAT INDEPENDENCE, MISSOURISAMUEL K. LIPARI )(Assignee of Dissolved )Medical Supply Chain, Inc.) )Plaintiff )) Case No. 0816-cv-04217vs. ))Novation,LLC et al. , )Defendants )AFFIDAVIT OF PLAINTIFFI Samuel K. Lipari, residing at 297 NE Bayview, in the City of Lee’s Summit and in the County ofJackson of the State of Missouri was the chief executive officer of the now dissolved Missouri corporationMedical Supply Chain, Inc. My company sued the individual persons Robert J. Zollars, Curt Nonomaque,Robert J. Baker, Jerry A. Grundhoffer, Andrew Cecere, and Andrew S. Duff in the United States Court forthe Western District of Missouri action Medical Supply Chain, Inc. v. Novation LLC. et al, Case No. 05-0210-CV-W-ODS. The defendants Robert J. Zollars, Curt Nonomaque, and Robert J. Baker initiallyopposed jurisdiction on the basis that long arm jurisdiction was unconstitutionally applied but thenvoluntarily submitted to jurisdiction in Missouri (see affidavit exb 1, filed on behalf of individualdefendants as stated in signature block of John K. Power on page 15) for the purpose of having the law suittransferred to the US District Court of Kansas as did the individual defendants Jerry A. Grundhoffer,Andrew Cecere, and Andrew S. Duff.The US District Court of Kansas where the co-defendants US Bank and US Bancorp NA and thehospital cartel member the General Electric Corporation had previously obtained judgments contradictingcontrolling law and the court appeared hostile to the plaintiff.The action was transferred to the US District Court for the District of Kansas where it was styledMedical Supply Chain, Inc. v. Novation LLC. et al Case No. 2:05-cv-2299-KHV-GLR. The defendantsRobert J. Zollars, Curt Nonomaque, and Robert J. Baker voluntarily accepted the outcome their invocationof jurisdiction in Missouri before Hon. Judge Otrie Smith had produced. The defendants Robert J. Zollars,Curt Nonomaque, and Robert J. Baker renewed their motion to dismiss but surrendered their objections tojurisdiction. See Affidavit Exb 2 Renewed Motion to Dismiss. Jurisdiction over the defendants Robert J.1 of 2Exb 808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8431

Zollars, Curt Nonomaque, and Robert J. Baker was in the matter obtained through service of process fromthe State of Missouri in the form of a summons issued by the Clerk of the US District Court for the WesternDistrict of Missouri.The action is now in appeal before the US Circuit Court of Appeals for the Tenth Circuit. Thedefendants Robert J. Zollars, Curt Nonomaque, and Robert J. Baker have not cross appealed or otherwisechallenged in personam jurisdiction in the continuation of the litigation.I hereby swear certifying that the above stated facts and attachments are true to the best of myknowledge and recollection.Signature _____________________________Date______________________________________NotarySubscribed and sworn before me onDate_______________________My commission expires:Date_______________________2 of 208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8432

Case 4:05-cv-00210-ODS Document 27 Filed 04/04/2005 Page 1 of 20!!"#$%&#'"!$&(#)$*$&)#(!)$+!,$#,-'+$#.-+#$%&#/&)$&+"#(!)$+!,$#-.#0!))-'+!#0&(!,*1#)'2213#,%*!"4#!",54# # 6## # # # # # # 6## # # # 2789:;9

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Case 4:05-cv-00210-ODS Document 27 Filed 04/04/2005 Page 4 of 20!M1'.)-8!9'-2!32!:%3)**8!9'-2H!!>"&!P(>U!$"">!M$" .N !/X-(!%""%O ((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((( '!M%C()!32!E.2!M%&4(!$C4*65)'R(!U!L>"!M>U!/X-(!$KK?O(((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((((( &!B4-)!32!

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Case 2:05-cv-02299-KHV-GLR Document 34 Filed 08/09/2005 Page 1 of 6IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, ))v. ) Case No. 2:05-cv-2299-KHV-GLR)NOVATION, LLC, et al., ))Defendants. )NOVATION, LLC, VHA INC.,UNIVERSITY HEALTHSYSTEM CONSORTIUMROBERT BAKER AND CURT NONOMAQUE’SRENEWED MOTION TO DISMISS COMPLAINTFOR FAILURE TO STATE A CLAIMTO THE HONORABLE JUDGE OF THIS COURT:Defendants Novation, LLC (“Novation”), VHA Inc. (“VHA”), University HealthsystemConsortium (“UHC”), Robert Baker, and Curt Nonomaque (collectively, “Defendants”)respectfully request that the Court dismiss Plaintiff’s Complaint with prejudice pursuant toRules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure.INTRODUCTION1. In this lawsuit, Plaintiff is asserting claims that have already been dismissed twiceby this Court in two prior lawsuits presided over by Judge Murguia. Plaintiff tried to avoid athird dismissal by crossing state lines and bringing these claims in the U.S. District Court for theWestern District of Missouri. When Defendants moved for transfer of the case to this Court,Plaintiff contended that transfer was improper because Kansas was a lawless state and that theKansas judiciary was complicit in a scheme to harass and intimidate witnesses. Rejecting thatgroundless argument and Plaintiff’s attempts to forum shop based on a dissatisfaction with theExb 8-208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8453

Case 2:05-cv-02299-KHV-GLR Document 34 Filed 08/09/2005 Page 2 of 6outcome of the prior cases, the U.S. District Court of Missouri has transferred this case back tothis Court.2. During the period of time this case was pending in the U.S. District Court for theWestern District of Missouri, Defendants sought transfer of this case to this Court and, in thealternative, a dismissal of the complaint for failure to state a claim. Because the U.S. DistrictCourt for the Western District of Missouri granted Defendants’ request for transfer, it did notreach the Motion to Dismiss. Thus, Defendants now file this renewed Motion to Dismiss forFailure to State a Claim.3. Plaintiff’s Complaint seeks several billions of dollars in damages arising fromPlaintiff’s inability to lease desired office space, to obtain financing, and to establish escrowaccounts allegedly necessary to enter into the market to provide hospital supplies in e-commerce.Plaintiff asserts that these harms flowed from a vast conspiracy involving, inter alia, variousentities and individuals in the nationwide hospital supply market, venture capital firms, a bank, alaw firm, the owner of an office building, and a magistrate of the U.S. District Court for Kansas.PRIOR ACTIONS4. This is not the first time Plaintiff has raised these claims. Indeed, this lawsuit issubstantially similar to claims asserted in two prior suits, both of which were dismissed on thepleadings. Plaintiff originally filed a lawsuit against many of these same defendants in theUnited States District Court for the District of Kansas in 2002, styled Medical Supply Chain, Inc.v. US Bancorp, NA, et al., Civil Action No. 02-2539-CM (Judge Carlos Murguia) (the “USBancorp Case”). In that case, Plaintiff asserted virtually identical claims arising out of the sametransactions and same set of operative facts as are alleged here even though Plaintiff was warned208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8454

Case 2:05-cv-02299-KHV-GLR Document 34 Filed 08/09/2005 Page 3 of 6by the District Court in its order dismissing the complaint in that case “to take greater care inensuring that the claims he brings on his clients’ behalf are supported by the law and the facts.”See Memorandum and Order, at p. 11 (attached as Exhibit 1). Indeed, the district judge noted,with regard to Plaintiff’s USA Patriot Act violations (which are also made here) that “plaintiff’sallegation [is] so completely divorced from rational thought that the court will refrain fromfurther comment . . . .” See Exhibit 1 at pp. 14-15. The Tenth Circuit affirmed the DistrictCourt’s dismissal. Because the Tenth Circuit concluded that Plaintiff’s appeal was not supportedby the law or the facts, it ordered Plaintiff and its counsel to show cause why it should not besanctioned for filing a frivolous appeal. Medical Supply Chain, Inc. v. US Bancorp, NA, 2004WL 2504653, *1 (10th Cir. 2004).5. In June of 2003, Plaintiff filed suit in the District Court of Kansas against many ofthe GE-related parties alleged to be unnamed co-conspirators in this action. That case was styledMedical Supply Chain, Inc. v. General Electric Company, et al., Civil Action No. 03-2324-CM(Judge Carlos Murguia) (the “GE case”). That case also involved many of the same factual andlegal allegations as alleged here. In the District Court’s order dismissing that suit, the Courtnoted that the federal antitrust claims failed “at the most fundamental level.” See Memorandumand Order, at p. 5 (attached as Exhibit 2). The 10th Circuit recently affirmed the dismissal ofthat complaint and held that Rule 11 sanctions against Plaintiff were appropriate because theComplaint alleged frivolous claims against an individual officer of GE without any allegationsthat the officer had any connection to Plaintiff’s injury. See Medical Supply Chain v. GeneralElec.Co., et al., Case No. 04-3075 (10th Cir. July 26, 2005) (attached as Exhibit 3).308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8455

Case 2:05-cv-02299-KHV-GLR Document 34 Filed 08/09/2005 Page 4 of 6GROUNDS FOR DISMISSAL6. Undeterred by the Tenth Circuit’s and the Kansas District Court’s admonitionsregarding Plaintiff’s attorney’s Rule 11 responsibilities, that same attorney has now filed thisComplaint which is substantially similar to his defective actions in the US Bancorp and GEcases. The Complaint is incoherent, e.g. Complaint at p. 114 (seeking an injunction during the“pungency [sic] of this action” and damages for Plaintiff’s stakeholders including the town ofBlue Springs, Missouri and “the injury of the 2000 hospitals loosing [sic] money due to highsupply costs”), and irrational, e.g. Complaint at 89 (blaming the deaths of “at least 41,206Americans” on the increasing health care costs due to the Defendants’ actions in foreclosingPlaintiff’s entry into the market).7. What is clear upon a reading of the Complaint, however, is that it states no legallyviable claim. In fact, the new Complaint repairs none of the fundamental legal defects andpleading insufficiencies of the prior cases, and adds some new ones. Moreover, many claims arenow foreclosed by collateral estoppel grounds. As is explained further in the accompanyingSuggestions in Support of Novation, LLC, VHA, Inc., and University HealthsystemConsortium’s Motion To Dismiss Complaint For Failure To State A Claim, Plaintiff’s claimsshould be dismissed by this Court with prejudice on the following grounds:! Plaintiff’s federal and state antitrust claims should be dismissed because: (1)Plaintiff is collaterally estopped from asserting such claims; (2) Plaintiff whollyfails to allege concerted action; (3) Plaintiff fails to sufficiently allege monopolypower or the elements of attempt to monopolize; (4) Plaintiff fails to adequatelyallege harm to competition, rather than merely harm to Plaintiff, a single408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8456

Case 2:05-cv-02299-KHV-GLR Document 34 Filed 08/09/2005 Page 5 of 6competitor; (5) Plaintiff lacks standing to assert the claims; and, (6) Plaintiff failsto plead any of the required elements for a claim for interlocking directors.! Plaintiff fails to plead the existence of a misleading statement or omission madeby Defendants to Plaintiff; therefore, Plaintiff’s fraud claim should be dismissed.! Plaintiff fails to plead that Defendants knew about or intentionally interfered withthe contracts with which Plaintiff claims Defendants tortiously interfered.! Plaintiff’s allegations actually contradict the basis for recovery under the theoryof prima facie tort.! Plaintiff’s RICO claim fails due to the lack of a viable claim of a racketeering actor pattern and an injury that can be remedied under RICO.! Plaintiff’s USA Patriot Act claim against Defendants must be dismissed because:(1) there is no private right of action under the USA Patriot Act; (2) that claim isbarred by principles of collateral estoppel; and, (3) Plaintiff has failed to pleadfacts sufficient to show that Defendants had any involvement with or knowledgeof a filing under that statute.PRAYERWHEREFORE, for all of these reasons, Defendants request that the Court dismiss withprejudice Plaintiff’s Complaint and granting Defendants all other relief to which they areentitled.508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8457

Case 2:05-cv-02299-KHV-GLR Document 34 Filed 08/09/2005 Page 6 of 6HUSCH & EPPENBERGER, LLCBy: /s/ John K. PowerJohn K. Power, # 704481200 Main Street, Suite 1700Kansas City, MO 64105Telephone: (816) 421-4800Facsimile: (816) 421-0596ATTORNEYS FOR DEFENDANTS NOVATION,LLC, VOLUNTEER HOSPITAL ASSOCIATION,CURT NONOMAQUE, UNIVERSITYHEALTHSYSTEM CONSORTIUM, ROBERT J.BAKERCERTIFICATE OF SERVICEI hereby certify that on August 9, 2005, I electronically filed the foregoing with the clerkof the court by using the CM/ECF system which will send a notice of electronic filing to thefollowing::Andrew M. DeMareaJonathan H. GregorKathleen Ann HardeeBret D. LandrithMark A. Olthoffademarea@stklaw.comjgregor@stklaw.comkhardee@stklaw.comlandrithlaw@cox.netmolthoff@stklaw.com/s/ John K. PowerJohn K. Power608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8458

Lipari vs. Novation67108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8459

Lipari vs. Novation67208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8460

IN THE STATE OF MISSOURIWESTERN DISTRICT COURT OF APPEALSAT KANSAS CITY, MISSOURI__________________________________________________________________Case No. WD70001 (16 th Cir. Case No. 0816-04217)__________________________________________________________________SAMUEL K. LIPARIAppellantvs.NOVATION, LLC; NEOFORMA, INC; GHX, LLC; VOLUNTEER HOSPITALASSOCIATION; VHA MID-AMERICA, LLC; CURT NONOMAQUE;THOMAS F. SPINDLER; ROBERT H. BEZANSON; GARY DUNCAN;MAYNARD OLIVERIUS; SANDRA VAN TREASE; CHARLES V. ROBB;MICHEAL TERRY; UNIVERSITY HEALTHSYSTEM CONSORTIUM;ROBERT J. BAKER; JERRY A. GRUNDHOFER; RICHARD K. DAVIS;ANDREW CECERE; COX HEALTH CARE SERVICES OF THE OZARKS,INC.; SAINT LUKE'S HEALTH SYSTEM, INC.; STORMONT-VAILHEALTHCARE, INC.; SHUGHART THOMSON & KILROY, P.C.;HUSCH BLACKWELL SANDERS LLP 1__________________________________________________________________APPELLANT’S SUGGESTION IN SUPPORT OF APPEALon the issue ofWHETHER HON. JUDGE MICHAEL W. MANNERSABUSED HIS DISCRETION IN ISSUING A FINAL JUDGMENTREGARDING FEWER THAN ALL PARTIES UNDER RULE 74.01_____________________________________________________________Prepared bySamuel K. LipariPro se Plaintiff297 NE BayviewLee's Summit, MO 64064816-365-1306saml@medicalsupplychain.com1 Two parties in the trial court action, ROBERT J. ZOLLARS and LATHROP & GAGE L.C. have notbeen dismissed and are not party to this appeal.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8461

TABLE OF CONTENTSSuggestion In Support Of Appeal 1Issue: Whether Hon. Judge Michael W. Manners Abused His Discretion In IssuingA Final Judgment Regarding Fewer Than All Parties Under Rule 74.01 1Suggestions Of Law 2Standard Of Review 3Certificate Of Service 13AuthoritiesCases7Arana v. Reed, 793 S.W.2d 224 (Mo. App.W.D., 1990) 5Bannister v. Pulaski Financial Corp., No. ED 90492 (Mo. App. 6/17/2008) 7Bell Scott, LLC v. Wood, Wood, & Wood Invs., Inc., 169 S.W.3d 552, (Mo. App.2005) 5Besand v. Gibbar, 982 S.W.2d 808, 810 (Mo. App. E.D. 1998) 9City of St. Louis v. Hughes, 950 S.W.2d 850 (Mo. banc 1997) 4Columbia, 200 S.W.3d at 550 7Comm. for Educ. Equal., 878 S.W.2d at 450 7Committee for Educational Equality v. State, 878 S.W.2d 446 (Mo., 1994) 3Committee for Educational Equality v. State, 878 S.W.2d 446 (Mo., 1994) 12Committee for Educational Equality v. State, 878 S.W.2d 446 (Mo., 1994) 13Davis v. Department of Social Services Div of Child Support, 15 S.W.3d 42 (Mo.App.W.D., 2000) 4Gash v. Lafayette County, No. WD 65589 (Mo. App. 2/6/2007) 5i08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8462

Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997) 6Gibson v. Brewer, 952 S.W.2d 239 (Mo. banc 1997) 7Jones v. Housing Authority of Kansas City, Case Number WD61700 (Mo. App.11/4/2003) 8Kansas City, 960 S.W.2d 507 at 513 (Mo. App.W.D., 1997) 13Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed.1122 (1955) 12Luecke v. Missouri Dep't of Conservation, 674 S.W.2d 691,(Mo.App.1984) 5Lumbermen Mutual Casualty v. Thornton, 36 S.W.3d 398 (Mo.App. 2000) 6Noll v. Noll, 286 S.W.2d 58 (Mo.App.1956) 10North Kansas City Hosp. Bd. of Trustees v. St. Luke's Northland Hosp., 984S.W.2d 113 at 120 (Mo. App.W.D., 1998) 12Penn-Am. Ins. Co. v. The Bar, Inc., 201 S.W.3d 91, (Mo. App. 2006) 5Pen-Yan Inv., Inc. v. Boyd Kansas City, Inc. 952 S.W.2d 299 (Mo. App. 1997)Riverside-Quindaro Bend Levee Dist. v. Intercont'l Eng'g Mfg., 121 S.W.3d 531(Mo. banc 2003) 3State ex rel. J.E. Dunn Const. Co. v. Fairness in Const. Bd. of City ofState ex rel. State Hwy. Comm'n. v. Smith, 303 S.W.2d 120 (Mo.1957) 7Wall USA, Inc. v. City of Ballwin, 82 S.W.3d 201 (Mo. App., 2001) 6Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28L.Ed.2d 77 (1971) 12StatutesRule 74.01 (b) 1Rule 55.27(a)(6) 2ii08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8463

Rule 81.01 3Rule 74.01(a) 3Rule 74.01(b) 3Rule 74.01(b) 4Rule 74.01(b) 5Rule 74.01(b) 6Restatement (Second) of Judgments § 13 (1982) 10Sherman Act 1118 U.S.C. Section 1961, et seq. (“RICO”) 11F.R.C.P. 54(b) 12Rule 74.01(b) 12F.R.C.P. 54(b) 12Rule 74.01(b) 1218 USC §§ 1961 et seq 17iii08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8464

SUGGESTION IN SUPPORT OF APPEALon the issue ofWHETHER HON. JUDGE MICHAEL W. MANNERSABUSED HIS DISCRETION IN ISSUING A FINAL JUDGMENTREGARDING FEWER THAN ALL PARTIES UNDER RULE 74.01Comes now, the plaintiff/appellant Samuel K. Lipari appearing pro se andrespectfully provides the following suggestions in support of proceeding with theappeal timely docketed with this court.STATEMENT OF FACTS1. The appellant informed the parties and this court via his Aug. 13 th , 2008Notice of Appeal that the trial court had entered judgment on some but not allparties and claims. See Notice of Appeal lgl. file v. 4, pg. 673.2. The appellant’s Notice of Appeal apprised the parties and court of this factin the notice’s opening on page 1 (lgl. file v. 4, pg. 673), the notice’s statement offacts paragraphs 1 and 2 on page 2 (lgl. file v. 4, pg. 674) and in the notice’saccompanying suggestion of law stating the applicability of Rule 74.01 (b) (lgl.file v. 4, pg. 674-5).3. None of the parties to the appeal filed or served on the trial court, theappellant or this court an objection, response or other post trial motion.4. In an extra-judicial communication to this court dated August 21, 2008,Peter F. Daniel an attorney for the defendant Lathrop & Gage L.C. sent a letter(lgl. file v. 4, pg. 678) on Lathrop & Gage L.C.’s business correspondence108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8465

stationary addressed to the clerk of this court informing him that the trial court hadentered judgment on some but not all parties and claims.5. Neither Peter F. Daniel or the defendants Lathrop & Gage L.C. or Robert J.Zollars are parties to this appeal.6. No pre appeal motion has been served upon the appellant.SUGGESTIONS OF LAWThe appellant’s petition describes in detail how the defendants repeatedlydeprived the appellant of legal representation from Missouri attorneys for thepurpose of depriving the plaintiff of his right to enter the market for hospitalsupplies in Missouri, to take the appellant’s property and to prevent the appellantfrom effectively asserting any claims that would permit price loweringcompetition in hospital supplies for Missouri’s hospitals.The appellant responded to the motions to dismiss effectively overcomingthe challenges to in personam jurisdiction with a judgment over conflictingaffidavits of facts and records exhibits related to establishing jurisdiction in theappellant’s favor. See (lgl. file v. 4, pg. 598-600; v. 4 643-670). The defendantshave not counter appealed. The appellant respectfully believes that the trialcourt’s granting of the dismissals for failure to state a claim under Rule55.27(a)(6) was in error and made a timely notice of appeal from the finaljudgment entered on fewer than all the parties and claims.The point relied upon for purposes of this suggestion supporting thejurisdiction of the Western District Court over the plaintiff’s appeal is that the trial208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8466

court did not err in issuing a final judgment on fewer than all parties and claimsand cannot be reversed by the Western District of Missouri over the his discretionto dispatch complete judicial units through an order expressly stating judgmentand dismissal with prejudice.STANDARD OF REVIEWThe standard for reviewing a trial court’s determination an order is finalregarding a party or claims under Rule 74.01(b) is abuse of discretion. SeeCommittee for Educational Equality v. State, 878 S.W.2d 446 (Mo., 1994).Appeals are governed by statute: "The right to appeal is purely statutoryand, where a statute does not give a right to appeal, no right exists." Riverside-Quindaro Bend Levee Dist. v. Intercont'l Eng'g Mfg., 121 S.W.3d 531, 532 (Mo.banc 2003); see also Rule 81.01.Missouri Rule 74.01(a) defines “judgment” by listing a broad range offilings or entries by a judge that qualify as a judgment: “includes a decree and anyorder from which an appeal lies” id. Since the appellant’s petition stated “morethan one claim for relief” and the petition states claims against “multiple parties”Missouri Rule 74.01(b) also applies. Under Rule 74.01(b) the court may ‘enter ajudgment as to one or more but fewer than all of the claims or parties only upon anexpress determination that there is no just reason for delay.”id.Neither the memorandum and order of judgment or the online case docketentry of Hon. Judge Michael W. Manners explains his complex reasoning fordenying the defendants’ motions for dismissals based on lack of in personam308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8467

jurisdiction but instead grants the defendants’ motions for dismissals on the basisof the failure of the petition to state a claim. In fact, not one word is devoted toexplaining these findings of law and fact. However, it is clear from the writtenorder that Hon. Judge Michael W. Manners was supremely familiar with therequirements for entering final judgments on fewer than all parties in an actionbefore the conclusion of the litigation under Rule 74.01(b).Hon. Judge Michael W. Manners efficiently and concisely provided theparties and any reviewing court with notice that he has made findings and hasadopted specific motions for dismissal. Hon. Judge Michael W. Manners’ orderspecifies it is applicable only to the parties named as dismissed, excluding thedefendants Robert J. Zollars and Lathrop & Gage LLC, and terminating theplaintiff’s action against the remainder of the parties. The court’s order expresslystates “JUDGEMENT” and is captioned as such (lgl. file v. 4 at pg. 671)“DISMISSED WITH PREJUDICE”. See lgl. file v. 4 at pg. 672. The judgment isfinal under Rule 74.01, the order is denominated "judgment" or "decree." City ofSt. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997). This court has stated“…an order of the court must be denominated a "judgment" to be consideredfinal.” (citing City of St. Louis) Davis v. Department of Social Services Div ofChild Support, 15 S.W.3d 42 (Mo. App.W.D., 2000).Under the controlling precedent of the Western District court the rulingover the plaintiff’s claims against the dismissed parties is a final judgmentterminating their judicial units: “Termination is effected by a final judgment on the408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8468

merits, a dismissal by the court with prejudice, or by abandonment of the action.”Arana v. Reed, 793 S.W.2d 224 at 226 (Mo. App.W.D., 1990).The trial court’s designation of a final judgment by expressly stating“JUDGEMENT” and “DISMISSED WITH PREJUDICE” was clearly establishedunder controlling law and within Hon. Judge Michael Manners’ discretion as adetermination he could only make if he had decided there was “no just reason fordelay” under Rule 74.01(b). Under the Luecke dependency test so long as theremaining claims are not "dependent in any respect upon the outcome of or finaldisposition of" the judgment rendered, that judgment is final without need for thetrial court to so designate.' Luecke v. Missouri Dep't of Conservation, 674 S.W.2d691, 692 (Mo.App.1984).The Hon. Judge Michael Manners’s order disposes of distinct "judicialunit[s]," defined as "the final judgment on a claim, and not a ruling on some ofseveral issues arising out of the same transaction or occurrence which does notdispose of the claim." Penn-Am. Ins. Co. v. The Bar, Inc., 201 S.W.3d 91, 95 (Mo.App. 2006); See also Bell Scott, LLC v. Wood, Wood, & Wood Invs., Inc., 169S.W.3d 552, 554 (Mo. App. 2005) (stating that only a judgment disposing of a"judicial unit" can be certified for early appeal under Rule 74.01(b)) as theWestern District court observed in Gash v. Lafayette County, No. WD 65589 at fn.3 (Mo. App. 2/6/2007).508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8469

The trial court in Wall USA, Inc. v. City of Ballwin, 82 S.W.3d 201 (Mo.App., 2001) was found to have abused its discretion by not complying with Rule74.01(b) because the court’s written order “did not label or title it a‘judgment.’"Id. and concerned less than a complete judicial unit or claim id. at pg.202 and did not differentiate between a finding against a separate party that wasexpressly stated to be a “judgment” Id. at pg. 203. The written order of Hon. JudgeMichael W. Manners demonstrates the court’s knowledge of the requirements forvalidly finding “no just reason for delay” and clearly avoided the defects in WallUSA 82 S.W.3d 201.The order of judgment by Hon. Judge Michael W. Manners carefullyseparates the defendants’ motions by parties into discrete entries or units, despitethe plaintiff’s repeated motions and best efforts to consolidate the adjudication ofthe dismissals. See lgl. file v. 2, pg. 304-307; v. 2 pg. 336; v. 2 pg. 347-348; v. 4pg. 577-583.In entering the judgments by units of claims, Hon. Judge Michael W.Manners clearly knew he was meeting the Missouri Supreme Court’s guidance onmaking a judgment final stating that "a judgment is final only when it disposes ofa `distinct judicial unit.'" See Lumbermen Mutual Casualty v. Thornton, 36 S.W.3d398, 402 (Mo.App. 2000)., citing Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo.banc 1997). The term "distinct judicial unit" means "the final judgment on a claim,and not a ruling on some of several issues arising out of the same transaction or608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8470

occurrence which does not dispose of the claim." Gibson v. Brewer, 952 S.W.2d239, 244 (Mo. banc 1997), quoting State ex rel. State Hwy. Comm'n. v. Smith, 303S.W.2d 120, 123 (Mo.1957). "It is `differing,' `separate,' `distinct' transactions oroccurrences that permit a separately appealable judgment, not differing legaltheories or issues presented for recovery on the same claim." Id.The Eastern District observed that where claims remain against a party, aseparately appealable judgment has not been made: “Unlike the Gibson case,where the court dismissed all counts against one party, no party in the instant casehas been entirely discharged from the litigation because the buyer's claim fordamages, costs, and attorney's fees from the interpleaded funds remains pending inthe trial court.” Bannister v. Pulaski Financial Corp., No. ED 90492 (Mo. App.6/17/2008).The Bannister court also stated: “For certification pursuant to Rule74.01(b), the trial court's decision must dispose of a minimum of one claim. Rule74.01(b); Comm. for Educ. Equal., 878 S.W.2d at 450; Columbia, 200 S.W.3d at550. A judgment that resolves fewer than all legal issues as to any single claim isnot final despite the trial court's designation under Rule 74.01(b). Id.” Bannister,No. ED 90492 at pg. 1.The Western District court has recognized Rule 74.01(b) can be invoked bya trial court where multiple claims or parties are involved and one complete claimis fully adjudicated, Pen-Yan Inv., Inc. v. Boyd Kansas City, Inc. 952 S.W.2d 299,708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8471

308 (Mo. App. 1997) and in Jones v. Housing Authority of Kansas City, CaseNumber WD61700 (Mo. App. 11/4/2003).The Hon. Judge Michael W. Manners’ order demonstrates he knew he wasextinguishing all claims against each dismissed party, meeting the requirements ofRule 74.01(b) and that his determination that there is no just reason for delayinherent in the “DISMISSED WITH PREJUDICE” designation under the abovecontrolling Missouri Supreme Court cases Committee for Educational Equality,878 S.W.2d 446; Gibson 952 S.W.2d 239 and State Hwy. Comm'n 303 S.W.2d120 defining the completeness of the claims or judicial units dismissed could notbe reversed by the Western District of Missouri Court of Appeals.The appellant does not support Hon. Judge Michael W. Manners’ decisionto dispatch some of his claims against fewer than all the defendants into separatelyappealable judgments or the reason for which the appellant believes Hon. JudgeMichael W. Manners did so. The plaintiff has worked to vindicate his legal right toenter the Missouri market for hospital supplies through a substantive trial on theissues for over six years in Kansas and Missouri federal courts.Consumers in the market and the State of Missouri itself (lgl. file v. 1 pg.19-23) have been injured by the lack of competition. Judgments of dismissal withprejudice of fewer than all the parties before the end of the litigation have neverbeen encountered by the plaintiff in federal courts and obviously confused thecompetent and experienced Missouri state law practitioner Peter F. Daniel ofLathrop & Gage L.C. Clearly the appellant as a pro se plaintiff was supposed to808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8472

discover he could not appeal Hon. Judge Michael W. Manners’ order dismissingall claims against all parties except the defendant Lathrop & Gage, P.C. until afterthe trial more than a year and a half later in 2009.It is not however the plaintiff or Lathrop & Gage, P.C. that determines thedisposition of the plaintiff’s claims. Hon. Judge Michael W. Manners as the trialcourt judge has the discretion to determine if some parties or claims are to enjoy afinal judgment without delaying that resolution until the end of the litigation: “Thecircuit judge, in exercising that discretion, is granted broad latitude to act as a"dispatcher" of the case. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1,8, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1 (1980).” Committee for EducationalEquality v. State, 878 S.W.2d 446 at 453 (Mo., 1994).The beneficiaries of this scheme as it was designed are the defendantsrepresented by Husch Blackwell Sanders LLP and Shughart Thomson & Kilroy,P.C. The doctrine of judicial estoppel prevents these defendants from contestingjurisdiction over this appeal on the issue of whether the trial court had properlydetermined Rule 74.01(b)’s “no just reason for delay” requirement inherent in the“DISMISSED WITH PREJUDICE” judgment. “Judicial estoppel applies toprevent litigants from taking a position in one judicial proceeding, therebyobtaining benefits from that position in that instance and later, in a secondproceeding, taking a contrary position in order to obtain benefits from such acontrary position at that time." Besand v. Gibbar, 982 S.W.2d 808, 810 (Mo. App.E.D. 1998).908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8473

The parties represented by Husch Blackwell Sanders LLP and ShughartThomson & Kilroy, P.C. are prohibited under the doctrine of judicial estoppelfrom asserting objections to the jurisdiction of the Western District court over thistimely appeal because of the inexorably intertwined res judicata argumentsthrough which their trial court dismissals were obtained.Husch Blackwell Sanders LLP and Shughart Thomson & Kilroy, P.C.argued that mere interim orders in Kansas District Court should warrant theapplication of res judicata in Hon. Judge Michael W. Manners’ court despite therequirement for a final judgment under Noll v. Noll, 286 S.W.2d 58, 60-61(Mo.App.1956); Restatement (Second) of Judgments § 13 (1982).If this court does not yet have jurisdiction over this appeal under Rule74.01(b) then the dismissal was in error because “res judicata principles will notapply to make the trial court's decision, as it now exists, preclusive of issues infuture litigation.” Committee for Educational Equality v. State, 878 S.W.2d 446 at454 (Mo., 1994).This court has observed that judicial estoppel is not particularly limited inits application to protect the integrity of courts:“New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (noting thatjudicial estoppel is often invoked to "prohibit[] parties from deliberatelychanging positions according to the exigencies of the moment" and that"[t]he circumstances under which judicial estoppel may appropriately beinvoked are probably not reducible to any general formulation of principle")(internal quotations omitted).”1008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8474

Dick v. Children's Mercy Hospital, No. WD # 61616 at fn 5. (MO5/25/2004) (Mo, 2004).Husch Blackwell Sanders LLP; Shughart Thomson & Kilroy, P.C. and theHon. Judge Michael W. Manners are correct in their common view of the lawmaking the parties and claims dismissed independent judicial units. Thedefendants represented by Husch Blackwell Sanders LLP and Shughart Thomson& Kilroy, P.C. are parties, parties in interest or identified as co-conspirators inSherman Act and 18 U.S.C. Section 1961, et seq. (“RICO”) based claims in theconcurrent jurisdiction federal actions Medical Supply Chain, Inc. v. Novation, etal, KS Dist. Court case no:05-2299; Samuel Lipari v. US Bancorp, NA, et al, KS.Dist. Case No. 2:07-cv-02146-CM (formerly Samuel Lipari v. US Bancorp, NA, etal, 16 th Cir Mo. case no. 0616-CV32307); and Samuel Lipari v. General Electricet al. W. D. of MO. Case No. 07-0849-CV-W-FJG ( formerly Samuel Lipari v.General Electric et al. 16 th Cir. Mo. case no. 0616-CV-07421 and before thatMedical Supply Chain, Inc. v. General Electric Company, et al., KS Dist. casenumber 03-2324-CM) See Petition Appendix One Procedural History lgl. file v. 1,pg. 120-125.The defense firms Husch Blackwell Sanders LLP and Shughart Thomson& Kilroy, P.C. and Hon. Judge Michael W. Manners (who also presided over theappellant’s other Missouri state actions) are aware of how the many parties andclaims related to excluding entrants from the Missouri market for hospital supplies1108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8475

can be divided into separate “distinct judicial units” as defined by Thornton, 36S.W.3d 398, 402.The en banc court in Committee for Educational Equality v. State, 878S.W.2d 446 (Mo., 1994) looked to federal cases dealing with F.R.C.P. 54(b), todefine what is a separate claim or single unit of rights under Rule 74.01(b) whichitself was adopted from 54(b). The Missouri Supreme Court stated that “Where afederal rule has been construed by the federal courts and our Court thereafteradopts a rule on the same subject using identical language, there is no principledway to ignore the federal cases. Committee for Ed. Id. S.W.2d at 451.The Western District court also recognizes that “Section 416.141 providesthat Missouri's antitrust provision ‘shall be construed in harmony with rulingjudicial interpretations of comparable federal antitrust statutes.’ § 416.141.” NorthKansas City Hosp. Bd. of Trustees v. St. Luke's Northland Hosp., 984 S.W.2d 113at 120 (Mo. App.W.D., 1998). The US Supreme Court determined the rule for theseparatableness of parties and claims under the Sherman Antitrust Act in Lawlor v.National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955)(cited by appellant lgl. file v. 4 at pg. 595) providing for the plainitiff’s right to notsue all antitrust co-conspirators in a single action; prior judgments cannot barclaims on subsequent conduct. See Lawlor, 349 U.S. at 329, 75 S.Ct. 865 and thatunder Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795,28 L.Ed.2d 77 (1971) (cited by appellant lgl. file v. 4 at pg. 593) the plaintiff has aright to bring antitrust and RICO claims (Bankers Trust, 859 F.2d at 1096) each1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8476

time a plaintiff suffers an injury caused by an illegal act of the defendants becausea cause of action accrues to recover damages based on that injury.Of course these rules are also clearly established under the controllingprecedent of the State of Missouri and the Western District court in State ex rel.J.E. Dunn Const. Co. v. Fairness in Const. Bd. of City of Kansas City, 960 S.W.2d507 at 513 (Mo. App.W.D., 1997) See lgl. file v. 4 at pg. 593.It is not lost on the appellant what is happening here. The controlling law ofthis state and jurisdiction prevented the appellant’s claims from being dismissedfor res judicata. See lgl. file v. 4 at pg. 593-604. Missouri trial courts arecautioned not to bypass the formal procedures to resolve a claim just because thepublic significance is immense:“It is unwise for courts to shortcut procedural requirements necessary to fullyand fairly address the substantive issues in cases of great public significance,when those same procedures would be required without pause in cases oflesser magnitude.”1994).Committee for Educational Equality v. State, 878 S.W.2d 446 at 454 (Mo.,The defendants’ assertion of res judicata itself was a misrepresentation ofthe controlling Missouri law regarding the requirements for the finality ofjudgment element and the application of federal law for determining the finality offederal cases for claim and issue preclusion since the petition clearly addresssubsequent conduct by the defendants in new and distinct schemes to maintain amonopoly and to further monopolize Missouri’s market for hospital supplies. The1308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8477

appellant defended his petition against dismissal on that basis by citing tocontrolling precedent of the Western District court Missouri Supreme Court in J.E.Dunn, 960 S.W.2d 507 and the US Supreme Court in Lawlor, 349 U.S. at 329 andHazeltine Research, Inc., 401 U.S. 321 Supra.A strong public policy exists behind the Missouri state legislature’s creationof a statutory provision in Rule 74.01(b) that permits parties and claims to bedismissed or to seek a review through appeal before the resolution of an entirelitigation. The plaintiff is in his sixth year. The defendants’ dismissals may befound to be valid upon review and they would thereby be released from liability.However, if the court’s dismissals are not yet ripe for review, the judgment will besubject to modification, and because the appellant has done all within his power toseek appellate review, res judicata principles will not apply to make the trialcourt's decision, as it now exists, preclusive of issues in future litigation.”Committee for Educational Equality v. State, 878 S.W.2d 446 at 454 (Mo., 1994).The defendants’ law firms Husch Blackwell Sanders LLP and ShughartThomson & Kilroy, P.C. obtained the interim decisions they sought to assert in theHon. Judge Michael W. Manners’ court through the fraud of arguing theappellant’s complaints did not state the elements of a claim when the complaintsclearly states the elements from the controlling precedents of the jurisdictions inthe same order the guiding appellate decisions recited the elements and withsupporting averments of material facts. The appellant’s petition before Hon. JudgeMichael W. Manners clearly was written to the same standard. See lgl. file v. 1 pg.1408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8478

103-118. The judge could readily discern from the face of the pleadings of themotions to dismiss that the defense firms Husch Blackwell Sanders LLP andShughart Thomson & Kilroy, P.C. were seeking that he make a similarlyerroneous ruling. The Hon. Judge Michael W. Manners has avoided making aclearly erroneous ruling on its face like the appellant has suffered in the federalcourts by not stating in writing his reasons for granting the defendants’ dismissals.“ ‘When a court does not explain its decision, an appellate court should beskeptical.’ Horn v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir.1990).”Columbia Mut. Ins. Co. v. Epstein, 200 S.W.3d 547 at 550 (Mo. App., 2006)The plaintiff/appellant can certainly empathize with the Hon. JudgeMichael W. Manners who as a former plaintiff’s attorney could readily see thescore. The defendants are among the richest and most powerful parties someonecould sue in this state and working with the most powerful officials in Missouriand Kansas. See lgl. file v. 1 pg. 46-56. The conduct both in monopolizing themarket and in protecting that market had support at the highest levels of the stateand federal government. See lgl. file v. 1 pg. 29-37. The plaintiff had clearlyexperienced outcomes in every other venue that defied all rules and yet appellatecourts would avoid reviewing the decisions.The Hon. Judge Michael W. Manners had to weigh the prospects of a prose plaintiff in the most complicated of litigation that would tie up and choke offthe ability of Division 2 of the 16th Circuit to adjudicate the matters of thecommunity. From the facts of the petition, no Missouri attorney can represent the1508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8479

appellant without being destroyed financially and personally (probably evendisbarred if they are ethical and follow the rules and law if not directly by the Stateof Missouri then by the State of Kansas on a separate pretext then destroyedprofessionally here). See lgl. file v. 1 pg. 75-92.The Hon. Judge Michael W. Manners from his unique vantage point as trialjudge over matters that are extra-judicial to the appellants’ cases could also seethat the Attorney General for the State of Missouri was in practical termspowerless to enforce the antitrust law against the defendants when even a lessambitious vindication of Missouri state sunshine statutes to produce the InsureMissouri noncompetitive bidding documents ( see 250-265 lgl. file v. 1 pg. 42-46; only a microcosm of the discovery the plaintiff would pursue) was taxing themost competent attorneys in the action State Of Mo ex rel v. Matthew R Blunt etal. 19 th Cir. Case no. 08AC-CC00370. The Hon. Judge Michael W. Manners couldsee Scott Eckersley the government attorney that was an inside witness to theunlawful destruction of email evidence (lgl. file v. 1 pg. 42-46) sought by theAssociated Press was in fact nearly destroyed professionally and financially by theholders of that evidence, being subjected to an attorney discipline complaint foracting ethically (like the appellant’s initial attorney) and fired from hisgovernment job on a pretext. Scott Eckersley v Matthew Roy Blunt et al 16th Cir.Case no. 0816-CV00118 also presided over by the Hon. Judge Michael W.Manners.1608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8480

And in the appellant’s related litigation this court over the underlyingaction against the defendants’ General Electric co-conspirators also represented byHusch Blackwell Sanders LLP , Ex Rel Samuel Lipari, v. Michael Manners WD ofMo. Case no. 68703 the Western District Court of Appeals clearly was unwillingto require the Hon. Judge Michael W. Manners to order that the appellant receiveany discovery from disclosures or motions to compel despite clearly frivolousblanket assertions by Husch Blackwell Sanders LLP that all documents in thepossession of the defendants were irrelevant and therefore undiscoverable.The Western District Court of Appeals docketed the mandamus on8/13/2007 and disposed of the appellant’s grave concerns the same day without awritten explanation. Ultimately when the material misrepresentations to the courtby Husch Blackwell Sanders LLP’s attorneys were repeated and documented, theHon. Judge Michael W. Manners permitted amendment of the claims to includeviolations of 18 USC §§ 1961 et seq. over the conduct resulting in HuschBlackwell Sanders LLP removing the action to federal court.Maybe with the wisdom of Solomon, the Hon. Judge Michael W. Mannersreduced another decade of litigation that would have taxed the judicial resourcesof this state into a trial by High Card Draw. Instead of a trial determining themerits of the plaintiff’s claims on substantive issues through the normal procedureof discovery followed by dispositive motions and maybe a jury trial, the courtelected to give the pro se appellant one small chance to make the appellate review1708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8481

jurisdictional deadline by knowing to file a timely notice of appeal even thoughthe case was not over.In this one small ghost of a chance to save the appellant’s life’s work oftrying to lower healthcare costs and his colorable claims with obvious merit, theappellant with no knowledge of Missouri State appeals, deadlines or the change inMissouri State law governing appeals from less than a complete resolution of allclaims against all parties was forced by the Hon. Judge Michael W. Manners topick a card. By sheer chance, the plaintiff picked the Ace of Spades by filing hisNotice of Appeal on 8/13/2008, not at the conclusion of his litigation against theremaining party Lathrop & Gage L.C. in 2009. The plaintiff can’t help it if he’slucky.Respectively submitted,S/Samuel K. Lipari____________________Samuel K. LipariPro se1808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8482

CERTIFICATE OF SERVICEThe undersigned hereby certifies that a true and accurate copy of the foregoinginstrument was forwarded this 3rd day of September, 2008, by first class mailpostage prepaid to:John K. Power, Esq. Husch Blackwell Sanders LLP, 1200 Main Street, Suite 2300Kansas City , MO 64105Jay E. Heidrick, Shughart Thomson & Kilroy, P.C. 32 Corporate Woods, Suite1100 , 9225 Indian Creek Parkway Overland Park, Kansas 66210William G. Beck, Peter F. Daniel, J. Alison Auxter, Lathrop & Gage LC, 2345Grand Boulevard, Suite 2800, Kansas City, MO 64108S/Samuel K. Lipari____________________Samuel K. Lipari297 NE BayviewLee's Summit, MO 64064816-365-1306saml@medicalsupplychain.comPro se1908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8483

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASKANSAS CITY KANSAS DIVISIONCASE NO.: 02-2539-CM____________________________________________MEDICAL SUPPLY CHAIN, INC.,vs.Plaintiff ,US BANCORP, NA.US BANKPRIVATE CLIENT GROUP, CORPORATE TRUST,INSTITUTIONAL TRUST AND CUSTODY,AND MUTUAL FUND SERVICES, LLC.PIPER JAFFRAYANDREW CESERESUSAN PAINELARS ANDERSONBRIAN KABBESUNKNOWN HEALTHCARE SUPPLIERDefendants.________________________________________________PLAINTIFF’S AMENDED COMPLAINTPlaintiff MEDICAL SUPPLY CHAIN, INC. appears through its attorney,Bret D. Landrith, Esq., and submits the following amended complaint; adding anamed defendant, JERRY A. GRUNDHOFER, the President and Chief ExecutiveOfficer of US BANCORP NA. The Plaintiff adds requests for declaratory reliefand additional injunctive relief including supplemental state law based causes ofaction for Misappropriation Of Trade Secrets, Tortuous Interference WithProspective Contracts, Tortuous Interference With Contracts, PromissoryEstoppel, Breach Of Contract, Fraudulent Misrepresentation, Violation Of Good108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8484

Faith And Fair Dealing. The Plaintiff adds requests for further equitable relief inthe form of an urgent preliminary injunction preventing Defendant US BANCORPNA from denying the Plaintiff services, facilities and products of its financialinstitution under color of law through an abuse of Defendants’ policing powerunder the US Patriot Act and against the public interest embodied in theSherman, Clayton and Hobbs Acts prohibiting obstruction and barriers in entry tocommerce. Additionally, MEDICAL SUPPLY CHAIN, INC. has amended itscomplaint to seek injunctive relief protecting its intellectual property and tradesecrets from misappropriation under Kansas statute.NATURE OF THE CASE1. The Plaintiff Medical Supply Chain, Inc., (hereafter “MSCI”) brings thisaction to seek temporary relief from the defendants US BANK, US BANCORP,NA, US BANCORP PIPER JAFFRAY, INC., JERRY A. GRUNDHOFER,ANDREW CESERE, BRIAN KABBES, LARS ANDERSON, SUSAN PAINE andUNKNOWN HEALTHCARE SUPPLIER’S (hereafter collectively referred as “Defendants”) illegal acts, which have resulted in loss of property and detriment tothe Plaintiff’s business.2. The Plaintiff MSCI has been harmed by the Defendants’ conduct infurtherance of a common enterprise by Defendants’ denial of services andfacilities for hosting MSCI’s escrow accounts. The Defendants with fullconfidential knowledge of MSCI’s finances, business model, plan and proprietarybusiness trade secrets obstructed and seek to delay MSCI’s entry into commercethrough the marketing of its healthcare supply chain intellectual propertyconsisting of an educational healthcare certification program for trainingindependent consultants and MSCI’s entry into commerce through the marketingof its supply chain management and market making software. Defendant’s208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8485

interference has affected MSCI’s movement of these products into commerce toa severe degree.3. Defendants own, control and broker shares of stock and bonds inhealthcare industry companies MSCI has planned to compete with or rely on assuppliers. Defendants rely on the income from ownership in and services tohealthcare industry companies and healthcare company officers that depend onprofits derived from monopoly marketplace power. Defendants are suppliers ofservices to the healthcare industry and have combined to deny those services toMSCI.4. The Plaintiff MSCI has been harmed by the Defendants’ conduct infurtherance of a common enterprise as shown by Defendant employees’disclosure that the reason for Defendants’ denial of services and facilities in theform of hosting escrow accounts is their required performance of duties policingaccounts as federally chartered financial institutions under the federal statutoryanti-money laundering requirements of the USA PATRIOT Act.5. The Plaintiff MSCI responded to the Defendants’ decision withcommunications to all levels of the Defendants’ common enterprise explainingthe reporting requirements of the US PATRIOT Act were not a burden on theescrow accounts, that the act did not apply to MSCI which was an establishedUS BANCORP account holder and a corporation in existence for over two and ahalf years, currently in good standing with the Missouri Secretary of State and towhich the Defendants have performed diligence on at the time it set up itscorporate account under a federal tax id number and when its chief executiveand sole officer opened his personal account. The Plaintiff MSCI informed theDefendants that they were in possession of the MSCI business plan, contract forcertification, corporate report, certification of good standing from the MissouriDepartment of Revenue and a personal credit application of the chief executive308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8486

and founder, Samuel Lipari for a line of credit based on the nonrefundableportion of each certification account. MSCI informed Defendants that it had a 14page financial application for each of the certification candidates, that all were UScitizens and had provided releases for credit, financial and criminal backgroundchecks and that the funds would be wired from their personal financialinstitutions. The Defendants refused to reverse their denial of services andfacilities in refusing to host MSCI’s escrow accounts.6. The Plaintiff MSCI on October 15 th , 2002 repeated the inapplicability ofthe US PATRIOT Act and the failure to provide a valid or truthful reason by theDefendants for their denial of services and facilities in refusing to host MSCI’sescrow accounts. The Plaintiff MSCI pointed out the inherent need to buildcandidate trust in MSCI exhibited by seeking the establishment of escrowaccounts and that suddenly revoking US BANK as the trust entity wouldjeopardize the ten best independent representatives they had chosen atconsiderable time and expense out of hundreds of applicants. The Plaintiff MSCIexplained that it was now trapped in a relationship with US Bank and could notseek escrow accounts at another bank without compounding themisunderstanding that USA PATRIOT Act requirements prevented MSCI frombeing entitled to escrow account services. The Plaintiff MSCI called attention tothe Defendants knowledge of the magnitude of injury their obstruction and delayof MSCI’s entry into commerce including the loss of hundreds of millions ofdollars of revenue MSCI was depending on from its independent representatives.The Plaintiff MSCI called attention to the illegal business practices rife in thehealthcare supply market space MSCI was committed to entering and reformingand that the Defendants had relationships, substantial investments in andrevenue from established entities in the healthcare market, including substantialtrust accounts from healthcare entities. The Plaintiff MSCI pointed out the conflict408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8487

of interest imputed by Defendants denial of service and facilities in failing toprovide the escrow accounts. The Plaintiff MSCI entreated the Defendants tohelp in remediating damages by establishing escrow accounts for only the 10candidates MSCI had relied upon the US Bank escrow account contractapproved by the Defendants and sent 5 out before receiving notice of denial ofservice by the Defendants. Defendants again refused to provide escrow accountservices to MSCI.7. The Plaintiff MSCI now seeks declaratory relief based on the injurysuffered as a result of conduct prohibited by federal and state law and urgentinjunctive relief because it continues to suffer as a result of Defendants’ illegalconduct against it while MSCI attempts to remediate its injury.8. The Plaintiff MSCI seeks urgent injunctive relief on the basis it continuesto be in jeopordy of the Defendants abuse of their police power and authorityunder the USA PATRIOT Act in the form of false clandestine reporting that willharm MSCI as it attempts to capitalize its entry into commerce.9. The Plaintiff MSCI seeks urgent injunctive relief on behalf of similarlysituated companies without legal resources that might be discriminated against inbanking services because of the ethnic or national origin of their corporateofficers based on the pretextual use of USA PATRIOT Act reporting duties.10. The Plaintiff MSCI seeks urgent injunctive relief to prevent the furtherharm by Defendants of MSCI’s business associates and customers which arehealthcare systems consisting of hospitals and long term care facilities who aredependent on a neutral electronic market place and supply mangement providerto enter a market in which they are being held hostage by corrupt healthcareproduct suppliers limiting their access to critical medical devices, pharmacuticalsand material at the cost of human lives and countless unnecessary permanentbodily injuries. The healthsystems and hospital relying on a neutral electronic508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8488

marketplace to replace their current dependency on Group PurchasingOrganizations utilizing anticompetitive business practices including kickbacks,equity exchanges of healthcare supplier corporate stock, tying and exclusivecontracting are unable to jeapordize their patients and businesses out of a fear ofretalliation from these distributors.11. The Plaintiff MSCI seeks urgent injunctive relief to prevent the furtherharm by Defendants to MSCI through harming MSCI’s business associates andcustomers which are information technology partners who have made significantinvestments, even to the point of millions of dollars in research and developmentin their own corporations, partially in reliance on becoming a vendor of high endsupply chain strategic management services and human resources mangementservices, respectively to the healthcare industry.JURISDICTION AND VENUE12. This Court has jurisdiction over the subject matter of the present injunctiverelief sought based on federal statutes giving rise to federal civil causes of actionand supplemental state law based claims for damages. The contract initiating therelationship between the parties was executed between US Bancorp and MSCIat the US Bank Office at 5730 SW 21st Street, Topeka, KS., therefore venue inthis court is proper.13. This Complaint is filed and these proceedings are instituted under theprovisions of the Sherman Act and the Clayton Act.14. This Court has jurisdiction over complaints based on Hobbs Act,The USA PATRIOT Act.15. Jurisdiction for Medical Supply Chain, Inc. to commence this action forinjunctive relief is conferred by the Clayton Act, 15 U.S.C. §§ 13 and 26 andK.S.A. 60-3321. Misappropriation of trade secret; injunctive or other protectiverelief608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8489

16. US BANCORP NA is a Delaware Corporation organized under theNational Bank Act, 12 U.S.C. §§ 21-216d, headquartered in Minnesota and doingbusiness in Kansas and other states through its wholly owned subsidiaries USBANK, PRIVATE CLIENT GROUP, CORPORATE TRUST, INSTITUTIONALTRUST AND CUSTODY, AND MUTUAL FUND SERVICES, LLC and USBANCORP PIPER JAFFRAY and its employees and agents: JERRY A.GRUNDHOFER ,ANDREW CESERE, SUSAN PAINE, LARS ANDERSON,BRIAN KABBES and through its ownership interest or underwriting relationship inUNKNOWN HEALTHCARE SUPPLIER.17. The violations alleged herein have a substantial effect on interstatecommerce.18. Kansas substantive law permits an injured party to have civilremedies for criminal acts Smith v. Welch 265 Kan. 868.PARTIESPLAINTIFF:MEDICAL SUPPLY CHAIN INC.19. Plaintiff MSCI or MEDICAL SUPPLY CHAIN, INC., is a registered MissouriCorporation in good standing with corporate headquarters at 1300 NW JeffersonCourt, Blue Springs, MO. MSCI sought to obtain escrow account services fortuition from candidates for a year long healthcare supply strategist certificationprogram, similar to bank escrow account arrangements for tuition from studentsenrolled in other Missouri technical and university education programs. MSCIwas forced to develop its own educational program when over a period of severalyears it could not convince leading US universities to offer substantial coursework concerning healthcare logistics and the entire healthcare supply chain. Withthe exception of limited courses provided with the assistance of MSCI’s associateindustry experts available at Arizona State University, Wharton School of708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8490

Business and Harvard School of Business, MSCI could not find the externaltraining it required for its independent representatives so it was forced at greatexpense to create a healthcare supply chain strategist certitication programwhich it made available to qualified consultants in healthcare and informationtechnology with a tuition of $5000.00 for the first week of intensive introductionand orientation and $ 25,000.00 for the remaining year of instruction andhealtcare supply chain practicum. These funds were to be held in individualescrow accounts at US BANCORP NA.DEFENDANTS:US BANCORP NA20. Defendant US BANCORP, NA is a Bank Holding Corporationheadquartered at U.S. Bancorp Center 800 Nicollet Mall , Minneapolis, MN55402. Defendant US BANCORP, NA merged with Firststar Bank to operatebanks in several states under the name US Bank. US BANCORP, NA is theparent company of the employees and subsidiaries named as Defendants. USBANCORP, NA is thought to be invested in and have maintained accounts andprovided services for Defendant UNKNOWN HEALTHCARE PROVIDER. At alltimes during this matter, US BANCORP NA provided information about itsinvolvement in healthcare industry companies to all employees throughout itssubsidiaries through daily updates on its corporate intranet, web site and mediabroadcasts in addition to newsletters,employee investment account solicitationsand corporate publications.US BANK NA21. Defendant US BANK, NA is a Delaware Corporation organized under theNational Bank Act, 12 U.S.C. §§ 21-216d, headquartered at U.S. Bancorp Center800 Nicollet Mall , Minneapolis, MN 55402.808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8491

PRIVATE CLIENT GROUP, CORPORATE TRUST,INSTITUTIONAL TRUSTAND CUSTODY, AND MUTUAL FUND SERVICES, LLC22. Defendant PRIVATE CLIENT GROUP, CORPORATE TRUST,INSTITUTIONAL TRUST AND CUSTODY, AND MUTUAL FUND SERVICES,LLC. (hereafter “defendant LLC entity”) is a trust subsidiary of US BANCORPNA. , headquartered at U.S. Bancorp Center 800 Nicollet Mall, Minneapolis, MN55402 doing business in several states with an office at one US Bank Plaza, St.Louis, MO and at all times relevant to this matter was the entity responsible forsetting up escrow accounts for MSCI. The defendant LLC entity was representedto be independent and free standing by its Vice President Brian Kabbes.23. Defendant LLC entity is the division of US BANCORP NA responsible forescrow accounts and trust accounts of hospitals and healthcare systems undercontract with Group Purchasing Organizations responsible for limiting orobstructing market accessUS BANCORP PIPER JAFFRAY, INC.24. Defendant US BANCORP PIPER JAFFRAY, INC. is the investmentbanking subsidiary of US BANCORP NA. US BANCORP PIPER JAFFRAY, INC.does business in Kansas through its investment banking offices and licensed andregistered securities brokers. Defendant US BANCORP PIPER JAFFRAY, INCcorporate headquarters are at U.S. Bancorp Center 800 Nicollet Mall Suite 800Minneapolis, MN 55402.25. Defendant US BANCORP PIPER JAFFRAY, INC. has had underwritingand investment relationships with healthcare suppliers, including biotechnologyproducers and medical device manufacturers. Defendant US BANCORP PIPERJAFFRAY, INC. has investments in, underwritten and promoted the capitalizationof biotechnology producers, including Omnicell, Inc. i and medical devicemanufacturers including Aspect Medical Systems, Inc. ii of Newton, MA, that908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8492

have engaged in anti competitive “sole” or “single source” contracts with healthsystems including Health Services Corporation of America of Cape Girardeau,MO that plea bargained a conclusion to a federal fraud investigation in 1997 iiiand Group Purchasing Organizations held responsible for preventing competitiveaccess to suppliers and creating unnecessary increases in healthcare supplycosts iv including AmeriNet, Inc. v of St. Louis, MO., Healthtrust PurchasingGroup . vi26. Defendant US BANCORP PIPER JAFFRAY, INC. has underwriting andinvestment relationships with healthcare Group Purchasing Organizationsincluding Novation, Inc., a healthcare GPO currently the subject of Federal TradeCommission and General Accounting Office investigations into whether it holdstoo much control in the market for hospital supplies.vii Defendant US BANCORPPIPER JAFFRAY, INC. has underwriting, promotional and investmentrelationships with Neoforma, Inc. an internet supply chain software and electronicmarketplace similar to MSCI but which is 60% owned by the above mentionedNovation, Inc. (UHA and VHA owned shares combined as of 8/9/02) and limitssupplier access. Novation used tens of millions of dollars it held in custody andtrust for its hospital customers to purchase the equities in the publicly traded,money-loosing electronic commerce company, Neoforma Inc,viii27. Defendant US BANCORP PIPER JAFFRAY became attracted to the profitopportunity in internet delivery of medical supplies to hospital health systemsapproximately 5 years after Sam Lipari started developing software to order andtrack medical supplies from pc computers dialing up internet connections and1008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8493

exchanging data with hospital mainframe computers. In February of 2000, USBANCORP PIPER JAFFRAY released a study it had commissioned thatconcluded similarly to Sam Lipari’s analysis that 13% of what US BANCORPPIPER JAFFRAY then estimated to be $83 billion dollars spent annually could beeliminated if supplies were purchased through the internet. US BANCORPPIPER JAFFRAY’s Senior Analyst Daren Marhula estimated $23 billion of thetotal spent on medical supplies is pure process and procurement costs, andabout half of this cost could be eliminated by ordering supplies over the Internet.Roughly half of hospital supplies, for instance, are for routine purposes, such asoffice, janitorial and medical items that can easily be purchased through theInternet. However, US BANCORP PIPER JAFFRAY had failed to realize theimplication of strategic management when the purchaser was able to utilizeartificial intelligence to optimize purchase negotiations and quantity deliverythroughout the complete supply chain and backed companies with businessmodels incapable of creating the value and cost savings of Medical Supply Chainincorporated in the same year to provide a commercial platform for Sam Lipari’sresearch and development work.28. The defendant US BANCORP PIPER JAFFRAY invested in, underwroteand promoted companies providing internet or web based software to helphealthcare systems mange their purchasing, including Embion, Inc. (which USBANCORP PIPER JAFFRAY raised 10 million dollars for) ix or Centromine, toimprove their service delivery. Several did not make it to the IPO stage and USBANCORP PIPER JAFFRAY has difficulty maintaining the good will of its venture1108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8494

fund investors. x Some companies made it to the public offering stage likeEclipsys Corp to have their shares promoted and marketed for 125 million dollarsby US BANCORP PIPER JAFFRAY only to fall drastically in value like uponrevelation of sharply lower financial expectations then investors had been lead tobelieve. Now US BANCORP PIPER JAFFRAY is embroiled in numerous investorlaw suits for irregularities in its promotion of IPO capitalization equity shares.29. In both healthcare supplier and healthcare electronic commerce firms, thedefendant US BANCORP PIPER JAFFRAY concentrates its investments in earlystage firms that partner with existing dominant healthcare suppliers anddistributors. US BANCORP PIPER JAFFRAY publicizes these relationships as itsolicits and promotes investment in the venture funds US BANCORP PIPERJAFFRAY uses for their capitalization. US BANCORP PIPER JAFFRAYpublicized a high profile merger Eclipsys Corp with the GPO controlled Neoformato dominate the healthcare supply electronic marketplace xi . Later, the mergerwould terminate and Eclipsys Corp and Neoforma would announce a mutualalliance to dominate online healthcare supplies utilizing their existing dominantGPO partner; Novation. xii The existing dominant healthcare suppliers anddistributors co-opt the business model development of the healthcare electroniccommerce firms into channels to push a limited sub set of products whosesuppliers are allied with the established partnering firms, creating only additionaldimensions to the anticompetitive market. The technology for web based supplychain management merely becomes Internet storefront faces for existingmonopolistic suppliers motivated to increase costs as they do in their traditional1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8495

GPO distribution channels. Whatever potential exists in the still nascenttechnologies of MSCI’s potential competitors like MedCenterDirect.com xiii (initiallygiven 30 million dollars in early stage capital) to provide widespread cost savingsand obtain high rates of adoption is subordinated by the defendant USBANCORP PIPER JAFFRAY’s use of anticompetitive business practicesincluding sole source or exclusive dealing contracts, and vertical exchange ofstock ownership with established dominant suppliers, distributors and theircorporate officers to inflate the value of its equity funds and offerings.UNKNOWN HEALTHCARE ENTITY30. Defendant UNKNOWN HEALTHCARE ENTITY is believed to be asupplier or purchasing organization who has communicated with US BancorpNA, its employees or its subsidiaries about MSCI for the purpose of obstructingor delaying MSCI’s entry into commerce. Defendant UNKNOWN HEALTHCAREENTITY and its corporate executives and directors are assisted by USBANCORP NA in obtaining ownership shares in companies DefendantUNKNOWN HEALTHCARE ENTITY allows to enter the healthcare supply chainmarketplace.INDIVIDUAL US BANCORP EMPLOYEES31. Defendant JERRY A. GRUNDHOFER, the President and Chief ExecutiveOfficer of US BANCORP NA and at all times relevant to this action was thecontrolling officer of US BANCORP NA. Defendant JERRY A. GRUNDHOFERwas in communication with MSCI regarding the action of US Bank trustdepartment in St. Louis rejecting MSCI escrow accounts and MSCI’s efforts toreverse or remidiate the decision. Defendant JERRY A. GRUNDHOFER directlysupervised Defendant ANDREW CESERE. Defendant JERRY A.1308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8496

GRUNDHOFER acquired Piper Jaffray and renamed the subsidiary USBANCORP PIPER JAFFRAY and oversaw the units anticompetitive businesspractices, including setting revenue goals and providing finincing and guaranteesfor US BANCORP PIPER JAFFRAY healthcare supplier and distributionintegration and combination. Defendant JERRY A. GRUNDHOFER refused toreview the decision to deny services and critical facilities to MSCI or to participatein a fact finding effort to clear up the problem without litigation.32. Defendant ANDREW CESERE is identified as Vice Chairman of USBancorp trust division by the US Bank website and at all times relevant to thisaction was a senior controlling officer of US BANCORP in communication withthe US Bank trust department in St. Louis regarding the acceptance of MSCIescrow accounts and MSCI’s efforts to reverse or remidiate the decision.Defendant ANDREW CESERE would not take calls or return them form PlaintiffMSCI. Defendant ANDREW CESERE directed LARS ANDERSON, SUSANPAINE and BRIAN KABBES not to reverse their decision on MSCI and not toperform the required dilligence on MSCI to meet the standard of expectation ofproviding a professional service or their duties under the USA PATRIOT Act.33. Defendant SUSAN PAINE is the supervisor for US BANK’s St. Louis, MOcorporate trust offfice. SUSAN PAINE was identified by Defendant Brian Kabbesas being present during a conference call where Plaintiff MSCI sought to reverseor remediate the damages from Defendants and in which Defendants expressedtheir disturbance that MSCI had contacted the corporate headquarters of USBANCORP NA about the problem with setting up escrow accounts.34. Defendant LARS ANDERSON was identified to MSCI as the newcustomer acquistion manger for US BANK’s St. Louis, MO corporate trust offficeby Defendant BRIAN KABBES. Defendant LARS ANDERSON stated he madethe decision not to provide escrow account services to MSCI.1408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8497

35. Defendant BRIAN KABBES identified himself as Vice President ofCorporate Trusts for US BANK. Plaintiff MSCI was referred to Brian Kabbes forescrow account services by its neighborhood US BANK branch in Independence,MO and later when MSCI was again referred to Defendant BRIAN KABBESwhen MSCI sought to establish a Kansas escrow account after having difficultywith the St. Louis corporate Trust Department. Defendant BRIAN KABBESprovided a review of Plaintiff MSCI’s proposed escrow account agreement andsuggested changes to meet US BANK’s acceptance. Defendant BRIAN KABBESreviewed an approved the escrow account agreement with his name on it asescrow agent for US BANK , along with the changes to make it correct fortransmittal to MSCI’s ten known selected candidates with their certificationcontract. After the escrow agreements were sent to the candidates DefendantBRIAN KABBES contacted Sameul Lipari of MSCI to inform him US BANK wouldnot host the escrow accounts because of the USA PATRIOT Act. DefendantBRIAN KABBES maintains the he and Samuel Lipari had not reached an oralcontract for service and that reservation for additional approvals were part ofearlier conversations.STATEMENT OF FACTS36. On or about 3/12/2002, and following 3 years of R&D Sam Lipari,President and CEO of Medical Supply Chain, Inc. (MSCI) began a process ofselecting a corporate bank for the rollout of its healthcare supply chainempowerment program that produces significant benefits to healthcare and itspatients. He sought input from associates and advisors concerning selection of1508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8498

an appropriate national bank that would be capable of a full range of corporatebanking services, including nation wide checking, escrow services, short andlong term credit facilities, receivables financing and international clearing oftransactions between thousands of health systems and their suppliers. Severalnational banks were evaluated but US BANCORP NA was selected because italso had an investment arm called US BANCORP PIPER JAFFRAY that hadtargeted healthcare customers and participated as underwriter and fundsmanager for pre IPO healthcare manufacturers and service providers and USBANCORP NA acted as underwriter for corporate bonds of healthcarecompanies.37. On or about 4/15/02 Sam Lipari arranged for MSCI’s corporate account tobe opened at US BANK’s SW Topeka branch. The account was opened in thename of Medical Supply Chain, Inc., using MSCI’s federal tax I.D. number with acashier’s check in the name of MSCI’s agent and drawn on Miner’s State Bank ofFrontenac Kansas for $7,500.00.38. On or about 4/25/02 Sam Lipari opened a personal account in his name atUS BANK’s neighborhood branch at 3640 S. Noland Road, Independence, MO.Before opening the checking account, the US BANK employee reviewed SamLipari’s account application and submitted Sam Lipari’s personal data to ChexSystems, Inc. for a background check, evaluation and verification of eight yearsof his previous banking history at other banking institutions. Sam Lipari wasapproved for a personal checking account and an electronic debit card. Sam1608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8499

Lipari initially used the personal account to pay expenses of MSCI withreimbursement from the corporation.39. On 6/5/02 Sam Lipari contacted US BANCORP PIPER JAFFRAY’SMinneapolis headquarters to speak to Heath Lukatch, managing director of theUS BANCORP PIPER JAFFRAY healthcare venture fund about MSCI beingconsidered as a venture capital candidate. He was instructed to send anexecutive summary of his business plan via email. Sam Lipari sent the summaryand financial projections for MSCI with a restriction on disclosure notice. USBANCORP PIPER JAFFRAY made no response to the receipt of the executivesummary and financial projections from MSCI’s business plan. Sam Lipari againtelephoned the Minneapolis offices of the US BANCORP PIPER JAFFRAYventure fund managers and his calls were not taken and not returned. Sam Liparialso attempted to speak to a US BANCORP PIPER JAFFRAY venture fundmanger in their San Francisco office but again, his calls were not taken orreturned.40. On 7/9/02 Sam Lipari and MSCI were visited by a Merger and Acquisitionsattorney for another San Francisco venture capital firm and after extensivediscussions with her at MSCI’s Blue Springs, MO headquarters on the need toquickly enter the healthcare supply chain market and take advantage of theopportunity created by the healthcare industry’s sudden willingness to reject theexisting Group Purchasing Organizations, and after the New York Times hadbegan uncovering corruption revelations in the market. However the discussionsrevealed the current condition of venture funding and IPO underwriting was very1708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8500

troubling. At the time of these meetings the first news of WorldCom’s debaclewas breaking. MSCI’s management felt with the exception of US BANCORPPIPER JAFFRAY, which concentrated its investments in healthcare, that much ofthe assets venture funds reported were in fact overvalued equities in telecomtechnology companies and that the collapse of WorldCom would further depressthe venture capital markets.41. The venture capital M&A attorney questioned Sam Lipari about theovertures of large companies seeking to acquire MSCI. Sam Lipari recounted thecontacts made with Supply Solution, a Michigan based company focused onexpanding integration in the healthcare industry, GoCoop/Avendra a Floridabased company providing e-procurement/group purchasing in the hospitalityindustry and also wanted to integrate in the healthcare industry, both of whichwere seeking go to market partners in healthcare, and Cerner, a Kansas Cityhealthcare company with enterprise resource planning software that is based onan older operating system, called EDI that is inferior to MSCI’s web basedservices and poorly suited for electronic commerce. Cerner had bought out MitchCooper & Associates, a healthcare supply chain consulting company andseemed to be trying to acquire the capability to create an electronic healthcaremarketplace. Sam Lipari told the VC attorney that MSCI would not compromiseitself by being aligned with any existing healthcare supplier. MSCI has thesolution and he did not want to be tainted with companies that support the highcost healthcare problem. He also recounted how start up healthcare electronicmarketplace firms with technology similar to MSCI like Impact Health and1808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8501

Medibuy had been bought up by GPOs for tens of millions of dollars, but thatonce they were no longer independent, their market potential was eliminated andthe technology was used by GPO firms to deceive health systems into thinkingtheir GPO partner was attempting to increase its economic efficiency when in factthey continued to restrict trade in support of monopolizing markets.42. MSCI resolved to develop a way to internally capitalize a roll out of itssupply chain empowerment program and supply chain management technology.MSCI settled on a plan that would utilize the value of its healthcare supply chainintellectual property and offer a comprehensive year long education andhealthcare supply chain certification program to independent representatives.43. This plan would put representatives in the field nationwide that possessthe knowledge and skills to relate to all levels of management in healthcaresystems and assist in the adoption of MSCI’s supply chain empowermentprogram. The independent representatives would pay for their certification andfund their own marketing and sales operations, consistent with distributionsystems that rely on independent manufacturer’s representatives. Since MSCI’sweb services were new to the market, Sam Lipari decided that it would be criticalfor the certification fee to be held in escrow until the candidates had a chance tomeet MSCI’s certification team and have a chance to see if they would succeedin mastering healthcare supply chain empowerment knowledge. After a weeklong intensive seminar, the candidates would have the opportunity to decidewhether or not to commit to the certification program and MSCI would have theopportunity to reject any candidates it felt would not succeed in the program.1908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8502

44. MSCI developed a curriculum and contracted with the industry’s foremostlogistics and supply chain experts to provide instruction during the weeklongseminar and assist and advice candidates throughout the certification process.MSCI made arrangements to include information and presenters from companieswith expertise in financial analysis of healthcare purchasing, including strategicsourcing and human resource evaluations so that the representatives would beable to represent products and technology services outside of MSCI’s capabilitiesthat would complement MSCI’s supply chain empowerment program in allowinga health system/hospital to break free of its GPO supplier.45. Beginning 8/1/02 MSCI advertised nationwide to recruit experiencedaccount executives and sales professionals and processed hundreds ofapplicants with detailed evaluation of resumes, job history and financialdisclosure applications. For the first of what were to be quarterly classes, MSCIselected 15 candidates that had the potential to succeed as independentrepresentatives for its services. After numerous telephone interviews tenapplicants had committed to becoming certification candidates and attend thecertification class starting the first week of December/02. During this same time,MSCI was preparing the escrow account system that the candidates wouldutilize.46. On or about 10/1/02 MSCI contacted Chris Walden of the Noland Road,Independence MO branch of US BANK for direction on escrow accounts andcommercial banking services. MSCI was referred to Becky Hainje a USBANCORP “Private Banker” and on or about 10/3/02 Becky Hainje contacted2008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8503

Sam Lipari and told him she would arrange to put him in contact with the personsin different departments of US BANK that could provide MSCI the services MSCIrequested and needed. She connected MSCI with Brian Kabbes in St. Louis whowas responsible for US BANK commercial trust accounts in Missouri andKansas. She also connected MSCI with Douglas Lewis, responsible forcommercial loans in the Noland Road office.47. Sam Lipari described MSCI’s need for escrow accounts to Brian Kabbesand emailed him an escrow contract that MSCI counsel had prepared for itscandidates. Brian Kabbes asked questions about the candidates, the certificationprogram and how many candidates had been selected so far. Sam Liparinegotiated with Brian Kabbes to reduce the escrow fee per account since allescrow accounts would be identical, and US BANK had refused to have thefunds in a single account. Brian Kabbes agreed to lower the fee for US BANKSescrow agent services from the normal of $1,500 to $600 per account and nohidden or additional transaction or dispersement fees.48. After reviewing the escrow contract, on or about 10/5/02 Brian Kabbescommunicated to Sam Lipari that the language of paragraph 10 “SecurityInterests” should be changed so that a security interest for US BANK could becreated in the $5,000 portion of the escrow that became MSCI’s property themoment a candidate submitted their certification funds into escrow. MSCI alteredits escrow contract to conform to Brian Kabbes’ s suggestion and on or about10/7/02 emailed the changes to Brian Kabbes. Brian Kabbes and US Bank were2108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8504

identified as the escrow agent in the escrow agreement and Brian Kabbes’address was included in the body of the agreement.49. On or about 10/8/02 Sam Lipari spoke again to Becky Hainje aboutMSCI’s need for a business line of credit based on the MSCI portion of theescrow assets. Becky Hainje said she had talked to Brian Kabbes and he hadtold her there would be no problems with the escrow accounts, that they were a“slam dunk.” She suggested Sam Lipari call Doug Lewis and make anappointment to apply for the line of credit, which was based on the escrowaccount assets.50. On or about 10/9/02 Brian Kabbes called to request an additional changein the escrow contract. He supplied a specified US Treasury fund investmentlanguage for the funds while the funds were in the custody of US BANK TRUSTDEPARTMENT. MSCI agreed to the additional change and modified theinvestment instructions exactly as Brian Kabbes instructed. MSCI also ask ifthere were any other changes needed before MSCI sent the contracts out to itscertification candidates. Brian Kabbes said there would be no other changes andasked why MSCI was sending the candidates the escrow contract. MSCIexplained that the contracts were going out with the certification programagreement so candidates would have a chance to review the information beforetheir November 1 st deadline, which required their funds to be in the US BANKescrow accounts. Brian Kabbes acknowledged the explanation and agreed tolook over the release document MSCI developed that candidates would executefollowing the weeklong evaluation seminar to be held the first week of December.2208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8505

51. During this conversation, Brian Kabbes also requested MSCI’s currentcorporate good standing documentation from the Missouri Secretary of State’sOffice. MSCI agreed to send him the reinstatement and tax clearance documentson Friday 10/11/02 and that Sam Lipari was meeting with Doug Lewis on theafternoon of Thursday 10/10/02 to set up the credit facility using the escrowaccounts as security. Sam Lipari told Brian Kabbes he would have Doug Lewissend the requested information to Brian Kabbes on 10/11/02. Brian Kabbesmade no statement that US BANK had yet to approve MSCI ‘s escrow accountsand sought no additional information.52. On or about Thursday 10/10/02, Sam Lipari delivered the MSCI businessplan and associate program to Douglas Lewis, at the US BANK, Noland roadoffice to apply for the agreed upon commercial line of credit based on the portionof the escrow accounts MSCI would retain. The business plan and associateprogram booklets each had cover pages giving notice of restricted use and thatMSCI protected the confidential business trade secret and intellectual propertycontained in them. A letter of introduction also stated the contents were protectedand restricted disclosure and possession of the materials. Two more folderscontained the good standing documentation Brian Kabbes requested and theassociate program contracts that were sent to the candidates. Doug Lewis askedhow many candidates MSCI had and Sam Lipari reached into his brief case andheld up the ten folders of applicants who had committed to sending in their fundsby November 1 st and five others who were in the final stages. Sam Lipari furtherexplained that he planned to start a new certification group each quarter. Sam2308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8506

Lipari was given a loan application and agreed to and did return the applicationthe next day.53. On or about Tuesday 10/15/02 Brian Kabbes called Sam Lipari andinformed him that US BANK had turned down the escrow accounts because ofthe USA Patriot Act. When asked to clarify, he said the know your customerrequirements had changed and US Bank could not set up the escrow accountsfor MSCI. Sam Lipari was shocked and stunned and handed away the phone,where Brian Kabbes repeated again The Patriot Act as the reason the accountswere denied.54. Later that morning Sam Lipari called Becky Hainje and asked if she couldsee what happened. Sam Lipari explained that MSCI was counting on the escrowaccounts and that the line of credit depended on them too. He said he could notbelieve the USA Patriot Act could be a reason that applied to MSCI. She said shewould call and see what happened. Becky Hainje called back and left a tapedrecording on the MSCI answering system and listed the reasons Brian Kabbestold her. She said the reasons were the lack of a “relationship with the Bank...that the principals involved with the business were people unknown to the bank,but the main reason is to know your customer "Patriot Act" that was enacted after9/11, and which we could not really give all the correct answers on the sourceand flow of money.55. On or about 10/15/02 MSCI found ANDREW CESERE was the head ofUS BANCORP trust department on the US BANK web site and at 4 p.m. calledhis secretary Barb in Minneapolis. He was unavailable so MSCI asked her to2408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8507

leave instructions for him to call Sam Lipari about MSCI’s corporate escrowaccount rejection at 9 a.m. the following morning. Barb asked for more detailsconcerning the problem. She said Mr. Cesere had a morning meeting but shewould get the message to him. At 4:30 p.m. she called back and asked foradditional information and the names of the people MSCI had dealt with so thatMr. Cesere could inquire about the problem.56. At 9 a.m. the following morning on or about 10/16/02 Ed Higgens called,leaving a tape-recorded message on MSCI’s answering system identifying himas the executive vice president of Midwest trusts for US BANK.Sam Lipari, believing that the USA Patriot Act had probably been used to rejectthe escrow accounts because of his family sir name which is also the name of asmall group of Islands in the Mediterranean Sea and which ends in “ari” likemany Moslem sir names of people of Arabic descent, activated a tape recorderwith a built in microphone and called Mr. Higgens back on the speaker phone.Each subsequent call to US Bank in which Sam Lipari participated was alsorecorded by him to document what he suspected was discrimination based on hisnational origin or ethnic descent.57. Ed Higgins listened to Sam Lipari after stating he was an attorney andhow long he had been working in trust banking, agreed with him that he saw noreason why the USA Patriot Act would apply to MSCI. Sam Lipari explained thatMSCI needed additional US BANK services including credit facilities, receivablesfinancing and clearing and settlement services for approximately 90 million worth2508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8508

of transactions in the first year of operations. He said he would check into thematter and call Sam Lipari back later that day.58. Instead Brian Kabbes called back with Lars Anderson who he identified ashead of corporate trust new business development person and Susan Paine whohe said he reported to, both on the line with him. MSCI explained that at the timeof his previous call, it was not realized that the escrow account contracts that USBANK had approved had already been sent out to the candidates in reliance onUS BANKS agreement to host the escrow accounts.59. Lars Anderson expressed some irritation that MSCI had contacted thehead of the trust unit about the rejection of escrow accounts. Lars Anderson saidthe bank had never been on board and it was not a done deal. Brian Kabbesdenied that there had been an agreement; he said he had twice told Sam Lipari.Lars Anderson said that there had never been a signed off agreement to providethe service and that there had never been any bid for it. MSCI contradicted thatand said the price for the service had been quoted by Brian Kabbes and afternegotiating, a specific amount had been agreed upon. Sam Lipari also told themBrian Kabbes provided and requested changes to the escrow and that BrianKabbes had told Becky Hainje it was a “slam dunk.”60. During the call MSCI attempted several times to work out anymisunderstandings and set up at least the 10 accounts MSCI had relied on USBANK for and that US BANK had known about and that MSCI was now in dangerof being irreparably harmed. MSCI stated that the Patriot Act did not apply andthat MSCI was in actuality an established US BANK customer and that MSCI had2608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8509

een in a trust relationship with US BANK and the bank even had its businessplan and information about its proprietary business model. Brian Kabbes saidthat the trust department was a stand-alone unit and had its own criteria foraccepting customers. US BANK refused to reverse its decision.61. MSCI pointed out that it had not received a true reason for denial of theaccounts and that the reason given was a pretext at best. Viewing US BANK’sactions, MSCI stated they could only be explained by a conflict of interest due toUS BANCORP’s existing healthcare investments and involvement.MSCI felt extremely disturbed by the apparent out come of this situation, therewas not enough time to establish a new banking relationship with anothernationally recognized Bank and MSCI would loose substantial momentum. MSCIhad spent several months building up to roll out it’s supply chain empowermentprogram and felt to change a trust relationship in the middle will be devastating toit’s entry to market. MSCI researched over 300 resumes only to find 30 thatappeared to be qualified.62. On or about 10/17/02 Sam Lipari telephoned Douglas Lewis and told himwhat had happened. Doug said he had sent Brian Kabbes the good standingdocumentation but not the business plan and associate program. Sam Lipariinstructed him not to send the business plan and associate program materials tothe corporate trust office of US BANK in St. Louis. He told Douglas Lewis thatMSCI would be litigating over the escrow decision and planned to renew itsapplication for a line of credit once it had the situation straightened out. SamLipari suggested he might find another bank but Douglas Lewis said that would2708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8510

make the line of credit difficult. Sam Lipari further instructed Douglas Lewis tohold on to the materials and keep anyone else from having access to them.Douglas Lewis agreed and stated he would keep the business plan materialssafe.63. On or about 10/18/02 MSCI drafted a letter and sent it to Jerry A.Grundhofer, the President and Chief Executive Officer of US BANCORP NA witha copy being sent to Andrew Cesere, explaining the staggering damages USBANCORP would be liable for in imminent litigation due to the refusal to provideescrow accounts to MSCI. MSCI suggested an alternative of fact findingdepositions to take place in St. Louis, MO before the end of the day Tuesday10/22/02, believing US BANK to be misinformed about the USA Patriot Act andany reason for denying the escrow accounts.64. US BANCORP Trust Department corporate counsel replied Friday10/18/02 via fax and priority delivery with a letter denying US BANCORP NA wasin contract with MSCI and that if any law suit is filed to address service for thetrust department to her at her office.65. MSCI called the trust department counsel Monday10/21/02 to ask forservice addresses of the other named entities and employees. She said thesame address would be good for all and then proceeded to ask what the causesof action were. MSCI explained that it was chiefly an antitrust action based on theSherman, Clayton and Hobbs Act and that causes of action under the USAPatriot Act were also a basis for the suit. She was surprised MSCI was told theUSA Patriot Act had been given as the reason for the denial of escrow account2808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8511

service but reiterated that there was no contract in her view and she saw nobasis for the other causes of action. MSCI stated that it would fax the complaintto her at the time the action was filed at the end of business Thursday 10/24/02,but they were still waiting for Mr. Gunderson to select the alternative of mutualfact finding to promote a resolution of the matter without litigation. She stated thatthe depositions would not lead to any meaningful explanation, that we had herletter explaining US BANK’s reason for denying the escrow accounts and that thebank reserved the right to choose whom it served. MSCI reminded her that USBANCORP had extensive investments in healthcare and that choosing not toprovide a service to a competitor is actionable under antitrust law.66. She warned MSCI not to contact anyone at US BANK and said if MSCIfiled an action against US BANCORP NA, she would send a letter to the judge inadvance of her answer to our complaint saying we had ex parte communications.MSCI stated that it had not had any communications with US BANK employeessince receiving her reply on Friday 10/18/02. However, MSCI was an accountholder at US BANK and would continue to have communications with US BANKregarding its other bank business. MSCI reminded her that US BANCORP hadextensive investments in healthcare distributors and that choosing not to providea service to a competitor is actionable under antitrust law.67. MSCI contacted an attorney, familiar with the healthcare supply chainresearch and development done by Sam Lipari at the law firm of Shook Hardyand Bacon and asked if his firm could act as escrow agent for accounts to be set2908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8512

up in US BANK. He said the bank is better prepared to provide escrow servicesand declined to act as escrow agent.68. On Thursday 10/24/02 MSCI filed for urgent injunctive relief against USBANCORP NA, its subsidiaries and named employees. MSCI counsel contactedUS BANK counsel Kristin Strong to clarify the clerk of the court’s questioning ofservice and to attempt to schedule a hearing. Ms. Strong said she would call thefollowing morning Friday 10/25/02 to answer the question about service. She didnot call and took the day off. MSCI counsel called her on Monday morning10/28/02 at which time she said the case had been transferred to outside counseland gave the phone number to MSCI.69. On or about 10/28/02 MSCI contacted US BANCORP’s retained counseland explained that there were questions about service and that MSCI wasseeking to schedule a hearing that week for its requested relief to stop the harmit was suffering and to avoid a terminal outcome for the company. USBANCORP’s counsel said he had to travel and was unsure of his schedule but bythe next day he might know of a time he could make a hearing. Without hearingfrom the opposing counsel, MSCI became concerned and sent an email on orabout 10/29/02 suggesting portions of the injunctive relief it seemed likely the twoparties could agree on and explaining the harm it was suffering and whatdelaying the relief beyond critical dates would inflict on MSCI, its associates andcustomers.70. The email explained the losses as follows: the damages of failing toreceive the $350,000 to $450,000 it depended on November 1 st and the resulting3008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8513

effects of that delay on its projected financials including lost profit of$51,795,005.00, lost increase in average valuation of $155,385,015.00,Candidate lost revenue of $15,499,788.00. The email explained that theseinjuries would be far greater if a December 1 st deadline is missed. However, if thecompany does not recover from US BANK’s denial of the escrow accounts thetotal third year losses of the company would be as follows: lost profits$51,795,005.00, loss of increased company avg. valuation of $155,385,015.00,Candidate lost revenue of $15,499,788.00 and Customer losses of$697,486,200.00.71. On or about Wednesday 10/30/02, US BANCORP’s counsel sent a letterto the court dismissive of MSCI’s complaint and stating that it would oppose allrequested relief.72. On or about Thursday 10/31/02, MSCI called US BANCORP’s counselexplaining the necessity of the relief sought and specifically the relief requestedunder paragraph 66 seeking to stop US BANK from reporting negativeinformation about MSCI under the USA PATRIOT Act. US BANCORP’s counselreiterated his belief MSCI needed to find another bank and that no liabilityexisted. MSCI’s counsel explained that Sam Lipari will not risk a hundred milliondollar company that requires high level banking services to future damage from asecret USA Patriot Act report that has misinformation in it and would create ablack mark preventing them from ever being able to do any business. USBANCORP’s counsel said it would not agree to even just the relief sought inparagraph 66. MSCI asked US BANCORP’s counsel if his firm would act as an3108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8514

escrow agent for accounts to be deposited in US BANK, since Shook Hardy andBacon had declined to do so. US BANCORP’s counsel refused to do so statingthat US BANK did not owe any duty to MSCI.73. Realizing there was no immediate solution to this matter, and the fact thata previous business model pricing system developed by Sam Lipari in 1995 wasappropriated by HSCA and MEDECON through exploitation of a confidentialbusiness relationship and then taken later by many other GPOs; on or about11/6/02 Sam Lipari visited US Bank, Noland road branch to retrieve thedocuments left by him following the meeting with Doug Lewis on 10/10/02. DougLewis gave the documents back to Sam Lipari. Sam Lipari specifically ask if thedocuments were copied or faxed and Doug Lewis said he put all of theinformation in his analysis and Sam Lipari left the bank. Upon returning to MSCI’soffice Sam Lipari Inspected the documents and found that the binders had beenseparated and copies or faxes had been made of the associate program and thebusiness plan documents. There are tractor marks from a copy or fax machineon the back of all the pages. The documents relating to the escrow agreementassociate program application, and certification contract were not faxed orcopied. There were no marks on the back of these documents.74. MSCI is now fearful of where these documents were sent or who hasreviewed them. The documents that were copied or faxed contain all confidentialdetails to the business, business model, management team, investors, industryexperts, advisors, business practices, market strategies, revenue model, servicestructure, formula, algorithms and financials including 5 year details, 5 year3208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8515

condensed and break even analysis. Sam Lipari is fearful this information will fallinto the wrong hands further blocking or eliminating entry to market.75. On or about 11/7/02 Sam Lipari received a complimentary D&B reportdated 10/31/02 on MSCI. The report indicated MSCI started in 2000 and has aclear credit history and a strong financial condition.CAUSES OF ACTIONCOUNT I: VIOLATIONS OF THE SHERMAN ANTITRUST ACT76. Plaintiff re-alleges paragraphs 1-75 above.77. Defendants have violated Section 1of the Sherman Anti Trust Actprohibition against combination or conspiracy, in restraint of commerce.78. Defendants are a vertically integrated commercial banking, privatebanking, trust and investment banking concern with investment and underwritingtrade concentrated in the healthcare supplier market. In this specific market ofcompanies supplying new products, services and technology, new entrants aredependant on the approval and endorsement of the Defendants to healthcaresupply distributors dominated by Healthcare Group Purchasing Organizations orGPO’s due to the Defendants’ monopoly power.79. Defendants are believed to be the largest holder of healthcare supplierequity issues through their direct investments and the investments of funds theymanage. Defendants are believed to be the largest promoters of healthcaresupplier stock issues and provide the largest amount of industry analysis forinvestor evaluation of healthcare supplier stock issues. On information and belief,US BANCORP NA, US BANK, PRIVATE CLIENT GROUP, CORPORATE3308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8516

TRUST, INSTITUTIONAL TRUST AND CUSTODY, AND MUTUAL FUNDSERVICES, LLC and US BANCORP PIPER are alter egos of each other in thatthey now and at all relevant times (a) held themselves out to the public as asingle, integrated, full-service, professional business enterprise; (b) completelydominated and controlled each other’s assets, operations, policies, procedures,strategies, and tactics; (c) failed to observe corporate formalities; (d) and usedand commingled the assets, facilities, employees, and business opportunities ofeach other, as if those assets, facilities, employees, and business opportunitieswere their own -- all to such an extent that any adherence to the fiction of theseparate existence of any of these defendants distinct from the others would beinequitable, would permit egregious wrongdoers to abuse a corporate, limitedliability corporation, and/or similar privilege of limited liability, if any, and wouldpromote injustice by allowing these defendants to evade liability or veil assetsthat should be attachable.80. Defendants’ predatory practices in the capitalization of healthcaresuppliers have been found to be in violation of regulatory statutes. In June of2002, US BANCORP PIPER JAFFRAY was censured and fined $250,000.00 bythe National Association of Securities Dealers for threatening to denyAntigenetics, Inc. a critical service of analyst coverage if it did not select USBANCORP PIPER JAFFRAY as a lead underwriter for a second issuing ofstock. xiv81. US BANCORP has participated in underwriting syndicates for 131 IPO’sworth nearly 10 billion dollars since January 1999. xv US BANCORP is named as3408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8517

a defendant in shareholder law suits investigating US BANCORP’s role in ascheme to allocate equity shares of Commerce One to particular customers onthe condition that these customers would then buy additional equity shares in thesecurities markets at agreed upon times to create a false increase in the prices ofCommerce One shares. xvi Commerce One is an electronic marketplacetechnology company providing supply chain management services in thebusiness to business market and specifically through Medibuy in a “strategicrelationship” to provide these services to healthcare facilities. Medibuy is apartner of the largest GPO which is also the main subject of federal healthcaresupply marketplace inquiry, Premier, Inc. Medibuy is also the exclusive e-commerce supplier for HCA.82. The Defendants maintain control over the day-to-day operations ofhealthcare supplier companies they invest in or provide services for. xvii Thiscontrol extends to interlocking directors when Defendants place corporateofficers of US BANCORP NA on the boards of the healthcare suppliercorporations that the Defendants have participated with in creating anticompetitive sole source supplier contracts with healthcare GPO’s that are"agreements whose nature and necessary effect are so plainly anticompetitive . .. no elaborate study of the industry is needed to establish their illegality-they are'illegal per se.'" National Society of Professional Engineers v. United States, 435U.S. 679, 692, 98 S. Ct.1355, 1365, 55 L. Ed. 2d 637 (1978).83. The Defendants use the creation of anticompetitive sole source contractsbetween their client healthcare suppliers and healthcare GPO’s the Defendants3508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8518

have developed to promote and inflate the value of equity shares they aremarketing.The Defendants operate a conspiracy among their subsidiaries and parentcompanies and through their employees as “Persons” engaged in combinationwith healthcare GPO’s including UNKOWN HEALTHCARE SUPPLIER for thepurpose of restraining commerce. On information and belief, Defendants, inagreement, concert, and conspiracy with each other, directly or indirectlyinitiated, directed, participated in, aided and abetted, furthered, otherwisecaused, and/or concealed the anticompetitive denial of services and criticalfacilities, or related events, for the purpose of preserving their directorshipsand/or other positions with US BANCORP NA, keeping their contracts with USBANCORP NA, their income, compensation, and fringe benefits, supporting thevalue of their US BANCORP NA securities, and/or concealing their participationin and liability for anticompetitive activities.84. The Defendants prevented MSCI from establishing escrow accounts itwas intending to use as a unique banking service with special escrow accountagreements reviewed and approved by the Defendants to finance MSCI’s entryinto to commerce in competition to reduce prices and increase manufacturers ofhealthcare devices and other healthcare suppliers access to markets incompetition with sole source healthcare suppliers and healthcare GPO’s.85. The escrow account contracts are novel and could not be duplicated atanother bank in the short time between the Defendants surprise announcementthat they were not going to host the accounts, breaching their contract or duty to3608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8519

MSCI based falsely on the USA Patriot Act, and the deadlines MSCI was inreliance on for receipt of funds. The escrow accounts developed between MSCIand US BANK, along with the line of credit tying arrangement based on thecontract guaranteed portion were “unique and unusual financing terms which areunavailable from competing financial institutions.” If other financial institutionshave the required presence of bank branches and familiarity with MSCIcandidates in several states, along with commercial trust departments capable ofacting as escrow agent for accounts that provide fractional secured interests for abank commercial loan line of credit, they were not present with the capability ofputting the arrangement together in Blue Springs or Independence MO. SamLipari turned to US BANK for the escrow accounts after evaluating and visitingother banks within driving range of his Blue Springs office. US BANK’s branchoffice on Noland Rd. in Independence, MO was able to perform this customfinancial service and proceeded to do so with a regional US BANK commercialtrust office in St. Louis pooling resources for a multi state district. Once US BANKdecided to withdraw the service, there was no financial institution MSCI couldturn to that was capable of meeting its requirements in the few days remaining inwhich to get out the escrow contracts to the candidates for their examination inadvance of the November 1 st deadline. If US BANK had made its reversal earlier;there still was no competing national financial institution capable of providingsuch a complex custom service without having a pre-established bankingrelationship. US BANCORP NA was a financial institution lending upon a unique,novel or custom escrow financial instrument in the commercial money market3708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8520

with sufficient economic power to give rise to a claim under the Sherman Act ascontemplated in United States Steel Corporation v. Fortner Enterprises, Inc., 429U.S. 610, 51 L. Ed. 2d 80, 97 S. Ct. 861 (1977).86. Defendants through their financial institutions act as a supplier of financialservices to companies in the healthcare industry. Defendants own and controlother supplier companies including medical device manufacturers, biotechnologyproducers, healthcare distributors and health system end users. Defendantshave conspired with, aided and abetted and participated in the financing of effortsto limit or prevent competition in healthcare supply. Defendants have preventedMSCI from entering the healthcare supply market by refusing to act as a supplierof escrow accounts at any price to MSCI. Such conduct constitutes a contract,combination or conspiracy in restraint of trade in per se violation of Section 1 ofthe Sherman Act, 15 U.S.C. § 1.87. The Defendants have acted in furtherance of the combine’s conspiracy todeny MSCI access to services and essential facilities through a refusal to deal,denial of services, boycott or withholding of critical facilities which is conducted"to exclude a person or group from the market, or to accomplish some other anticompetitiveobjective, or both," DeFilippo v. Ford Motor Co., 516 F.2d 1313, 1318(3d Cir.) (citations omitted), cert. denied, 423U.S. 912, 96 S. Ct. 216, 46 L. Ed.2d 141 (1975), and is a per se violations of § 1.88. Defendants through their financial institutions have discriminated againstMSCI in provision of services and facilities in the form of the five escrowaccounts MSCI had mailed out contracts for and the five escrow accounts for3808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8521

candidates committing to payment of funds by November 1 st which MSCI was inthe process of sending contracts to and the future escrow accounts for itsongoing future quarterly medical supply chain strategist certification programs.89. The public is being severely injured by the Defendants actions in restraintof trade through their combination or conspiracy, in restraint of commerce90. MSCI has been severely injured and is in danger of further injury resultingfrom the Defendants actions in restraint of trade through their combination orconspiracy, in restraint of commerce. MSCI is now unable to meet its obligations,and risks damage to its corporate credit rating. MSCI is unable to procure anescrow agent to substitute for US BANK. MSCI is unable to meet itscommitments to independent representatives that MSCI depended on to entercommerce. MSCI is unable to produce revenue without independent consultantswho have begun its very expensive certification program. MSCI’s good will withits associates and customers has been harmed by not meeting its scheduledentry to market.91. Defendants have violated Section 2 of the Sherman Anti Trust Actprohibition against combining or conspiring with any other person or persons, tomonopolize or attempt to monopolize any part of the trade or commerce.92. Defendants have acquired, maintained and extended their monopolypower through improper means, including attempting to extort healthcaretechnology companies into using US BANCORP as the underwriter ofcapitalization against securities regulations and in denying MSCI the escrowaccounts it required to capitalize its entry into commerce through extortion under3908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8522

the color of official right-The USA Patriot Act, fraudulently invoked to tortuouslyInterfere with MSCI’s contracts and prospective contracts.93. Defendants utilize their monopoly power to foreclose competition and gaina competitive advantage for their client and associate companies, in which theyhave invested millions of dollars and on whose behalf and acting as acombination, they have attempted to destroy MSCI, a potential competitor inviolation of 15 U.S.C.S. § 2.94. The Defendants’ vertical integration is part of a calculated scheme to gaincontrol over the 1.3 trillion dollar healthcare supplier and distribution segment ofthe healthcare industry and to restrain or suppress competition, rather than anexpansion to meet the legitimate business needs of US BANCORP’s customers,exhibiting the requisite specific intent needed to show a violation of 15 U.S.C.S. §2.95. The Defendants as monopolists, or would be monopolists of thehealthcare supplier/distribution marketplace engage in predatory tactics and dirtytricks including the above mentioned extortion of business customers seekingcapitalization, “laddering” schemes to fraudulently inflate equity values ofcompetitors they own interests in. Additionally, healthcare suppliers theDefendants invest in and promote engage in anticompetitive predatory solesource contract agreements with healthcare GPOs.96. The Defendants through conspiracy and combination with healthcaresuppliers and distributors have established monopoly power and have the powerto control prices of healthcare supplies which they exercise in maintaining higher4008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8523

prices through GPO distribution channels that are higher than those negotiateddirectly by hospitals, sometimes 25% higher according to the GovernmentAccounting Office xviii and by excluding competition in violation of 15 U.S.C.S. § 2.97. Anticompetitive effects have resulted from the Defendant's actions. Newtechnologies have been prevented from entering the healthcare market to protectcompetitors with the capitalization provided by the actions of the Defendants tomake kickback payments to GPOs in exchange for sole source contracts. Thishas resulted in the unavailability of superior products and services that wouldhave been able to save lives and alleviate suffering in hospital patients98. The public is being severely injured by the Defendants actions in restraintof trade through their combining or conspiring with any other person or persons,to monopolize or attempt to monopolize any part of the trade or commerce99. MSCI has been severely injured and is in danger of further injury resultingfrom the Defendants actions in restraint of trade through their combining orconspiring with any other person or persons, to monopolize or attempt tomonopolize any part of the trade or commerce.COUNT II: VIOLATIONS OF CLAYTON ANTITRUST ACT100. Plaintiff re-alleges paragraphs 1 through 99 above.101. Defendants have denied MSCI escrow account services, a critical facilityin violation of the Robinson-Patman Act against discrimination in price, services,or facilities; 15 U.S.C. § 13 of the Clayton Antitrust Act.102. Defendants provide financial services and facilities to existing healthcaresupply market participants on the basis of those participants maintaining4108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8524

exclusive dealing arrangements. The Defendants exclusive dealing criteria isdirectly applied where Defendants make contracts and provide investment andfinancing to healthcare supplier companies the Defendants proclaim andpublicize as entering into and maintaining sole source or single source contractswith distributors and end user health systems. The Defendants publicize thisinformation to solicit subscription of stocks they underwrite and to obtainadditional investors. As a direct and proximate result of the Defendants’pervasive conspiracy to restrain trade in healthcare supplies, against theinterests of shareholders, potential investors, and the integrity of the securitiesmarket, as set forth fully above, Plaintiffs have suffered injury and damages inthe capitalization of their entry into market.103. The Defendants exclusive dealing criteria is indirectly applied whereDefendants make contracts and provide investment and financing to healthcaresupplier companies on the basis of collusion derived profits. The Defendantshave prevented MSCI from entering the healthcare supplier/distribution marketby refusing to act as a supplier of financial services and facilities in the form ofescrow accounts in violation of the Robinson-Patman Act.104. The Defendants have denied MSCI equal access to these financialservices on the basis of tying financial services to healthcare supplier anddistribution customers participating in market limitation and denial of access.105. Defendants through their financial institutions have discriminated againstMSCI in provision of services and facilities in the form of the five escrowaccounts MSCI had mailed out contracts for and the five escrow accounts for4208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8525

candidates committing to payment of funds by November 1 st which MSCI was inthe process of sending contracts to and the future escrow accounts for itsongoing future quarterly medical supply chain strategist certification program.106. Defendants provide financial services and facilities to existing healthcaresupplier market participants. Defendants own, control or have a participatoryinterest in healthcare supplier market participants that they provide financialservices and facilities to. Defendants have prevented MSCI from entering thehealthcare supply market by refusing to act as a supplier of financial services andfacilities in the form of escrow accounts. Such conduct constitutes a per seviolation of 15 U.S.C. § 13.107. The public is being severely injured by the Defendants actions in restraintof trade.108. MSCI has been severely injured and is in danger of further injury resultingfrom the Defendants actions in restraint of trade.109. MSCI is a corporation entitled to sue for and have injunctive relief, in anycourt of the United States having jurisdiction over the Defendants, againstthreatened loss or damage by a violation of the antitrust laws, including sections13 of this title. MSCI is likely to prevail on one or all of its claims against theDefendants. The danger of irreparable loss or damage to MSCI is immediate.There is a substantial threat that MSCI will suffer irreparable injury in theabsence of preliminary relief; the likely injury to MSCI is greater than that likely tobe suffered by the Defendants; and entry of the preliminary injunction would notdisserve the public interest. Lucero v. Operation Rescue of Birmingham, 9544308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8526

F.2d 624, 627 (11th Cir. 1992), reh’g denied, 961 F.2d 224 (1992). Where, ashere, the plaintiff advances anti-trust claims, preliminary relief is specificallyauthorized by 15 U.S.C. § 26.COUNT III: VIOLATIONS OF THE HOBBS ACT AGAINST RACKETEERING110. Plaintiff re-alleges paragraphs 1 through 109 above.111. Defendants violated The Hobbs Act prohibition against racketeering bypreventing MSCI’s entry into commerce under color of official right in violation of18 U.S.C. 1951(b)(2).112. Defendants committed an unusual act for banks by denial of service andfacilities for plaintiff MSCI’s escrow accounts in bad faith or nonperformance oftheir duty as financial institutions and employees. Defendants “under color ofofficial right” through invocation of the USA PATRIOT Act deny and threatenMSCI’s access to service at any national bank that MSCI, its customers orassociates require to conduct their business, effecting the unjust enrichment ofthe Defendants and their related healthcare suppliers and distributors combine,preventing MSCI’s services from entering into commerce in violation of TheHobbs Act, 18 U.S.C. 1951(b)(2).113. Defendants are extensively invested in selected healthcare suppliers. Theprofits of these healthcare companies are dependent on a current market wherecompetition in pricing is severely curtailed. Defendants’ US BANCORP NA profithas not increased proportionately to its acquisition of banks and traditionalcommercial banking business. Defendants are consequentially dependant onrevenue from their private banking, trust and investment banking divisions which4408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8527

are disproportionately concentrated in healthcare suppliers engaging inanticompetitive business practices.114. Defendants’ US BANCORP NA , despite the patriotic appellation “USBANK” in red white and blue signage that it places on its newly acquired Kansasand Missouri banks, is unlike a traditional American bank in that Defendants USBANCORP NA functions like an Asian bank interlinked in an industry groupcombine, acting against the combine’s industry competitors and aiding thecombine’s allies. In Japan a similar industry group would be called a “Keiretsu” xixor in Korea a “Chaebol.” The Defendants’ vertically integrated monopoly actingin consort with their healthcare suppliers and distributors combine in efforts toprevent MSCI from entering into commerce through the misuse of the USAPatriot Act are extorting property from MSCI, its associates and customers.115. The Defendants did not do the investigation of MSCI they claimed wasrequired under the USA PATRIOT Act and sought to harm MSCI out of anundisclosed profit incentive. In using the USA PATRIOT Act the Defendants areusing force or in the alternative acting under color of law in taking property fromMSCI its associates and customers.116. This bad faith performance of its regulator imposed and customerexpected duty was made self evident by the Defendants’ St. Louis TrustDepartment telling MSCI that it “did not understand why MSCI went to them andnot MSCI’s local bank” without even realizing MSCI was already an establishedUS BANCORP NA client customer with a corporate checking account and a4508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8528

pending corporate credit application, or that MSCI’s chief executive was anestablished checking account holder.117. Plaintiff MSCI has accepted voluntarily that it will be delayed, suffer lostprofits, injury to its associates and loose some or all of the ten best candidatesfor bringing its electronic marketplace and supply chain management softwareservices to commerce. The Defendants have the power to label MSCI as amoney laundering suspect or to do their normal duty of diligence and discoverMSCI, its candidates and associates are upstanding citizens with documentedfunds. MSCI may reluctantly have no choice but to wait until the Defendants’healthcare suppliers and distributors develop a strategy to counter MSCI’sneutral electronic marketplace and cost reducing supply chain managementsoftware before the Defendants allow MSCI the escrow accounts it needs toenter the healthcare supply marketplace.118. MSCI’s chief executive prudently fears that bad faith reporting under theUSA PATRIOT Act by the Defendants to enrich their vertically integratedcombine will prevent MSCI from going to other financial institutions and openingescrow accounts or obtaining other banking services, including the clearing andsettlement of over 90 million dollars in annual healthcare supply transactions,foreign exchange conversion and purchasing finance, all of which are far moresensitive and subject to greater anti-money laundering scrutiny under know yourcustomer laws and the USA Patriot Act.119. The Defendants have opposed MSCI’s requested injunctive relief whichwould have temporarily ordered US BANCORP NA and its employees to stop4608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8529

secretly reporting negative information against MSCI under the USA Patriot Actuntil adequate training and the required compliance officers were in place. TheDefendants have not denied exercising the USA Patriot Act against MSCI.120. The Defendants’ unprofessional conduct and lack of truthful disclosureabout USA PATRIOT Act based conduct continues to threaten the Plaintiff MSCI,its associates and customers through actions that may trigger similar surprisedenials of critical banking services at other financial institutions.121. The Public has been harmed by the Defendants extortion of MSCI thathas obstructed or delayed MSCI’s entry into commerce and the resulting costsavings and increased availability of beneficial healthcare technologies. Over2000 hospitals nation-wide are endangered by the current anticompetitive marketfor healthcare supplies and are harmed by the Defendants continued preventionof MSCI from entering commerce. Public access to healthcare will be harmfullycut back if more hospitals are closed because they are unable to realize the 20%cost reduction provided through MSCI’s system.COUNT IV : FAILURE TO PROPERLY TRAIN EMPLOYEES ON USAPATRIOT ACT OR PROVIDE A COMPLIANCE OFFICER122. Plaintiff re-alleges paragraphs 1 through 121 above.123. Defendants US BANCORP NA, US BANK; PRIVATE CLIENT GROUP,CORPORATE TRUST, INSTITUTIONAL TRUST AND CUSTODY, ANDMUTUAL FUND SERVICES, LLC., failed to provide training or adequate trainingto its employees or to designate a USA PATRIOT Act compliance officer in eachof its financial institutions as required under Section 352 of USA Patriot Act.Without training, employees of US BANCORP denied MSCI, a known domestic4708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8530

corporation in good standing with its Secretary of State and State Department ofRevenue an escrow account service even though it was not an activity that wasregulated under Section 312 effective July 23, 2002.124. Without having adequately trained employees and a USA PATRIOT Actmandated compliance officer in each of their financial institutions, the Defendantscontinue to endanger the plaintiff MSCI, its associates and customers withwrongful denial of services and facilities of US BANCORP NA where MSCI hasits accounts or at other national and state banks where MSCI and its associatesmay be harmed through denied services based on erroneous reporting by theDefendants.COUNT V: MISUSE OF AUTHORITY AND EXCESSIVE USE OF FORCE ASENFORCEMENT OFFICERS UNDER THE USA PATRIOT ACT125. Plaintiff re-alleges paragraphs 1 through 124 above.126. The Defendants BRIAN KABBES, LARS ANDERSON and SUSANPAINE, under knowing direction of Defendants ANDREW CESERE and JERRYA. GRUNDHOFER, repeatedly used the USA Patriot Act to deny services of USBANK, PRIVATE CLIENT GROUP, CORPORATE TRUST, INSTITUTIONALTRUST AND CUSTODY, AND MUTUAL FUND SERVICES, LLC. and USBANCORP NA to MSCI, causing the loss of MSCI property. The Defendants,despite their regulated status as financial institutions and corporate officers offinancial institutions responsible for providing a professional service; deniedMSCI, a known domestic corporation in good standing with its Secretary of Stateand State Department of Revenue an escrow account service on the basis ofincreased reporting requirements for new accounts under the USA PATRIOT Act4808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8531

even though The US Treasury Department had previously announced it wasdelaying the date account opening requirements become issued and effectiveand US BANCORP was under no reporting requirements for MSCI’s escrowaccounts.127. The Defendants continue to endanger the plaintiff MSCI and its associateswith wrongful denial of services and facilities of US Bancorp NA where MSCI hasits accounts or at other national and state banks where MSCI may be deniedservices based on erroneous or bad faith reporting by the Defendants.128. The Defendants continue to endanger the plaintiff MSCI its associates andcustomers with wrongful denial of services and facilities of national and statebanks where MSCI may be denied services based on the Defendantsunprofessional and bad faith denial of escrow accounts based on the USPATRIOT Act. The Defendants action prevents MSCI from escaping the denial ofescrow accounts history and banking references in all new financialarrangements.129. On October 22, 2002 MSCI approached an attorney of Shook, Hardy andBacon for the purpose of acting as escrow agent in substitute accounts to be setup at a national bank. After asking why MSCI’s existing bank did not provide theaccounts, the attorney declined to act as escrow agent.COUNT VI: VIOLATION OF CRIMINAL LAWS TO INFLUENCE PUBLICPOLICY UNDER SECTION 802 OF THE USA PATRIOT ACT130. Plaintiff re-alleges paragraphs 1 through 129 above.131. Defendants are preventing MSCI from entry into commerce to alleviatemarket collusion in healthcare supplies that has lead to injury and loss of life and4908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8532

continues to threaten US citizens. This healthcare supply emergency has beenthe subject of US agency action and investigation. Members and committees ofthe US Congress have begun inquiry into the failure of the healthcare supplymarket place for the purposes of creating public policy regulating marketparticipants. Defendants are preventing MSCI’s entry into commerce in violationof Section 802 of the USA PATRIOT Act which creates a federal crime of"domestic terrorism" that broadly extends to "acts dangerous to human life thatare a violation of the criminal laws" if they "appear to be intended…to influencethe policy of a government by intimidation or coercion," and if they "occurprimarily within the territorial jurisdiction of the United States."132. The Defendants continue to endanger the plaintiff MSCI, its associatesand customers with illegal conduct that prevents them from or threatens toprevent them providing a market solution to this governmental healthcare policyissue.Supplemental State Law Based Causes Of ActionCOUNT VII: MISAPPROPRIATION OF TRADE SECRETS133. Plaintiff re-alleges paragraphs 1-132 above.134. The Defendants have misappropriated MSCI’s business plan andassociate program containing MSCI’s trade secrets. The Defendants have madeuse of MSCI’s trade secrets through unauthorized copying and transmittal.135. The Defendants directed Douglas Lewis to disassemble MSCI’s BusinessPlan and Associate Program and make copies and or fax their contents inviolation of Sam Lipari’s oral instructions to Douglas Lewis and the notice of5008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8533

limitations of disclosure, use, transmittal and copying expressly stated on thecovers and in the bodies of the above documents. US BANK’s exceeded itsauthorized use and copieded and or transmitted the above documents to thedefendants PRIVATE CLIENT GROUP, CORPORATE TRUST, INSTITUTIONALTRUST AND CUSTODY, AND MUTUAL FUND SERVICES, LLC., UNKNOWNHEALTHCARE SUPPLIER, LARS ANDERSON, SUSAN PAINE and BRIANKABBES.136. The Defendants directed Douglas Lewis to disassemble MSCI’s BusinessPlan and Associate Program and make a derivative analysis documentcontaining MSCI’s trade secret and or fax their contents in violation of SamLipari’s oral instructions to Douglas Lewis and the notice of limitations ofdisclosure, use, transmittal and copying expressly stated on the covers and in thebodies of the above documents. US BANK’s exceeded its authorized use andcop ied and or transmitted the above documents to the defendants PRIVATECLIENT GROUP, CORPORATE TRUST, INSTITUTIONAL TRUST ANDCUSTODY, AND MUTUAL FUND SERVICES, LLC., UNKNOWN HEALTHCARESUPPLIER, LARS ANDERSON, SUSAN PAINE and BRIAN KABBES.137. The defendants US BANCORP NA; US BANCORP PIPER JAFFRAY;PRIVATE CLIENT GROUP, CORPORATE TRUST, INSTITUTIONAL TRUSTAND CUSTODY, AND MUTUAL FUND SERVICES, LLC.; LARS ANDERSON;SUSAN PAINE and BRIAN KABBES acquired unconsented knowledge ofMSCI’s trade secrets and made use thereof.5108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8534

138. The Defendants are attempting to settle litigation through payment ofseveral million dollars for theft of customer information in an unrelated classaction lawsuit giving rise to MSCI’s heightened fears of being materially inured ifits trade secrets are not recovered and their dissemination is not disclosed.COUNT VIII: TORTUOUS INTERFERENCE WITH PROSPECTIVECONTRACTS139. Plaintiff re-alleges paragraphs 1-138 above.140. The Defendants have committed Tortuous Interference With ProspectiveMSCI Contracts for independent representatives, business associates and healthsystem customers.141. The Defendants willfully and intentionally acted to prevent 15 prospectivecontractual relationships between MSCI and independent representatives.142. The Defendants willfully and intentionally acted to prevent or interfere withthe prospective contractual relationships between MSCI and business associatesnamed in MSCI’s business plan and associate agreement.143. The Defendants willfully and intentionally acted to prevent or interfere withthe prospective contractual relationships between MSCI and health systemcustomers including hospitals.144. The Defendants willfully and intentionally acted to prevent or interfere withthe prospective contractual relationships between MSCI and the technologypartners discussed in MSCI’s business plan and associate agreement.145. MSCI had a reasonable probability of entering into contracts with 15independent representatives for the December 1 st course, nine businessassociates, three technology partners and numerous hospital groups.5208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8535

146. The Defendants decision to withdraw from acting as MSCI’s escrow agenton October 15, and refusing to repair or reverse their decision was the proximatecause of MSCI’s damages and loss.147. The Defendants decision to withdraw from acting as MSCI’s escrow agenton October 15, and refusing to repair or reverse their decision caused the actualloss of 350,000 to 450,000 dollars MSCI would have on deposit on November 1 st ,of which $50,000 to $75,000 would be available for securing credit and which theentire sum would be the property of MSCI by December 15 th . MSCI depended onthese funds to meet its contractual obligations.COUNT IX: TORTUOUS INTERFERENCE WITH CONTRACTS148. Plaintiff re-alleges paragraphs 1-147 above.149. The Defendants have committed Tortuous Interference With MSCIContracts for independent representatives, business associates and healthsystem customers.150. The Defendants willfully and intentionally acted to disrupt or interfere with10 contractual relationships between MSCI and potential independentrepresentatives.151. The Defendants willfully and intentionally acted to disrupt or interfere withthe contractual relationships between MSCI and business associates named inMSCI’s business plan and associate agreement.152. The Defendants willfully and intentionally acted to disrupt or interfere withthe contractual relationships between MSCI and a human resource technologypartner.5308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8536

153. The Defendants willfully and intentionally acted to disrupt or interfere withthe contractual relationships between MSCI and its landlord and utilities.154. The Defendants decision to withdraw from acting as MSCI’s escrow agenton October 15, and refusing to repair or reverse their decision was the proximatecause of MSCI’s damages and loss.155. The Defendants decision to withdraw from acting as MSCI’s escrow agenton October 15, and refusing to repair or reverse their decision caused the actualloss of 350,000 to 450,000 dollars MSCI would have on deposit on November 1 st ,of which $50,000 to $75,000 would be available for securing credit and which theentire sum would be the property of MSCI by December 15 th . MSCI depended onthese funds to meet its contractual obligations.COUNT X: BREACH OF CONTRACT156. Plaintiff re-alleges paragraphs 1-155 above.157. The Defendants breached their contract with MSCI to provide MSCI with afull range of business banking services, including corporate trust services andescrow agency to be performed lawfully and professionally with a “five starguarantee” of quality of service. This contract was executed in writing by theDefendants and MSCI when their respective agents opened the Medical SupplyChain Corporate checking account in Topeka, Kansas.158. The Defendants breached their contract with MSCI to provide MSCI withcorporate trust services, escrow agency and the service of hosting escrowaccounts for MSCI and its candidates. This contract was made over the phone ata distance of 300 miles between the defendant US BANK’s St. Louis office and5408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8537

MSCI a customer of US BANK’s Noland Road Independence office in the regularcourse of business. No writing or other memorialization of this contract wasreferred to or contemplated at any time during its negotiation and formation byeither the Defendants or MSCI.159. The Defendant BRIAN KABBES and Sam Lipari came into formation ofcontract when both had agreed upon some or all of the terms including: thecomposition of the escrow form, the language limiting the liability of US BANKand the escrow agent, the language designating US BANK’s compensation for itsduties in any legal disputes arising between the parties, the directions for USBANK’s investment of long term held funds, the directions for US BANK’sinvestment of short term held funds, the selection of investment vehicles for bothfunds respectively, the name and address of BRIAN KABBES as escrow agenton the escrow form, the name and address of US BANK as escrow depository onthe escrow form, the price term US BANK is charging for the agreed uponescrow service and the price term and payment schedule for maintaining theaccount.160. The Defendants performed diligence to determine whether to accept thecontract with MSCI to provide MSCI with corporate trust services, escrow agencyand the service of hosting escrow accounts for MSCI and its candidates. TheDefendants required only one item to be rectified for approval; a current goodstanding status from the Missouri Secretary of State, which MSCI provided,satisfying their sole open element.5508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8538

161. The Defendants approved MSCI’s escrow form for delivery along withMSCI’s associate contract to MSCI’s independent representative candidates fortheir examination and submission for review to their personal legal counsel.COUNT XI: PROMISSORY ESTOPPEL162. Plaintiff re-alleges paragraphs 1-161 above.163. The Defendants repudiated the existence of a binding oral contract toprovide MSCI with corporate trust services, escrow agency and the service ofhosting escrow accounts for MSCI and its independent representativecandidates. The Defendants refused to perform the services that their actionsand communications reasonably lead MSCI to rely on when the Defendants wereestopped from doing so by their promises.164. The Defendants approved MSCI’s escrow form for delivery along withMSCI’s associate contract to MSCI’s independent representative candidates anddid other actions and made statements that caused MSCI with the full knowledgeof the Defendants to rely on the Defendants’ performance of the escrow agencyand to host the accounts at US BANK.165. MSCI relied on the Defendants conduct and statements to MSCI’sdetriment when Defendants refused to perform and host the escrow accountsand perform as escrow agents for MSCI. MSCI was harmed by the Defendantsactions, resulting in the loss of from three hundred thousand to four hundred andfifty thousand dollars and the inability to act on the opportunity it had planned torealize with the funds, including the recruitment and training of a nationwide5608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8539

network of independent representatives and the revenue the representativeswould create through MSCI’s entry into commerce.COUNT XII: FRAUDULENT MISREPRESENTATION166. Plaintiff re-alleges paragraphs 1-165 above.167. The Defendants injured MSCI with a fraudulent misrepresentation materialto their transaction of escrow agency and escrow account hosting with MSCI.168. The Defendant BRIAN KABBES speaking as a Vice President of USBANK falsely represented to MSCI that US BANK and the commercial trustdepartment would not perform as escrow agent or host MSCI’s escrow accountsbecause of the “know your customer” diligence requirements of the USA PatriotAct had come into effect and made it impossible for the bank to perform thisservice for MSCI.169. The defendants LARS ANDERSON and SUSAN PAINE made thisfraudulent misrepresentation through the defendant BRIAN KABBES by directinghim to give this reason to MSCI’s chief executive, Sam Lipari.170. The defendant ANDREW CESERE directed the defendants LARSANDERSON, SUSAN PAINE and BRIAN KABBES not to retract this fraudulentmisrepresentation when it had been questioned by MSCI and to maintain themisrepresentation in their capacity as managing speaking officers for USBANCORP NA, US BANK and LLC171. The defendants ANDREW CESERE, LARS ANDERSON, SUSAN PAINEand BRIAN KABBES caused this fraudulent misrepresentation to becommunicated to Sam Lipari with the intention to induce MSCI to refrain from5708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8540

enforcing US BANK’s agreement to provide MSCI escrow agency services andescrow account hosting.172. MSCI justifiably relied upon this fraudulent misrepresentation to notenforce US BANK’s promise with the defendant BRIAN KABBES upon learningthat US BANK was not going to provide the escrow services. MSCI justifiablyrelied upon this fraudulent misrepresentation and did not seek a reversal of thedecision from the St. Louis office of US BANK’s Commercial Trust departmentand instead contacted US BANCORP NA’s ANDREW CESERE, to try andresolve the problem, unintentionally angering LARS ANDERSON and SUSANPAINE.173. The defendants ANDREW CESERE, LARS ANDERSON, SUSAN PAINEBRIAN KABBES and PRIVATE CLIENT GROUP, CORPORATE TRUST,INSTITUTIONAL TRUST AND CUSTODY, AND MUTUAL FUND SERVICES,LLC., UNKOWN HEALTHCARE SUPPLIER, US BANCORP NA and US BANKcaused this fraudulent misrepresentation to be communicated to MSCI withknowledge of its falsity or reckless disregard as to whether it was true or false tothe point of not checking and realizing that the increased duties of the “know yourcustomer” for new account holders had not been enacted. Or, the defendantscaused this fraudulent misrepresentation to be communicated with recklessdisregard as to whether it was true or false to the point of not checking andrealizing MSCI and Sam Lipari were established existing customers of US BANKthe increased duties of the “know your customer” did not apply to.5808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8541

174. MSCI relied on the Defendants fraudulent misrepresentation to MSCI’sdetriment. MSCI was harmed by the Defendants actions, resulting in the loss offrom three hundred thousand to four hundred and fifty thousand dollars and theinability to act on the opportunity it had planned to realize with the funds,including the recruitment and training of a nationwide network of independentrepresentatives and the revenue the representatives would create throughMSCI’s entry into commerce.COUNT XIII: VIOLATION OF GOOD FAITH AND FAIR DEALING175. Plaintiff re-alleges paragraphs 1-174 above.176. The defendants ANDREW CESERE, LARS ANDERSON, SUSAN PAINEand BRIAN KABBES were trust officers in a fiduciary relationship with MSCI thatwas established at the point BRIAN KABBES began working with Sam Lipari todraft MSCI’s escrow form. As trust officers in a confidential relationship they hadthe duty of providing a professional service for MSCI in good faith performance ofthat duty including keeping abreast of the current status of federal accountreporting regulations the duty of disclosure of obstacles to US BANK’s ability toperform for MSCI the services it was seeking. The defendants ANDREWCESERE, LARS ANDERSON, SUSAN PAINE, BRIAN KABBES, US BANCORPNA and PRIVATE CLIENT GROUP, CORPORATE TRUST, INSTITUTIONALTRUST AND CUSTODY, AND MUTUAL FUND SERVICES, LLC., breached theirduty of good faith performance when they failed to alert MSCI to the possibilityUS BANK would not perform the services MSCI was seeking.5908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8542

177. The defendants ANDREW CESERE, LARS ANDERSON, SUSAN PAINEand BRIAN KABBES breached their duty of good faith performance when theyfailed to apply the current status of the USA Patriot Act to MSCI’s requirements.178. The defendants ANDREW CESERE, LARS ANDERSON, SUSAN PAINEand BRIAN KABBES breach their duty of good faith and fair dealing when theymisuse the USA Patriot Act to injure MSCI.179. MSCI was harmed by the Defendants breach of their duty of good faithand fair dealing, resulting in the loss of from three hundred thousand to fourhundred and fifty thousand dollars and the inability to act on the opportunity ithad planned to realize with the funds, including the recruitment and training of anationwide network of independent representatives and the revenue therepresentatives would create through MSCI’s entry into commerce, and includingthe ability to obtain sensitive banking services required by the business modeland future growth of MSCI.PRESENT AND FUTURE INJURY180. The actions taken by the Defendants have resulted in dramatic losses toMSCI its stakeholder, associates, suppliers and customers. As of 11/1/02 undertraditional Robinson-Patman Act (Clayton Antitrust Act sec. 13) damagescalculations, the Defendants have caused substantial short and long-term lossesthat are not recoverable due to MSCI’s injury and delay in obtaining bankingservices. According to the formula utilized under a Robinson-Patman Actproceeding, the first 3 months losses are $15,000,000. In the alternative, MSCI6008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8543

usiness plan losses are $300,000 to $450,000 in addition to the last threemonths of MSCI’s 3-year financials, which combined, are $24,547,576.181. As a direct result of MSCI’s injury, its associates also are damaged due tothe actions of the Defendants. Losses include an average of 40-60 hours perweek participation in MSCI’s evaluation and hiring practices; in addition to duediligence and market evaluation activities. Sustained losses of revenue forassociate/representatives outlined in the last three months of MSCI’s 3-yearfinancials are $4,819,515.182. As a direct result of MSCI’s injury, its consultants and suppliers have beenharmed by MSCI’s inability to fulfill success agreements and service contractsdue to the actions of the Defendants. MSCI consultants and suppliers haveperformed several hundred hours in services that are contractually due andMSCI is unable to perform as a result of the actions of the Defendants. Theseconsultants and suppliers depend on MSCI to meet its obligations and theactions of the Defendants are preventing MSCI from doing so.183. The direct result of MSCI injury and inability to perform its services tocustomers are the lost savings and additional revenue MSCI generates for itscustomers through its services. Losses to MSCI customers are directly due to theactions of the Defendants and are 20% of the total supplies spend healthsystems currently pay out annually. Sustained losses of revenue for MSCI healthsystem customers outlined in the last three months of MSCI’s 3-year financialsare $13,759,800.6108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8544

184. The above claims reflect the immediate losses suffered by MSCI itsstakeholders, associates, suppliers and customers as of 11/1/02 excluding legalrepresentation. To date MSCI and its counsel have performed over 378 hours inlegal work on the antitrust based preliminary injunction remedy.185. Failure to resolve this matter increases MSCI damages over time.Stakeholders, associates, suppliers and customers will also suffer far more indamages. MSCI will directly suffer $2,901,600 in revenue the 1 st year,$27,366,576 in revenue the 2 nd year and $74,798,940 in the 3 rd year, as acombined total of $105,067,116.186. Failure to resolve this matter increases the damages MSCI will suffer forinjury to associate/representatives including in the 1 st year $490,320, in the 2 ndyear $5,293,315, and in the 3 rd year $14,779,788 as a total combined$20,563,423.187. Failure to resolve this matter increases the damages MSCI will suffer overtime, through harm to its suppliers which will suffer losses in the 1 st year of$540,000, the 2 nd year of $540,000 and in the 3 rd year $540,000 as a totalcombined $1,620,000.188. Failure to resolve this matter increases the damages MSCI’s customerswill suffer over time, including losses in the 1 st year of $1,705,400, the 2 nd year of$244,032,960 and the 3 rd year of $697,486,200 as a total combined$943,224,560.189. MSCI’s customers are healthcare systems consisting of hospital groups.The actions of the Defendants to preserve an anticompetitive marketplace in6208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8545

healthcare supplies keeps in jeapordy over 2000 of the nation’s 6,500 hospitals.The resulting closings of some or most of these hospitals due to unsustainablesupply costs will significantly harm public access to healthcare, increasing loss oflife and unnecessary injury.PRAYER FOR DECLARATORY RELIEF190. Paragraphs 1 through 189 are incorporated herein by this reference as iffully pled herein.191. As a direct result of the conduct of said defendants as set forth in Counts I,II, III and IV, V, VI, VII,VIII,IX,X,XI,XII, and XIII and herein, plaintiff has sustainedactual damages in excess of $75,000.00. Such actual damages also include,but are not limited to, damages for injury to business associates, includingsuppliers,partners, independent representative candidates, prospectivecustomers, other lost benefits, reasonable attorney's fees, expert fees, and costs.192. Plaintiff’s Sherman I & II and Clayton antitrust claims against theDefendants include claims against the noncorporate “Persons” in their individualand official capacities: JERRY A. GRUNDHOFER, ANDREW CESERE, BRIANKABBES, LARS ANDERSON, and SUSAN PAINE for constructive knowledge ofintentional denial of services and critical facilities to injur the Plaintiff and delay orobstruct its entry into commerce.193. Because elements of malice, wantonness and oppression mingle in theconduct of the defendant County and its agents, plaintiff is entitled to recoverdamages against the County for violation of plaintiff’s rights as claimed herein6308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8546

and guaranteed under Title VII, the Civil Rights Act of 1991, the Kansas ActAgainst Discrimination, 42 U.S.C. § 1981,1981 (a) and 1981 (a)(b)(4).PRAYER FOR URGENT INJUNCTIVE RELIEF194. WHEREFORE, the Plaintiff respectfully prays for the following urgentinjunctive prospective relief in exceptional circumstances including:195. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants who are the subject of causes of action based incriminal law and to which the above Defendant persons and entities have varyingdegrees of culpability or liability ; obtain separate and independent counsel forany future civil claims seeking monetary damages for the purpose of avoidingconflicts of interest among commonly represented parties prohibited underKansas law and which may jeopardize recovery under future resulting judgments.196. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants cease reporting information related to MSCI underthe USA PATRIOT Act or Anti Money Laundering laws until the Plaintiffs canexhaust administrative relief from the Defendants misconduct available throughthe US Office of the Comptroller of Currency.197. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants disclose the names of bank or trust officers thatperformed any diligence duty regarding MSCI and the names of any AML or USAPATRIOT Act compliance officers consulted regarding MSCI’s escrow accounts.198. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants provide their employees adequate trainingregarding their duties and responsibilities enforcing the USA PATRIOT Act.6408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8547

199. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants provide their employees adequate trainingregarding their duties and responsibilities avoiding antitrust prohibited conduct intheir non traditional banking activity including investment banking , trusts andescrow services.200. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe corporate governance organ of above named Defendants review and audittheir relationships with healthcare companies engaging in restrictive tradepractices, including the assistance Defendants have provided in purchasing orselling healthcare supplier equity to healthcare companies or corporate officersengaging in restrictive trade practices.201. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants including US BANCORP PIPER JAFFRAY bebarred from publicizing a sole source, multi year or exclusive contract to providehealthcare supplies related to any company the Defendants own part of orcontrol an interest in or to which the Defendants currently market investmentopportunities, including venture fund and equity shares or anticipate marketing inthe future.202. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants provide escrow accounts for MSCI and itsindependent representative candidates and future banking services forreasonable fees, equal to the fees charged other corporate customers for similarservices for the duration of the preliminary relief order.203. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants provide escrow accounts and escrow agency forMSCI and its independent representative candidates and future banking services6508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8548

for reasonable fees, equal to the fees charged other corporate customers forsimilar services for the duration of the preliminary relief order.204. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants provide a letter stating the delay and resumption ofbanking services to MSCI’s associates, customers, credit references andindependent representative candidates.205. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants correct any negative reporting made togovernment or industry agencies regarding MSCI.206. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants reimburse the Plaintiff for all legal fees and costsrelated to obtaining injunctive relief under the Clayton Act.207. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants pay interest on the Plaintiff’s damages from thedate a complaint for injunctive relief was first filed until any award is paid by theDefendants.208. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants are restrained from copying, circulating, disclosingor transmitting MSCI’s business information including trade secrets derived fromMSCI’s business plan or associate program amongst employees of USBANCORP NA and its subsidiaries or outside persons and entities.209. The Plaintiff seeks injunctive relief in the form of a court order mandatingthe above named Defendants participate in expedited discovery includingdepositions and document production related to the dissemination of MSCI’sconfidential business information and trade secrets.6608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8549

210. The Plaintiff seeks injunctive relief in the form of a court order allowing thePlaintiff to assist a United States Marshal in searching the premises of theDefendants for evidence of their violations of Misappropriation of Trade Secrets.REQUEST FOR ORAL HEARINGWHEREAS the above stated facts are true based on information andbelief of the Plaintiff MSCI, attested to by its chief executive officer Samuel Lipariand in a previously filed affidavit of facts, the Plaintiff respectfully requests theabove stated injunctive relief is granted. In the event that the Defendants opposethe granting of the above relief or challenge the truthfulness of the above statedfacts, the Plaintiff requests the opportunity to supply the court evidence, experttestimony and memorandums in support of the contested facts and theappropriateness of the relief requested. Additionally, the Plaintiff requests an oralhearing on the evidence and memorandum filed in support of or opposing theabove requested relief.PRAYERWHEREFORE, plaintiff prays for judgment against all defendants for actualdamages in excess of $75,000.00; injunctive relief as indicated; costs, includingall appropriate attorney's fees, expert fees and expenses allowed; and for suchother and further relief as the Court may deem appropriate in law and equity.Respectfully submitted,___________________Bret D. LandrithAttorney for PlaintiffDESIGNATION OF PLACE OF TRIAL6708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8550

Comes now plaintiff and designates Kansas City, Kansas as the place of trial.___________________Bret D. LandrithSTATE OF KANSAS ))COUNTY OF WYANDOTTE )VERIFICATIONI, Samuel Lipari, President of Medical Supply Chain, Inc., being of lawfulage and being first duly sworn upon my oath, state that I am the Chief ExecutiveOfficer of the corporate plaintiff herein and that I have read the above andforegoing Second Amended Complaint and find the statements therein made tobe true and correct to the best of my information, knowledge and belief._________________ November___ 2002Samuel K. LipariCEOMedical Supply Chain, Inc.JURY DEMANDPlaintiffs renew their demand for a trial by jury on all issues so triable.Respectfully submitted this 12th of November, 2002.___________________Bret D. LandrithAttorney for PlaintiffCERTIFICATE OF SERVICE6808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8551

I, the undersigned, do hereby certify that I caused a true and correct copyof the foregoing to be deposited in the U.S. mail, postage prepaid, on this 12thday of November, 2002 addressed to:Patrick J. McLaughlinMark A. OlthoffAttorneys for DefendantsSuite 150050 South Sixth StreetMinneapolis, MN 55402-1498Fax 612-340-2643Certified by,______________Bret D. LandrithKansas Supreme Court # 20380Attorney for Plaintiff MSCIP.O. Box 17-2137Kansas City, KS 66117-01371.816-220-41281.620.231-7636Fax 1-734-549-6495i Omnicell, Inc. company press release dated August 07, 2001ii July 27 /PRNewswire/ -- Aspect Medical Systems, Inc.iii HCA Acquires Hospital Chain (Bloomberg) Oct. 16, 02iv Omnicell, Inc. company press release dated June 17, 2002v NEWTON, Mass., and ST. LOUIS, Mo., Sept. 14 /PRNewswire/ -- AmeriNet,Inc.,vi The Exclusion of Competition for Hospital Sales Through GPOs, Prof. ElhaugeJune 25, 2002vii 3 Medical Supply Companies Receive U.S. Agency Subpoenas; Walsh, Mary;NY Times, Aug. 15, 20026908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8552

viii 2 Powerful Groups Hold Sway Over Buying at Many Hospitals; Bogdanich,Walt; NY Times, Aug, 2002ix Internet Supply Management Firms MergeHealthdatamanagement.com December 17, 1999x US BANCORP NA web site homepage news article regarding falling values ofventure funds including those of US BANCORP NA, dated Oct. 15,2002xi Neoforma.com, Inc Press Release; March 30, 2000Neoforma.com, Inc. (NASDAQ: NEOF), Eclipsys Corporation (NASDAQ: ECLP)and HEALTHvision, Inc., today announced the signing of definitive agreements tomerge and create a new company serving the e-healthcare business-to-business(B2B) marketplace. In conjunction with the agreements, Neoforma.comannounced that it has signed an exclusive 10-year strategic agreement toprovide e-commerce services for the 6,500 healthcare organizations participatingin the purchasing programs of Novation, LLC, the world's largest buyer ofmedical supplies and the supply company of national healthcare alliances VHAInc. and University HealthSystems Consortium (UHC).xii Neoforma.com, Inc Press Release; May 25, 2000Neoforma.com, Inc. (NASDAQ: NEOF) today announced that it has reaffirmed itsexclusive 10-year agreement to provide e-commerce procurement services forNovation. Neoforma.com also announced modifications to the structure andterms of its stock and warrant transactions with VHA Inc. and UniversityHealthSystem Consortium (UHC), the national healthcare alliances that ownNovation.In a related announcement, Neoforma.com, Eclipsys Corporation (NASDAQ:ECLP) and HEALTHvision, Inc. today jointly announced that they have agreed bymutual consent to terminate, effective immediately, their proposed mergersannounced March 30, 2000. Instead, Neoforma.com, Eclipsys andHEALTHvision have entered into a strategic commercial relationship that willinclude a co-marketing and distribution arrangement between Neoforma.com andHEALTHvision. The arrangement includes the use of Eclipsys' eWebITenterprise application integration (EAI) technology and professional services toenhance the integration of legacy applications with Neoforma.com's e-commerceplatform.xiii MedCenterDirect.com Files for IPO MedCenterDirect.com Press ReleaseMarch 28, 2000xiv State Steps up Probe of Research at Piper Jaffray; Meisner, Jeff; Puget SoundBusiness Journal Oct 21, 2002xv IPOmonitor.com databasexvi Commerce One Hit With A Securities Lawsuit; Temple, James, San FranciscoBusiness Times, June 22, 20017008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8553

xvii US BANCORP PIPER JAFFRAY Venture Fund web site April 2001xviii Hospitals Sometimes Loose Money by Using a Supply Buying Group; Walsh,Meier; NY Times, April30, 2002xix Federal Antitrust Law: Cases and Materials; Gifford, Raskind2 nd Ed, 20027108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8554

DJW/lblIN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC.,Plaintiff,v. Case No. 02-2539-CMUS BANCORP, NA.,et al.,Defendants.INITIAL ORDER REGARDING PLANNING AND SCHEDULINGPursuant to Fed. R. Civ. P. 16(b), the court hereby sets this case for a schedulingconference by telephone on May 6, 2003 at 3:00 p.m.The court will initiate the telephoneconference call. All attorneys who have entered an appearance in accordance with D. Kan. Rule5.1(d) shall be available for the telephone conference call at the telephone numbers listedinthe pleadings.Pursuant to Fed. R. Civ. P. 26(f), no later than April 22, 2003, the parties, in personand/or through counsel, shall meet to discuss the nature and basis of their claims and defenses,to discuss the use of mediation or other methods of alternative dispute resolution, to developa proposed discovery plan, and to make or arrange for the disclosures required by Fed. R. Civ.P. 26(a)(1). Prior to the Rule 26(f) planning conference, counsel shall have conferred withtheir clients to discuss these issues and the benefits of mediation or other methods ofalternative dispute resolution.Absent exceptional circumstances, the court expects the partiesto utilize some form of alternative dispute resolution within ninety days of the scheduling08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8555

conference. The parties and counsel should select the particular process to be pursued and theperson who will conduct the process, i.e., a mediator or other neutral.By April 29, 2003, plaintiff(s) shall submit a completed report of parties’ planningconference to the undersigned magistrate judge.The report shall follow the Report of Parties’Planning Meeting form which is posted on the court’s website (www.ksd.uscourts.gov). It shallbe submitted electronically in .pdf format as an attachment to an Internet e-mail sent toksd_waxse_chambers@ ksd.uscourts.gov, and shall not be filed with the Clerk’s Office.In addition to matters covered in Fed. R. Civ. P. 16(b) and (c), the parties shall beprepared to discuss the following matters at the scheduling conference:1. The items listed in the report of parties’ planning conference.2. The extent to which the parties intend to serve disclosures and discoveryelectronically, as permitted by the court’s General Order No. 03-1, Exhibit 1,Rules 5.4.2 & 26.3.3. Whether a limited amount of discovery would enable the parties to presentsubstantive issues for the court’s resolution that would narrow the scope ofremaining discovery.4. Whether potential dispositive motions could be presented for the court’sdetermination at the earliest appropriate opportunity.5. Whether documents should be exchanged without formal discovery requests inorder to facilitate settlement, to avoid unnecessary expense, etc.6. Whether any issues should be bifurcated.208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8556

7. All potentially dispositive issues.8. The setting of a definite date for the final pretrial conference and trial.9. Consent to trial before a United States Magistrate Judge, either at this time or asa back-up if the court determines that its schedule is unable to accommodate thescheduled trial date.The parties should note that magistrate judges may presideover jury trials. Withholding consent will have no adverse substantiveconsequences but may delay the trial of the action.Except when particularly complicated or simple, cases usually are set on a calendar fortrial within twelve to fourteen months from the date of filing. Pursuant to D. Kan. Rule 26.1,discovery in civil cases (other than patent infringement and antitrust cases) shall be completedwithin four months of the date of the scheduling order.The dispositive motion deadline isusually set four to six months before the trial date to allow the court time to consider any suchmotions before the parties begin their final trial preparation.The final pretrial conference willusually be scheduled approximately two weeks after the close of discovery and approximatelytwo weeks before the dispositive motion deadline.The court appreciates the cooperation and diligent efforts which will secure a just andspeedy determination of the issues in this case.If you have questions, please call Lori Lopezat 913-551-5405.IT IS SO ORDERED.Dated this 20th day of March, 2003, at Kansas City, Kansas.308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8557

s/David J. WaxseU.S. Magistrate Judgecc: All counsel and pro se parties408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8558

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, ))v. ) Civil Action No. 02-2539-CM)US BANCORP, NA; US BANK, PRIVATE )CLIENT GROUP, CORPORATE TRUST, )INSTITUTIONAL TRUST AND )CUSTODY, AND MUTUAL FUND )SERVICES, LLC; PIPER JAFFRAY; )ANDREW CESERE; SUSAN PAINE; )LARS ANDERSON; BRIAN KABBES; )and UNKNOWN HEALTHCARE )SUPPLIER, ))Defendants. )DEFENDANTS’ MOTION TO DISMISSDefendants, collectively, move for an Order of the Court dismissing the Amended Complaintin its entirety. The allegations fail to state a claim upon which relief may be granted. No cognizableclaim exists under the averments of the Amended Complaint. As additional reasons for this motion,defendants state:1. Plaintiff has filed a 13-count Amended Complaint. While the allegations are assertedgenerally against all “defendants,” the causes of action are not supported by the facts or the law.2. Plaintiff’s antitrust claims (Counts I and II) are legally insufficient. The factualallegations do not support claims under the Sherman Act. In addition, no Clayton Act claim canexist because the allegations assert the sale of services, not commodities.1386045.108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8559

3. Plaintiff’s claims under the Hobbs Act (Count III) fail as a matter of law because noprivate right of action exists.4. Plaintiff’s claims under the U.S.A. Patriot Act (Counts IV-VI) likewise areinsufficient as a matter of law. No cause of action exists against the defendants based upon thefederal statute and facts alleged.5. Plaintiff’s claim for misappropriation of trade secrets (Count VII) is not cognizable.Plaintiff has not alleged that any trade secrets exist; in fact, the allegations show that the informationwas not secret. Moreover, plaintiff has not alleged sufficient facts showing any misappropriationbecause plaintiff voluntarily provided its information and it was returned to plaintiff.6. Plaintiff’s claims for “tortuous” interference with contracts or prospective contractsfail as a matter of law. (Counts VIII and IX.) Plaintiff has not alleged sufficient facts to show anyimproper purpose, wrongful interference or that U.S. Bank lacked justification in denying escrowservices.7. Plaintiff’s claims for breach of contract (Count X) and breach of the implied duty ofgood faith (Count XIII) fail to state a claim. Under the allegations, it is clear that no contract wasever formed.8. Plaintiff’s claims for promissory estoppel (Count XI) and fraudulentmisrepresentation (Count XII) are not cognizable. Any claim of “misrepresentation” is based upona purported representation concerning the law, which cannot be the basis for a misrepresentationclaim.The allegations also fail to assert any reliance or damages from the purportedmisrepresentation.1386045.1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8560

9. Under Fed. R. Civ. P. 12(b)(6), allegations that are insufficient to state a claim uponwhich relief may be granted are to be dismissed. Because the claims asserted here are insufficientas a matter of law, the Amended Complaint should be dismissed.WHEREFORE, for all of these reasons and as set forth in the accompanying memorandumin support which is hereby incorporated, all defendants request that the Court enter its Orderdismissing the plaintiff’s Amended Complaint./s/ Mark A. OlthoffMARK A. OLTHOFF U.S. KS Ct. #70339SHUGHART THOMSON & KILROY, P.C.Twelve Wyandotte Plaza120 W. 12th StreetKansas City, Missouri 64105(816) 421-3355(816) 374-0509 (FAX)STEVEN D. RUSE KS #11461ANDREW M. DeMAREA KS #16141SHUGHART THOMSON & KILROY, P.C.32 Corporate Woods, Suite 11009225 Indian Creek ParkwayOverland Park, Kansas 66210(913) 451-3355(913) 451-3361 (FAX)ATTORNEYS FOR DEFENDANTS1386045.1308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8561

CERTIFICATE OF SERVICEI hereby certify that a copy of the above and foregoing document was filed electronically withthe above-captioned court, with notice of case activity to be generated and sent electronically by theClerk of said court (with a copy to be mailed to any individuals who do not receive electronic noticefrom the Clerk) this 27th day of March, 2003 to:Bret D. Landrith, Esq.P.O. Box 17-2137Kansas City, KS 66117-0137Attorney for Plaintiff/s/ Mark A. OlthoffAttorney for Defendants1386045.1408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8562

MEDICAL SUPPLY CHAIN, INC.,Plaintiff,Case No. 02-cv-02539US BANCORP, NA; US BANK PRIVATE CLIENT GROUP; CORPORATE TRUST;INSTITUTIONAL TRUST AND CUSTODY; MUTUAL FUND SERVICES, LLC.;PIPER JAFFRAY; ANDREW CESERE; SUSAN PAINE; LARS ANDERSON; BRIANKABBES; UNKNOWN HEALTHCARE SUPPLIER,Defendants.NOTICE OF MOTION FOR EN BANC REHEARING OF SANCTIONSFILED BY PLAINTIFF APPELLANT AND INTENTTO SUBMIT EVIDENCE ALL PARTIES’ REASONABLE ATTORNEY’S FEESEXCEED $360.00 AN HOUR.Comes now the plaintiff Medical Supply Chain, Inc. through its counsel Bret D.Landrith and makes the following notice that Medical Supply Chain, Inc. has filed toobtain en banc rehearing of the appeals court hearing panel’s sua sponte award of doubleattorneys fees and of intent to submit evidence that reasonable fees are in excess of$350.00 an hour as stated below:1. Medical Supply Chain, Inc. has filed to obtain en banc rehearing of the appealscourt hearing panel’s sua sponte award of double attorneys fees as a sanction againstMedical Supply’s counsel under controlling Tenth Circuit and Supreme Court authoritythat the sanction award is reviewable. See attached Motion and exhibits 1-8.2. Counsel for Medical Supply Chain, Inc. intends to provide the court withsubstantial evidence that reasonable attorney’s fees for the defendants US Bancorp NA,Piper Jaffray Companies, Unknown Healthcare Supplier and the identified coconspiratorsNovation, Inc, and Neoforma, Inc. in this prospective injunctive relief action and its twoappeals are well in excess of $360.00 an hour.108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8563

3. The appeal representation included the risk US Bancorp NA, The Piper JaffrayCompanies and their hospital supply monopolist coconspirators faced from the possibilitythis court’s ruling would be reversed and Medical Supply’s unobstructed market entrywould have lowered hospital supply prices by twenty three billion dollars. Representationincluded defending against testimony in three US Senate Antirust Sub CommitteeHearings on hospital group purchasing organizations and their role in obstructingcapitalization of healthcare technology firms and in using anticompetitive agreements torestrain competition in hospital supply markets and the resulting eight New York Timesarticles investigative reporting on the coconspirator’s use of their substantial marketpower to prevent competition in the national market for hospital supplies.4. Medical Supply while challenging the appropriateness of sanctions in seeking enbanc review and with plans to seek Supreme Court review of the hearing panel’smemorandum and order February 6 th concedes the above out of court activity and thirdparty practice was directly related to the burdens the defendants faced in defending thiscourt’s rulings upon appeal.Whereas because the mandate may be premature and Medical Supply will be submittingsubstantial evidence regarding reasonable attorney’s fees, the plaintiff respectfullyrequests the court wait until review is exhausted before scheduling an evidentiary hearingin compliance with the Tenth Circuit mandate.Respectfully SubmittedS/Bret D. Landrith___________________Bret D. LandrithKansas Supreme Court ID # 20380# G33,208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8564

2961 SW Central Park,Topeka, KS 666111-785-267-4084landrithlaw@cox.netCertificate of ServiceI certify I have sent a copy of the present notice to opposing counsel via the E/CMFsystem.308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8565

United States Court of AppealsFor the Tenth CircuitDocket No. 03-3342 (10 th Cir.)Case No.: 02-2539-CM (Kans. Dist. Ct.)_____________________________________________________________Medical Supply Chain, Inc.v.US Bancorp, NA;US Bank; Private Client Group, Corporate Trust,Institutional Trust And Custody, And Mutual Fund Services, LLC.;US Bancorp Piper Jaffray; Jerry A. Grundhofer;Andrew Cesere; Susan Paine; Lars Anderson; Brian Kabbes;and Unknown Healthcare SupplierAppeal from the United States District Courtfor the District of KansasHon. Judge Carlos MurguiaMOTION FOR EN BANC REHEARING OFPANEL SUA SPONTE SANCTIONS*Law Offices of Bret D. Landrith, Esq.Apt. # G33,2961 SW Central Park,Topeka, KS 666111-785-267-40841-785-876-2233landrithlaw@cox.netAttorney for Medical Supply Chain, Inc.Bret D. Landrith, Esq.on the briefAPPELLANT* Jurisdictional authority for en banc review of hearing panel’s sanctions on pg.s 1-2.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8566

MOTION FOR EN BANC REHEARING OF SANCTION ORDER 1(Jurisdictional Argument for en banc rehearing of sanctions) 1-2Certificate of Length Compliance 16Certificate of Service 16Attachments1. Panel Order Sanctioning Appellate Counsel with of 17Double Attorney Fees2. Motion For En Banc Rehearing of Memorandum and Order 263. Medical Supply Amended Complaint Sherman Act Claims 444. Letter to Clerk of the Appellate Court, Patrick Fisher 565. Excerpt From Memorandum for New Trial 596. Trial Court Memorandum and Order 717. Medical Supply Amended Complaint USA PATRIOT ACT Claims 878. Appellate Court Memorandum and Show Cause Order 95Table of AuthoritiesAl George, Inc. v. Envirotech Corp., 939 F.2d 1271, 1274-75(5th Cir. 1991) 15Apani Southwest, Inc. v. Coca-Cola Enterprises, Inc., 2002 C05351 (USCA5, 2002). 11Barnosky Oils Inc., v. Union Oil Co., 665 F.2d 74, 82 (6th Cir. 1981) 14Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) 2Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F.Supp. 1350 at 1363(Colo., 1996). 9Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F.Supp. 1350 at 136308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8567

(Colo., 1996). 10Cooter Gell v. Hartmarx Corporation, 496 U.S. 384 at 402,110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) 1Cooter Gell v. Hartmarx Corporation, 496 U.S. 384 at 402 1Cooter Gell v. Hartmarx Corporation, 496 U.S. 384 at 407 1Covad Communications Co. v. Bellsouth Corp., at 63 2002 C11 260(USCA11, 2002) 14Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.,365 U.S. 127, 141, 81 S.Ct. 523, 531, 5 L.Ed.2d 464 15The Exclusion of Competition For Hospital Sales Through Group PurchasingOrganizations June 25, 2002 by Harvard Law Professor Einer Elhauge 4Gaylor v. Does, 105 F.3d 572 (C.A.10 (Colo.), 1997). 11Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc.,No. 02-9222 (Fed. 2nd Cir. 10/18/2004) (Fed. 2nd Cir., 2004) 10Geneva Pharmaceuticals Tech. v. Barr Laboratories, 201 F.Supp.2d 236at 275 (S.D.N.Y., 2002) 10Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc., No. 02-9222 at pg. 45 (Fed. 2nd Cir. 10/18/2004) (Fed. 2nd Cir., 2004). 13Hospital Group Purchasing: Has the Market Become More Open toCompetition?, July 16, 2003, Lynn James Everard 6Hospital Group Purchasing: Lowering Costs At The Expense Of Patient HealthAnd Medical Innovation? " April 30, 2002 Elizabeth A. Weatherman 4Kaw Valley Elec. Co-op. Co., Inc. v. Kansas Elec. Power Co-op., Inc., 872 F.2d931 at FN4 (C.A.10 (Kan.), 1989) 14Korody-Colyer Corp. v. General Motors Corp; In re Relafen Antitrust Litigationat pg. 6 (Mass., 2003)Krueger v. Doe, 162 F.3d 1173 (C.A.10 (Okla.), 1993 108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8568

Krueger v. Doe, 162 F.3d 1173 (C.A.10 (Okla.), 1993). 12Leatherman v. Tarrant County, 507 U.S. 163 (1993) 11MCM Partners v. Andrews-Bartlett & Assocs., 62 F.3d 967, 976(7th Cir. 1995) 11Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir.1985) 12Nobody in Part. Presents v. Clear Channel Communs., 311 F.Supp.2d 1048at 1069-70 (D. Colo., 2004) 10Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 at pg. 435(C.A.10 (Utah), 1983 1Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 at pg. 435(C.A.10 (Utah), 1983) 13F.R.A.P. local rule 35.7 1F.R.A.P. local rule 35.1 (C) 2F.R.Civ. P. 8(a) 8O Centro Espirita Beneficiente Uniao Do Vegetal v.Ashcroft (10th Cir., 2003) 11Oltremari v. Kansas Social & Rehabilitative Service, 871 F.Supp. 1331(Kan., 1994). 15Sally Beauty Company, Inc. v. Beautyco, Inc., No. 03-6055(Fed. 10th Cir. 6/21/2004) (Fed. 10th Cir., 2004) 2Sherman Act § 1 3Sherman Act § 1 7Sherman Act § 1 15Sherman Act § 2 3Sherman Act § 2 708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8569

Sherman Act § 2 8Sherman Act § 2 15Spanish Broadcasting System of Florida, Inc. v. Clear Channel Communications,Inc., No. 03-14588 (Fed. 11th Cir. 6/30/2004) (Fed. 11th Cir., 2004) 4Spectators' Communication Network, Inc. v. Colonial Country Club,253 F.3d 215, 222 (5th Cir. 2001 3Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999).US General Accounting Office report Pilot Study Suggests Large Buying GroupsDo Not Always Offer Hospitals Lower Prices April 30, 2002 4United States v. Olano, 507 U.S. 725, 734 (1993) 11USA PATRIOT Act Pub. L. No. 107-56, 115 Stat. 272 (2001). 1USA PATRIOT Act 3USA PATRIOT Act 7US Supreme Court in Rule 10 2Verizon Communications Inc. v. Law Offices of Trinko, 540 U.S. ___ (U.S.1/13/2004) (2004). 1408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8570

MOTION FOR EN BANC REHEARING OF SANCTION ORDERThe appellant makes this request for en banc rehearing of the appellatepanel’s sua sponte order of double attorney’s fees (Pg. 17) against appellant’scounsel for abuse of discretion. The appellate panel’s sanction order “relying on amaterially incorrect view of the relevant law” is contrary to the standard in CooterGell v. Hartmarx Corporation, 496 U.S. 384 at 402, 110 S.Ct. 2447, 110 L.Ed.2d359 (1990) and therefore an abuse of discretion.The hearing panel made material errors in relevant antitrust law andconceded that it erroneously upheld the trial court’s ruling that there is no privateright of action under USA PATRIOT Act Pub. L. No. 107-56, 115 Stat. 272(2001). The decision also contradicts controlling case law of this circuit regardingthe prohibition of dismissal when there is a discoverable unknown defendant(Krueger v. Doe, 162 F.3d 1173 (C.A.10 (Okla.), 1993) and plurality of actorsthrough expressly identified but unnamed coconspirators (Olsen v. ProgressiveMusic Supply, Inc., 703 F.2d 432 at pg. 435 (C.A.10 (Utah), 1983) as describedinfra. The en banc “appellate court would be justified in concluding that, inmaking such errors, the district court [here, the hearing panel] abused itsdiscretion.” Cooter Gell v. Hartmarx Corporation, 496 U.S. 384 at 402. “If theappeal is not frivolous under this standard, Rule 38 does not require the appellee topay the appellant's attorney's fees.” I.d at 407.The Tenth Circuit’s local rules do not exclude the award of sanctions fromen banc rehearing under Rule 35.7. The appellant unfortunately is prohibited from08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8571

seeking a denial of an earlier en banc petition (Pg. 26) for being late (even thoughit was filed within 14 days of receiving the panel judgment) under local rule 35.1(C). However the panel’s order of sanctions impacts the appellant counsel’s libertyinterests in representing clients and in protected speech on the violation of antitruststatutes and on his client’s right to redress and therefore necessitates review. As asua sponte order by an appellate hearing panel, the only opportunity for theappellant to appeal the basis for the sanction determination is through an en bancrehearing. The US Supreme Court in Rule 10 states certiorari will rarely be givenfor “…the misapplication of a properly stated rule of law.” Conversely, the trialcourt charged with determining the considerable amount of attorney’s fees to belevied against Medical Supply’s counsel would not have the authority to reversethe superior appellate panel. Medical Supply’s appeal was neither destined for anobvious result in law nor wholly without merit. "An appeal is frivolous when theresult is obvious, or the appellant's arguments of error are wholly without merit.’Braley v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987).” The en banc panel isthe reviewing court necessitated by Braley: “Following Braley to imposesanctions, a court must make specific findings sufficient to…(3) identify for thereviewing court the reason for the sanction.” Sally Beauty Company, Inc. v.Beautyco, Inc., No. 03-6055 (Fed. 10th Cir. 6/21/2004) (Fed. 10th Cir., 2004).[emphasis added]Medical Supply’s counsel is being harshly sanctioned for appealing denialof relief based on a complaint for an urgent Temporary Restraining Order filed08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8572

10/22/02 and amended 11/02/02 because the defendants were repudiating acontract (misusing the USA PATRIOT Act shown to be a false pretext) on10/15/02 to provide escrow accounts required for the deposit of $350,000.00raised from manufacturer rep candidates by Medical Supply. The denial of theTRO caused all funds to be lost on 12/1/02, including the company’s last resourcesused to recruit the candidates and all funds invested in preparation of training. Nofunds have ever been available for legal representation.Medical Supply’s cause is controversial because it’s an action is to seek aninjunction against breaking a contract to provide escrow accounts in furtherance ofa boycott of US Bancorp and Piper Jaffray’s coconspirator identified in thecomplaint as Novation, a healthcare Group Purchasing Organization (“GPO”)competitor of Medical Supply’s in the hospital supply market identified in thecomplaint with its captive e-commerce marketplace Neoforma, Inc. competingwith Medical Supply on the web. Pg.s 44-56 The Clerk of the Court, PatrickFisher shared with counsel this court’s nonpleading based misinformation andresulting prejudice against Medical Supply’s cause in a July 1, 2004 conversation.Pg. 56The appellant panel is unaware that these defendants can be found tomonopolize a market they do not directly compete in and therefore conclusorilyrejected the appellant’s Sherman 1 and 2 claims in 6,7,8 of the sanction order inclear error (Pg. 23), despite this well established point of antitrust law:08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8573

“However, in Aquatherm the plaintiffs did not name (or even identify) thealleged co-conspirators who participated in the relevant market. In thiscase, SBS alleges a conspiracy between HBC, a clear market participant,and CC. Nothing in our case law suggests that a conspiracy must belimited solely to market participants so long as the conspiracy alsoinvolves a market participant and the non-participant has an incentiveto join the conspiracy. Cf. Spectators' Communication Network, Inc. v.Colonial Country Club, 253 F.3d 215, 222 (5th Cir. 2001) ("[W]e concludethat there can be sufficient evidence of a combination or conspiracywhen one conspirator lacks a direct interest in precluding competition,but is enticed or coerced into knowingly curtailing competition byanother conspirator who has an anticompetitive motive."). In its brief,CC correctly points out that Spectators involved a group boycott withmultiple conspirators, thereby giving the non-participant defendant thepower to injure the plaintiff.” [emphasis added]Spanish Broadcasting System of Florida, Inc. v. Clear ChannelCommunications, Inc., No. 03-14588 (Fed. 11th Cir. 6/30/2004) (Fed. 11th Cir.,2004) . The amended complaint (Pg. 47) at 82 averred the US Bancorp PiperJaffray defendants’ control over the day to day operations of companies inMedical Supply’s market, even to the point of placing corporate officers on theGPO board of directors.The hospital supply market is recognized to be anticompetitive See TheExclusion of Competition For Hospital Sales Through Group PurchasingOrganizations June 25, 2002 by Harvard Law Professor Einer Elhauge and TheUS General Accounting Office report Pilot Study Suggests Large Buying GroupsDo Not Always Offer Hospitals Lower Prices April 30, 2002 cited in theAmended Complaint.On 4/30/02 Elizabeth A. Weatherman, Managing Director WarburgPincus, LLC and Vice Chair of the Medical Group of the National Venture Capital08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8574

Association testified before the Senate that “…companies subject to, orpotentially subject to, anti-competitive practices by GPOs will not be fundedby venture capital. As a result, many of these companies and their innovationswill die, even if they offer a dramatic improvement over an existing solution.”[emphasis added] She was called back on 7/17/03 because of the Judiciary’sAntitrust Subcommittee concerns that GPO monopoly power and unethicalconduct is still starving their healthcare technology competitors of capitalization.The complaint pleads the fact that US Bancorp Piper Jaffray was fined foracts of extortion against a healthcare technology company attempting to capitalizeitself with another investment bank (80, Amd. Cmplt. pg. 34 (Pg. 47)) in theupstream relevant market of healthcare capitalization The article cited why theNational Association of Securities Dealers fined Piper Jaffray but the conduct isalso a Sherman 2 monopolization violation:“The NASD investigation found a Piper managing director, ScottBeardsley, threatened to discontinue coverage of Antigenics Inc., a biotechfirm, if it did not select Piper as a lead underwriter for a planned secondarystock offering.As part of a settlement with the NASD, Piper was censuredand fined $250,000 and Beardsley was censured and fined $50,000.”Both Medical Supply appeals were described to the third Senate Judiciaryhearing on the GPO problem because of the important public policy beingdefeated by antitrust violations against e-commerce suppliers:“[A] bank tied to an investment house that has seventy percent of itsholdings in health care suppliers refused to provide the company withsimple escrow services through a blatant misapplication of the USA PatriotAct. Most recently an international conglomerate that is a founder of GHX08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8575

was willing to take a $15 million dollar loss on a real estate deal just tokeep this company out of the market.”Testimony of Lynn James Everard, Hospital Group Purchasing: Has theMarket Become More Open to Competition?, United States Senate Committee onthe Judiciary Subcommittee on Antitrust, Competition and Business andConsumer Rights July 16, 2003. The committee’s counsel made therecommendation that Medical Supply seek the en banc rehearing denied by thepanel.On 7/15/02 The NY Times reported the investigation of antitrust conduct ofUS Bancorp and Piper Jaffray’s coconspirator Novation:“Premier and Novation are also being investigated by the FederalTrade Commission and the General Accounting Office, the investigativearm of Congress. The F.T.C. wants to know if the groups, which last yearnegotiated contracts worth more than $30 billion, are wielding too muchcontrol in the market for hospital supplies.The G.A.O. has already issued apreliminary report that questions whether the groups actually save hospitalsmoney.”By 8/21/04 The NY Times reported that the Justice Department had openeda broad criminal investigation of the medical-supply industry revealing thatNovation is being subjected to a criminal inquiry:“Novation's primary business is to pool the purchasing volume of about2,200 hospitals, as well as thousands of nursing homes, clinics andphysicians' practices, and to use their collective power to negotiatecontracts with suppliers at a discount. In many cases, the contracts offerspecial rebates to hospitals that meet certain purchasing targets. AlthoughNovation is not well known outside the industry, it wields formidablepower because it can open, or impede, access to a vast institutionalmarket for health products.” [emphasis added]08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8576

The Counsel for Medical Supply responded to the panel’s show cause orderfor sanctions with an answer incorporating by reference the case record and statinga complete defense: that the Sherman 1 and 2 claims along with the assertion aprivate right of action exists under the USA PATRIOT Act were erroneouslyrejected by the trial court and the appellate panel. The panel’s memorandum andorder exhibited unfamiliarity with the appellant’s brief and the record on appeal,(Medical Supply’s brief and pleadings were there to inform the court, see Pg.s 59,64-70 explaining Sherman 2 aspect of USA PATIOT Act and contradicting thetrial court’s admonishment). Medical Supply’s counsel formulated a response tothe panel that would decisively show Medical Supply had correctly stated aSherman 1 claim, answering the single element Judge Murgia had faulted. Theanswer showed how the breach of a contract to provide escrow accounts as a resultof an anticompetitive agreement with a market competitor stated on its own aSherman 1 and 2 claim and finally listing two of the many, many express privaterights of action in the USA PATRIOT Act. All in a deliberative attempt to adapt tothe limited attention span a busy hearing panel could devote to a cause it haddismissed as entirely frivolous. The appeal brief gave these same arguments ingreat depth.The panel is mistaken at 3 of its order (Pg. 2) about Judge Murgia’smemorandum dismissing Medical Supply’s Sherman 1 claims. Of the threeelements, the trial court found only the absence of plurality of actors or agreement,the first element: “the court finds plaintiff has failed to allege a contract,08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8577

combination, or conspiracy among two or more independent actors, and thus hasnot stated a claim under § 1.” The court in the same paragraph quotes the amendedcomplaint in one passage that surprisingly stands alone as a complete Sherman1Group Boycott synonymous with Concerted Refusal to Deal claim sufficientlypled under FRCP 8(a):“…that defendants [ the named defendants] use “anticompetitive solesource contracts [ the agreements to restrain trade] between their clienthealth care suppliers and health care GPOs [sic] [ the independent coconspiratorsidentified in other paragraphs as Neoforma and Novationand the group purchasing organizations Premier and Novation] thedefendants have developed” in order to inflate the value of equity shares [to raise prices of capitalization instruments] that defendants market; thatdefendants “operate a conspiracy among their subsidiaries and parentcompanies” for the purpose of restraining commerce; that defendantsrejected plaintiff’s application for escrow accounts in order to preventplaintiff’s entry into the market; and that defendants have acted infurtherance of the conspiracy through a refusal to deal, denial of services,and boycotting or withholding of critical facilities in order to excludeplaintiff from the market.” [emphasis added]Trial court memorandum and order (Pg.s 74-5). This same quote statesSherman 2 claims for Monopoly, Concerted Refusal to Deal, Single Firm Refusalto Deal and even the heightened standard for Sherman 2 AttemptedMonopolization less the two relevant markets pled in the amended complaint atand the geographic nature of the market 36 (nationwide market), 43 “This planwould put representatives in the field nationwide …[to] assist in the adoption ofMSCI’s supply chain empowerment program.”[emphasis added]. MedicalSupply’s Amended Complaint pled agreements to raise prices in the relevantmarket of healthcare capitalization. See Amd. Cmplt. 81, Amd. Cmplt. pg. 34-5,08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8578

(Exb. 3)Amd. Cmplt. pg. 10-12, However, Judge Murgia stated “plaintiff has notpled the existence of a pricing agreement, or agreement of any kind, among thedefendants in restraint of trade.” [emphasis added]Both courts ignored the GPO’s including Premier and Novation both ofwhich are distributors of hospital supplies and competitors of Medical Supply,described as coconspirators in the combine ( Amd Cmplt pg. 26,28,29,33) andPg.s 44-56 . Also ignored are the direct competitors of Medical Supply as ahospital supply electronic market place Commerce One and Medibuy averred tobe in agreement to increase healthcare capitalization prices (shares) with thenamed defendants and exclusive dealing agreements with the GPOs. Id. The panelis in error sanctioning Medical Supply’s counsel because these coconspirators arenot named as defendants yet, before any discovery that would identify which isthe unknown healthcare provider:The fact that Beacon pursues only one of the contracting parties doesnot limit its ability to obtain relief. Accordingly, I conclude that claims 1-4, 7, 8-11, and 14 should not be dismissed for failure to allege a conspiracyto restrain trade or commerce between two or more actors.” [emphasisadded]Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F.Supp. 1350 at 1363(Colo., 1996). The trial court and the hearing panel are mistaken about a lack ofreasonableness in counsel’s brief argument that US Bancorp NA can be liableunder Sherman 1 and 2 for a conspiracy including its subsidiaries and anindependent defendant or unnamed but identified coconspirators:08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8579

“…[P]arent corporations can be held directly liable for independentlyparticipating in the antitrust violations of their subsidiaries. ReadingInt'l, Inc. v. Oaktree Capital Mgmt., LLC, 2003 WL 22928728 (S.D.N.Y.Dec. 10, 2003) (slip copy); Carl Hizel & Sons, Inc. v. Browning-FerrisIndus., Inc., 590 F.Supp. 1201, 1202 (D.Colo.1984).” [emphasis added]Nobody in Part. Presents v. Clear Channel Communs., 311 F.Supp.2d 1048at 1069-70 (D. Colo., 2004). See also Geneva Pharmaceuticals Technology Corp.v. Barr Laboratories Inc., No. 02-9222 (Fed. 2nd Cir. 10/18/2004) (Fed. 2nd Cir.,2004) upholding “there was no "unity of purpose or a common design" betweenACIC/Brantford and Barr. Copperweld, 467 U.S. at 771, 104 S.Ct. 2731” GenevaPharmaceuticals Tech. v. Barr Laboratories, 201 F.Supp.2d 236 at 275 (S.D.N.Y.,2002) and the Second Circuit reinstated the Sherman 1 and 2 claims.The trial court and the hearing panel are mistaken about the significance ofUS Bancorp and Piper Jaffray in concert with a hospital supplier collaborativelyrefusing to deal or in other words conducting a group boycott against MedicalSupply’s use of escrow accounts to accept capitalization from its representativecandidates.“To establish that a group boycott is per se illegal in this Circuit, "theremust be an agreement among conspirators whose market positions arehorizontal to each other." Westman Com'n Co. v. Hobart Intern., Inc., 796F.2d 1216, 1224 n. 1 (10th Cir.1986). "While the competitors need not beat the same market level as the plaintiff, there must be concertedactivity between two or more competitors at same market level." KeyFinancial, 828 F.2d at 641.” [emphasis added]Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F.Supp. 1350 at 1363(Colo., 1996). The amended complaint pleads concerted refusal to deal or group08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8580

oycott between actors horizontal to each other in both relevant markets,healthcare company capitalization and hospital supplies.The panel abuses its discretion in attacking Medical Supply’s counsel withthe most severe sanctions for reasoning that Judge Murgia has employed aheightened standard of pleading in dismissing Sherman Act claims. Judge Murgiadid not grant any reasonable inference or view the amended complaint’s factualallegations "in the light most favorable to the nonmoving party." Sutton v. UtahState Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). MedicalSupply’s brief reflected a very reasonable interpretation that the trial judgebelieved these simply stated elements were insufficient. In fact, Judge Murgiastated that Medical Supply’s Sherman 2 claims needed to be dismissed becauseparticular words were not used:“Plaintiff has not stated that defendants’ alleged market power stems fromdefendants’ willful acquisition or maintenance of that power rather thanfrom defendants’ development “of a superior product, business acumen, orhistoric accident.”Trial order at Pg.s 78-9, indicating a mistaken belief that formalisticpleading still applied to antitrust. It is beyond refute that the trial court deniedpreliminary injunctive relief twice and based its dismissal in part upon this court’sdenial of pre hearing relief in #02-3443 all on an incorrect heightened pleadingstandard for a violation of statute, mistakenly requiring a showing of irreparableharm to obtain the statute’s expressly provided injunctive relief. A decision theplaintiff’s memorandums of 6/26/03 and 7/10/03 showed contradicted controlling08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8581

authority. Subsequent Tenth Circuit decisions adopted the rule observed byMedical Supply that a showing irreparable harm is not required for a statuteviolation. See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft (10thCir., 2003) and en banc rehearing.Leatherman v. Tarrant County, 507 U.S. 163 (1993), bars the district courtfrom applying a heightened pleading standard in antitrust cases. MCM Partners v.Andrews-Bartlett & Assocs., 62 F.3d 967, 976 (7th Cir. 1995) see also ApaniSouthwest, Inc. v. Coca-Cola Enterprises, Inc., 2002 C05 351 (USCA5, 2002):“judicial attempts to apply a heightened pleading standard in antitrust cases hadbeen "scotched" by the Supreme Court's decision…[ in Leatherman]…and thatafter Leatherman, an antitrust plaintiff need not include "the particulars of hisclaim" to survive a motion to dismiss. 33 F.3d at 782.”The hearing panel committed plain error in determining the plaintiff shouldbe sanctioned for asserting an unknown healthcare supplier defendant was oneway the complaint established a plurality of co-conspirators. Plain error is"obvious" or "clear under current law." United States v. Olano, 507 U.S. 725, 734(1993). The Tenth Circuit recognizes complaints against unknown defendants, i.e.Gaylor v. Does, 105 F.3d 572 (C.A.10 (Colo.), 1997). “Dismissal againstunknown defendants is proper "only when it appears that the true identity of thedefendant cannot be learned through discovery or the court's intervention." Munzv. Parr, 758 F.2d 1254, 1257 (8th Cir.1985).” Krueger v. Doe, 162 F.3d 1173(C.A.10 (Okla.), 1993).08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8582

In Olsen v. Progressive Music Supply, Inc., 703 F.2d 432, per se Sherman 1liability was held for concerted refusal to deal or group boycott charges againstProgressive and unnamed defendants, just as Medical Supply claimed against theUS Bancorp defendants, Unknown Healthcare Supplier and other companiesidentified but not named as defendants:“A further complaint on behalf of Olsen was that Progressive conspiredwith certain unnamed co-conspirators, for example, George Best, CBSMusical Instruments (CBS) and Bobbie Herger (owner and operator ofHerger's Music Store in Provo, Utah), in violation of Section 1 of theAct. Olsen asserts that Progressive conspired with Best to cause Olsen tolose franchises, to destroy his credit and business reputation, to take overhis business location and terminate his corporate charter, to fix prices, andto cause manufacturers to boycott his business.”Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 at pg. 435 (C.A.10(Utah), 1983).The U.S. Bancorp defendants were in contract with Medical Supply toprovide escrow accounts for a $6000.00 fee. U.S. Bank broke the contract,Medical Supply Chain, Inc.’s complaint (written shortly after to obtain emergencyinjunctive relief and avoid the resulting irreparable harm ) alleged the breaking ofthe contract was a result of exclusive dealing agreements between the defendantswhich included Unknown Healthcare Supplier and the unnamed but identifiedcoconspirators. See Amd. Cmplt 81,82,86.( Pg. s 46-50 ) “[T]he exclusivedealing arrangement itself satisfies the § 1 requirement of coordinated action.”Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc., No. 02-9222 at pg. 45 (Fed. 2nd Cir. 10/18/2004) (Fed. 2nd Cir., 2004).08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8583

In Covad Communications, the breaking of the agreement between theplaintiff and the monopolist alone become adequate to state a claim.“[A]llegationsthat allege a failure to perform under an agreement that amount to a refusalto deal are sufficient to state a claim under the antitrust laws.” [emphasisadded] Covad Communications Co. v. Bellsouth Corp., at 63 2002 C11 260(USCA11, 2002), reversed on other grounds. The US Supreme Court recentlystated this point of law, which the panel’s decision now surprisingly conflictswith:“The leading case imposing § 2 liability for refusal to deal with competitorsis Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, inwhich the Court concluded that the defendant's termination of a voluntaryagreement with the plaintiff suggested a willingness to forsake short-termprofits to achieve an anticompetitive end.” [emphasis added]Verizon Communications Inc. v. Law Offices of Trinko, 540 U.S. ___ (U.S.1/13/2004) (2004).Now that Medical Supply has experienced all the injury it sought to avoid, it isrequired to bring its claims for monetary damages to a federal district court, likely theWestern District of Missouri, a notice pleading district: “...if future damages areunascertainable, a cause of action for such damages does not accrue until they occur.Zenith, 401 U.S. at 339, 91 S.Ct. at 806.” Kaw Valley Elec. Co-op. Co., Inc. v.Kansas Elec. Power Co-op., Inc., 872 F.2d 931 at FN4 (C.A.10 (Kan.), 1989). Seealso Barnosky Oils Inc., v. Union Oil Co., 665 F.2d 74, 82 (6th Cir. 1981). US Bankwas still attempting to perform the financing part of the contract after Medical Supplyfiled for its injunctive relief. If “the initial refusal is not final, each time the victim08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8584

seeks to deal with the violator and is rejected, a new cause of action accrues. See PaceIndus., 813 F.2d at 237-39; Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d705, 714-15 (11th Cir.1984).” Kaw Valley Elec. Co-op. Co., Inc. v. Kansas Elec.Power Co-op., Inc., 872 F.2d 931 at 933-4 (C.A.10 (Kan.), 1989).Medical Supply also now has evidence the malicious suspicious activity reportas a sham petition was filed to further the agreement to suppress competition. See,e.g., Al George, Inc. v. Envirotech Corp., 939 F.2d 1271, 1274-75 (5th Cir. 1991);Korody-Colyer Corp. v. General Motors Corp; In re Relafen Antitrust Litigation atpg. 6 (Mass., 2003). The amended pleading for now ripe monetary damages in KansasDistrict Court or a new filed action in some other federal district court would sufferno issue preclusion on Sherman 1 or 2 claims. Oltremari v. Kansas Social &Rehabilitative Service, 871 F.Supp. 1331 (Kan., 1994). The failure of either the trialcourt or the appellate panel to address the meritorious appeal that the defendant’s useof the USA PATRIOT Act was a sham petition is a Sherman 2 (Pg.s 59, 64-70 (AmdCmplt. 115-118 on Pg.s 89-90). A violation not excepted by Eastern RR v. Noerr.,365 U.S. 127, 141, 81 S.Ct. 523, 531, 5 L.Ed.2d 464 or maliciously under the USAPATRIOT Act private right of action (Amd Cmplt. 115-118 on Pg.s 89-90)completes the lack of preclusive effect of this panel decision. If left standing, thepanel’s order sanctioning Medical Supply’s counsel would be impaired with no meansto repay the sanctioned funds or prosecute the action. Neither Medical Supply’scounsel, president or any stakeholder have received any income since losing the TROand their $350,000.00 on 12/01/ 2002.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8585

I certify the above motion is 15 pages of double spaced 13 point type.Respectfully submitted,___________________Bret D. LandrithKansas Supreme Court ID # 20380# G33,2961 SW Central Park,Topeka, KS 666111-785-267-4084landrithlaw@cox.netCertificate of ServiceI certify I have served two copies of this pleading upon opposing counsellisted below via U.S. Mail on January 10 th , 2005.Mark A. OlthoffShughart Thomson & Kilroy, PC--Kansas CityTwelve Wyandotte Plaza120 West 12th StreetKansas City, MO 64105816-421-3355Fax: 816-374-0509Email: molthoff@stklaw.com___________________Bret D. LandrithKansas Supreme Court ID # 2038008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8586

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United States Court of AppealsFor the Tenth CircuitDocket No. 03-3342 (10 th Cir.)Case No.: 02-2539-CM (Kans. Dist. Ct.)_____________________________________________________________Medical Supply Chain, Inc.v.US Bancorp, NA;US Bank; Private Client Group, Corporate Trust,Institutional Trust And Custody, And Mutual Fund Services, LLC.;US Bancorp Piper Jaffray; Jerry A. Grundhofer;Andrew Cesere; Susan Paine; Lars Anderson; Brian Kabbes;and Unknown Healthcare SupplierAppeal from the United States District Courtfor the District of KansasHon. Judge Carlos MurguiaMOTION FOR EN BANC REHEARINGLaw Offices of Bret D. Landrith, Esq.Apt. # G33,2961 SW Central Park,Topeka, KS 666111-785-267-40841-785-876-2233eposone@mobil1.netAttorney for Medical Supply Chain, Inc.Bret D. Landrith, Esq.APPELLANT08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8596

.TABLE OF CONTENTSMotion For En Banc Rehearing pg. 1Certificate of Service pg. 16Attachments1.Appellate Court Memorandum and Order pg. 1711/8/04 [1754694] Order filed by Judges McConnell, Holloway andPorfilio, plaintiff and plaintiff's counsel shall show causein writing why they, jointly or severally, should not besanctioned for this frivolous appeal (located in the Orderand Judgment). [03-3342] Response due 11/29/04 for MedicalSupply Chain. Parties served by mail. (kf) [03-3342]11/8/04 [1754705] Terminated on the Merits after SubmissionWithout Oral Hearing; Affirmed. Appellant's motion to amendcomplaint on jurisdictional grounds is denied.; Written,Signed, Unpublished. McConnell; Holloway; Porfilio,authoring [03-3342] Parties served by mail on 11/8/04. (kf)2.Trial Court Memorandum and Order Excerpt pg. 2006/16/2003 Doc. 34 ORDER granting 21 Motion to Dismiss, granting 23 Motion toDismiss, granting 25 Motion to Dismiss, finding as moot 30 Motion to Strike. Signed byJudge Carlos Murguia on 06/16/2003. (jc) (Entered: 06/16/2003)3. Medical Supply Amended Complaint Sherman Act Claims pg.2611/12/2002 Doc. 3 AMENDED COMPLAINT regarding the complaint [1-1] with triallocation of Kansas City, Kansas by plaintiff; jury demand. (MG) (Entered: 11/12/2002)4. Medical Supply Amended Complaint USA PATRIOT ACT Act Claims pg.3511/12/2002 Doc. 3 AMENDED COMPLAINT regarding the complaint [1-1] with triallocation of Kansas City, Kansas by plaintiff; jury demand. (MG) (Entered: 11/12/2002)5. Excerpt From Memorandum for New Trial pg.3606/23/2003 Doc. 35 MOTION for New Trial and Amendment by Plaintiff MedicalSupply Chain, Inc. (Attachments: # 1 Exhibit Attachment 1# 2 Exhibit Attachment 2# 3Exhibit Attachment 4# 4 Exhibit Attachment 5)(Landrith, Bret) (Entered: 06/23/2003)08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8597

MOTION FOR REHEARING EN BANCMedical Supply, seeks reconsideration of this court’s affirmation of theKansas District Court ruling, adopting it through incorporation by reference andwithout independent judicial inquiry. The appellate panel’s opinion overlooksfundamental misstatements of law and misapprehends Medical Supply briefargument that it pled the required two or more actors in combination or conspiracyand that the opinion is in clear error, the USA PATRIOT Act expressly providesfor numerous private causes of action and regardless, the court misapprehendsMedical Supply’s argument that it can enjoin the US Bancorp defendants frommaking a malicious suspicious activity report as a Sherman 2 violation of falsepetition not excepted by the Noer Doctrine 1 even if no private right existed. Theseimportant questions of law conflict with other Circuit Courts of Appeal and the U.S, Supreme Court.Medical Supply Chain, Inc. (Medical Supply) brought the present action toseek injunctive relief to prevent the defendants from breaching their contract toprovide escrow accounts Medical Supply required to capitalize its entry in thehospital supply market. Medical Supply has been unsuccessful in obtaining timelypreliminary relief at the trial court level and in interlocutory appeal and hassuffered the injuries this action has sought to prevent including the $350,000.00the escrow accounts were required for along with the theft of intellectual property.1Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365U.S. 127, 141, 81 S.Ct. 523, 531, 5 L.Ed.2d 46408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8598

Evidence also now exists the defendants have filed a malicious suspicious activityreport against Medical Supply. Medical Supply’s injuries are no longer speculativeand can now be proved with certainty. Medical Supply will bring claims in afederal district court (either Kansas or the Western District of Missouri) formonetary damages on the transaction that prompted the present injunctive reliefattempt and the present decision deprives the parties of any issue preclusion.Findings of the Appellate PanelThe appellate panel’s entire determination on the merits of the issues raisedby the plaintiff upon appeal is contained solely within the following fifty wordsexcerpted from the panel’s November 8 th , 2004 Order and Judgment:“Having reviewed the briefs, the record, and the applicable law pursuant tothe above-mentioned standard, we conclude that the district court correctlydecided this case. We therefore AFFIRM the challenged decision for thesame reasons stated by the district court in its Memorandum and Order ofJune 16, 2003. Appellant's Motion to Amend Complaint on JurisdictionalGrounds is DENIED.” See Attachment 1 pg. 19In adopting the Memorandum and Order of the trial court without additions orchanges, the appellate panel gave no indication of independent judicial review 2and has ruled in conflict with Tenth Circuit published opinions and the U.S.Supreme Court on each of the Sherman Antitrust Act claims of the plaintiff and in2 “Judicial opinions are the core workproduct of judges. They are much morethan findings of fact and conclusions of law; they constitute the logical andanalytical explanations of why a judge arrived at a specific decision. Theyare tangible proof to the litigants that the judge actively wrestled with theirclaims and arguments and made a scholarly decision based on his or her ownreason and logic.” Bright v. Westmoreland County, No. 03-4320 at pg.4(Fed. 3rd Cir. 8/24/2004) (Fed. 3rd Cir., 2004)08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8599

conflict with the U.S. Supreme Court on the issue whether Congress mayexpressly grant private rights of action through enactment of the USA PATRIOTAct. The panel upholds the dismissal of Medical Supply’s Sherman 1 andSherman 2 claims because the plaintiff failed to allege two or more independentactors ( see trial court’s Memorandum and Order, pg.5 ) when the complaintclearly has an independent actor defendant-the Unknown Healthcare Supplier andunnamed co-conspirators identified. The court also dismissed the complaint forhaving alleged no agreement to exclude Medical Supply or to raise prices ( see id,pg.6 ) when clearly the complaint alleges many agreements to exclude MedicalSupply and to increase prices in the relevant markets of healthcare capitalizationand Hospital supplies. Finally, neither the trial court or the appellate panel everread the USA PATRIOT Act or Medical Supply’s pleadings explaining it beforetheir now infamous ruling on this hot issue of law, became de facto published onofficial court internet sites, shaming all of us who practice in this circuit.The Erroneous Affirmation of a Hyperpleading StandardThe appellate panel’s decision raises an important question of law by creatingconflict with a trilogy of recent Supreme Court decisions reflecting the Court’s reneweddetermination to ensure that district judges properly defer to the pleading party indeciding Rule 12(b)(6) motions to dismiss. See Swierkiewicz v. Sorema N.A., 534 U.S.506 (2002); Crawford-El v. Britton, 523 U.S. 574 (1998); Leatherman v. Tarrant CountyNarcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993). In seeking to protect abank or its representation from the inconvenience of answering an antitrust victim, the08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8600

appellate panel has made an embarrassing ruling with little indication it performed any ofits own analysis. The decision also reverts back to prohibited barriers against antitrustactions where all the evidence is in the hands of the defendants:“In the aftermath of Leatherman, antitrust heightened pleading has certainly beencurtailed. Finding the Leatherman rationale applicable to antitrust, many lowercourts have re-embraced notice pleading and Rule 8 as the appropriate pleadingstandard in antitrust cases. The Seventh Circuit is illustrative. Soon afterLeatherman, the court made clear that the “nascent movement” to add judge madeexceptions to notice pleading was now precluded. Consequently, antitrustplaintiffs were not required to plead with particularity. Moreover, the courtdenounced pre-Leatherman cases applying heightened pleading as no longerauthoritative.” [footnotes omitted] Fairman, Christopher M., The Myth Of NoticePleading Arizona Law Review pgs. 1018-19, Vol. 45:987 (2003).Mistaken Points of Law Affirmed By Appellate PanelEach of the trial court’s Sherman Act and USA PATRIOT Act decisionswere made on fundamental errors in established law. Medical Supply’s pleadingsand brief have gone unread in the mistaken belief that some critical element wasunder pled and therefore cannot be recognized. Especially tragic is the reputationof the Circuit lost in the statement there is no private right of action under the USAPATRIOT Act when the pleadings where there to inform the court. SeeAttachment 5 pgs. 42-46 contradicting the trial court’s admonishment.Two or More Actors Medical Supply’s complaint satisfied the two or moreindependent actors requirement for a Sherman 1 prohibited combination. To provea § 1 violation, a plaintiff must demonstrate: (1) a combination or some form ofconcerted action between at least two legally distinct economic entities that (2)unreasonably restrains trade. See Tops Mkts., 142 F.3d at 95; Capital ImagingAssocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 542 (2d Cir.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8601

1993).Neither the trial court nor the court of appeals addressed the issues of theseparate defendant Unknown Healthcare Supplier or the unnamed coconspiratorsidentified in the complaint that independently met the requirements for two ormore actors. Instead of reviewing their own neglect, both the trial court andappellate panel repeatedly admonished Medical Supply’s counsel and threatenedhim with sanctions. See Attachment 1 pg. 19The Unknown Healthcare Supplier Separate Defendant. A legally separateentity-Unknown Healthcare Supplier was named in the caption, in the descriptionof parties, the statement of facts and in the antitrust claims of Medical Supply’samended complaint. See Attachment 3 pg. 29. The plaintiff is still within the fouryear statute of limitations for antitrust claims. The trial court denied preliminaryinjunctive relief including an order sought by the plaintiff to obtain informationabout the named defendants and granted the dismissal just before the plaintiffappeared for the scheduled pretrial conference over the parties’ proposeddiscovery plan.The Tenth Circuit recognizes complaints against unknown defendants, i.e.Gaylor v. Does, 105 F.3d 572 (C.A.10 (Colo.), 1997). More specifically, the TenthCircuit condemns dismissal when the identity of an unknown defendant can beobtained through discovery:“Dismissal against unknown defendants is proper "only when it appearsthat the true identity of the defendant cannot be learned through discovery08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8602

or the court's intervention." Munz v. Parr, 758 F.2d 1254, 1257 (8thCir.1985).”Krueger v. Doe, 162 F.3d 1173 (C.A.10 (Okla.), 1993).The Tenth Circuit On Unnamed Defendants in Antitrust The trial court andnow the appellate panel have ignored Medical Supply’s arguments based onsubstantial authority that it need not name every conspirator as a defendant. Bothcourts ignored Healthcare Group Purchasing Organizations or “GPOs” includingPremier all of which are distributors of hospital supplies competitors of MedicalSupply, described as coconspirators in the combine. Attachment 3 pg. 26,28,29,33.Also ignored are the direct competitors of Medical Supply as a hospital supplyelectronic market place Commerce One and Medibuy averred to be in agreementto increase healthcare capitalization prices (shares) with the named defendants andexclusive dealing agreements with the GPOs. See Attachment 3 pg. 28.In adopting the trial court’s ruling, the appellate panel contradicts clear TenthCircuit authority on this precise issue. In Olsen v. Progressive Music Supply, Inc.,703 F.2d 432, per se Sherman 1 liability was held for concerted refusal to deal orgroup boycott charges against Progressive and unnamed defendants, just asMedical Supply claimed against the US Bancorp defendants and UnknownHealthcare Supplier and other companies not identified or named as defendants:“A further complaint on behalf of Olsen was that Progressive conspiredwith certain unnamed co-conspirators, for example, George Best, CBSMusical Instruments (CBS) and Bobbie Herger (owner and operator ofHerger's Music Store in Provo, Utah), in violation of Section 1 of theAct. Olsen asserts that Progressive conspired with Best to cause Olsen tolose franchises, to destroy his credit and business reputation, to take over08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8603

his business location and terminate his corporate charter, to fix prices, andto cause manufacturers to boycott his business.”Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 at pg. 435 (C.A.10(Utah), 1983). As the case was developed, the trial court found, like MedicalSupply has alleged, that the refusal to deal or boycott was for the purpose ofkeeping the plaintiff from selling goods cheaper than the defendants and theirunnamed coconspirators:“The trial court found that Progressive had conspired with CBS andBobbie Herger to boycott Olsen, whereby he would not be able to obtainCBS products. This boycott was an element of the price fixing conspiracyalso allegedly engaged in by Progressive and Herger. The trial court said,"it was necessary to boycott Olsen in order that the high prices set byProgressive and Herger could be maintained and not be undercut by Olsen."Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 at pg. 435 at 438(C.A.10 (Utah), 1983). And like Medical Supply has averred in its complaintagainst the US Bancorp defendants and Unknown Healthcare Supplier, no procompetitive justification could exist:“In this case there is evidence that there was a boycott which was"clearly exclusionary or coercive in nature." Gould v. Control Laser Corp.,462 F.Supp. 685, 691 (M.D.Fla.1978), aff'd, 650 F.2d 617 (1981). Thus, thecase differs from those in which "courts have circumvented the rigidity ofthe per se rule by reasoning that the need for its application 'depends notupon a finding that * * * [a restraint] constitutes a "boycott" but upon ananalysis of its purpose and competitive impact.' " Note, The FacialUnreasonableness Theory: Filling the Void Between Per Se and Rule ofReason, 55 St. John's L.Rev. 729, 750 n. 155 (1981) (quoting Gould, supra,at 691). Pro-competitive impacts or motives within the trial court's findingsare difficult to see. For instance, Herger boycotted Olsen because "she hadan independent prejudice against giving competitive dealers largediscounts." In addition, Progressive harbored a "predatory intent towardcompeting dealers."08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8604

Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 at pg. 435 at 438-9(C.A.10 (Utah), 1983). There is a conflict among district courts in the TenthCircuit if the trial court ruling in Medical Supply’s case is allowed to stand withthe appellate panel’s unpublished opinion:“Section 1 of the Sherman Act, by its language, does not prohibitsolely unilateral conduct, regardless of its anti-competitive effects. City ofChanute, 955 F.2d at 650. Beacon's complaint, however, clearly alleges aconspiracy to restrain trade or commerce between two actors: Birtcher andValleylab. Beacon specifically points to the licensing agreement enteredinto by Birtcher and Valleylab which restricts Valleylab's ability topurchase handpieces from outside sources. The fact that Beacon pursuesonly one of the contracting parties does not limit its ability to obtainrelief. Accordingly, I conclude that claims 1-4, 7, 8-11, and 14 should notbe dismissed for failure to allege a conspiracy to restrain trade or commercebetween two or more actors.” [emphasis added](Colo., 1996)Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F.Supp. 1350 at 1363The Misapprehension of the Plaintiff’s Named Defendants The complaintnames US Bancorp NA, US Bank and Piper Jaffray as being in a combination withthe Unknown Healthcare Supplier and describes in detail the separate acts of eachin a common agreement to prevent Medical Supply from entering the market forhospital supplies. The named defendants are horizontal to each other and at thesame market level where Medical Supply was creating its own financialinvestment program through the escrow accounts and while that was not anessential requirement for per se Sherman 1 liability, the lesser standard thatconcerted activity, even at another market level than the distribution of hospitalsupplies had been met:08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8605

“To establish that a group boycott is per se illegal in this Circuit, "theremust be an agreement among conspirators whose market positions arehorizontal to each other." Westman Com'n Co. v. Hobart Intern., Inc., 796F.2d 1216, 1224 n. 1 (10th Cir.1986). "While the competitors need not beat the same market level as the plaintiff, there must be concertedactivity between two or more competitors at same market level." KeyFinancial, 828 F.2d at 641.” [emphasis added]Beal Corp. Liquidating Trust v. Valleylab, Inc., 927 F.Supp. 1350 at 1363(Colo., 1996).Copperweld Does Not Exclude Parent Liability. Judge Nottingham in theDistrict of Colorado’s ruling in Nobody in Part. Presents v. Clear ChannelCommuns., 311 F.Supp.2d 1048 (D. Colo., 2004) ruled consistently with MedicalSupply’s brief arguments regarding the potential of US Bancorp to by liable forthe acts of its subsidiaries US Bank and US Bancorp Piper Jaffray and theirofficers in combination or conspiracy with Unknown Healthcare Supplier:“[T]he Supreme Court has suggested that direct liability may existfor parent corporations under the Sherman Act. Copperweld, 467 U.S. at777, 104 S.Ct. at 2744-2745 (stating in dicta that "[a]ny anticompetitiveactivities of corporations and their wholly-owned subsidiaries meritingantitrust remedies may be policed adequately without resort to the intraenterpriseconspiracy doctrine.... The enterprise is fully subject to § 2 of theSherman Act ...."). Additionally, lower courts have recognized thatparent corporations can be held directly liable for independentlyparticipating in the antitrust violations of their subsidiaries. ReadingInt'l, Inc. v. Oaktree Capital Mgmt., LLC, 2003 WL 22928728 (S.D.N.Y.Dec. 10, 2003) (slip copy); Carl Hizel & Sons, Inc. v. Browning-FerrisIndus., Inc., 590 F.Supp. 1201, 1202 (D.Colo.1984).” [emphasis added]Nobody in Part. Presents v. Clear Channel Communs., 311 F.Supp.2d 1048at 1069-70 (D. Colo., 2004). The Tenth Circuit is now in conflict over this pointwith Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories Inc., No.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8606

02-9222 (Fed. 2nd Cir. 10/18/2004) (Fed. 2nd Cir., 2004) where Sherman 1 and 2conspiracy claims against defendants with mutual ownership were challenged:“there was no "unity of purpose or a common design" between ACIC/Brantfordand Barr. Copperweld, 467 U.S. at 771, 104 S.Ct. 2731” Geneva PharmaceuticalsTech. v. Barr Laboratories, 201 F.Supp.2d 236 at 275 (S.D.N.Y., 2002) and theSecond Circuit reinstated the Sherman 1 and 2 claims.Agreement The defendant U.S. Bank was in contract with Medical Supply Chain,Inc. to provide escrow accounts. U.S. Bank broke the contract, Medical SupplyChain, Inc.’s complaint (written shortly after to obtain emergency injunctive reliefand avoid the resulting irreparable harm 3 ) alleged the breaking of the contract wasa result of exclusive dealing agreements between the defendants which includedUnknown Healthcare Supplier. See Amd. Cmplt 81,82,86.( Attachment 3 pg.27,28,29, 31) “[T]he exclusive dealing arrangement itself satisfies the § 1requirement of coordinated action.” Geneva Pharmaceuticals Technology Corp. v.Barr Laboratories Inc., No. 02-9222 at pg. 45 (Fed. 2nd Cir. 10/18/2004) (Fed.2nd Cir., 2004). Medical Supply’s Amended Complaint pled agreements to raiseprices in the relevant market of healthcare capitalization. See Amd. Cmplt. 81,Amd. Cmplt. pg. 34-5, Amd. Cmplt. pg. 10-12,.In Covad Communications, the breaking of the agreement between the3The defendant US Bancorp Piper Jaffray’s adverse admission ofeconomic research reveals that a web based electronic marketplace forhospital supplies like Medical Supply Chain, Inc. would eliminate 83 billiondollars in inefficiency. Plaintiff’s Amended Complaint 27.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8607

plaintiff and the monopolist alone become adequate to state a claim. “[A]llegationsthat allege a failure to perform under an agreement that amount to a refusal to dealare sufficient to state a claim under the antitrust laws.” Covad CommunicationsCo. v. Bellsouth Corp., at 63 2002 C11 260 (USCA11, 2002), reversed on othergrounds. The US Supreme Court recently stated this point of law, which thepanel’s decision now surprisingly conflicts with:“The leading case imposing § 2 liability for refusal to deal with competitorsis Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U. S. 585, inwhich the Court concluded that the defendant's termination of a voluntaryagreement with the plaintiff suggested a willingness to forsake short-termprofits to achieve an anticompetitive end.” [emphasis added]Verizon Communications Inc. v. Law Offices of Trinko, 540 U.S. ___ (U.S.1/13/2004) (2004).Private Causes of Action Under USA PATRIOT Act Public Law 107–56‘‘Uniting and Strengthening America by Providing Appropriate Tools Required toIntercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001’’ contains atleast two private rights of action 4 ; SEC. 223. CIVIL LIABILITY FOR CERTAINUNAUTHORIZED DISCLOSURES and the plaintiff’s often averred maliciousreporting to which there is a private right in SEC. 355 which states ‘‘(3)4 Additional private rights of action are communicated in sections thatimmunize “good faith” disclosure of information from third parties. Thequalifying of immunity to third parties’ causes of action for civil liability areexpressions of Congressional intent for private rights of action; i.e. § 215 ofUSA Patriot amends FISA § 501(e) (as amended): “A person who, in goodfaith, produces tangible things under an order pursuant to this section shallnot be liable to any other person for such production.”08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8608

MALICIOUS INTENT.—Notwithstanding any other provision of this subsection,voluntary disclosure made by an insured depository institution, and any director,officer, employee, or agent of such institution under this subsection concerningpotentially unlawful activity that is made with malicious intent, shall not beshielded from liability from the person identified in the disclosure.” [ emphasisadded ].In paragraphs 115-132 (Attachment 4 pgs. 35-41) of the AmendedComplaint, Medical Supply alleges that the defendants threat of “bad faith” USAPATRIOT Act’ suspicious activity reporting is being used to prevent MedicalSupply from entering the market for hospital supplies. It is beyond refute that thedefendants used the USA PATRIOT Act as a pretext to break their contract withMedical Supply to provide escrow accounts. The act did not even go into effectover bank trust accounts. See Attachment 4 pgs. 35-41.The Likely Reason For the Court’s DisregardA judicial antagonism uncommunicated in the record, where neither districtcourt preliminary relief trial decision was given a written decision and theappellate panel has declined to state its reasoning, exists against Medical Supplyfor continuing to seek injunctive relief. The likely erroneous basis of theantagonism of the trial court now, repeated by the hearing panel is that a newcompetitor like Medical Supply, prevented from entering the market by USBancorp in an agreement with the defendant Unknown Healthcare Supplier has noinjury and therefore no remedy of law.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8609

Like the trial court in case World of Sleep’s conclusion that World of Sleep'slost profits from potential sales to the licensee stores were too speculative because"there is no history at all of any profit or loss on these dealings during the yearsinvolved in this case World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467 at1478 (C.A.10 (Colo.), 1985). This error contradicts established Tenth Circuit andUS Supreme Court law:“If proof of a profit and loss history were required, no plaintiff could everrecover for losses resulting from his inability to enter a market. However,such recoveries are clearly available under section 4 of the Clayton Act.See, e.g., Zenith, 395 U.S. at 129, 89 S.Ct. at 1579. ( Zenith Radio Corp. v.Hazeltine Research, Inc., 395 U.S. 100, 123-24, 89 S.Ct. 1562, 1576-77, 23L.Ed.2d 129 (1969) )”World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467 at 1478 (C.A.10).Medical Supply was the Victim of a Conspiracy To Inflate Prices ThroughHospital Group Purchasing Organizations (GPOs) Allied With theDefendantsThe appellate panel’s decision upholding the trial court and attacking theappeal for being frivolous and sanctionable was shared with the members of theU.S. Senate Judiciary Committee. It was a discussion between a chief expertwitness and the Antitrust Sub Committee’s counsel that led to seeking thisrehearing. The conflict of the trial court with US Supreme Court authority (and thecontrolling cases of this circuit) on the requirements of initial pleadings raiseextremely important questions of law. Medical Supply’s brief identified theseerrors. The fact that this appellate decision was released shortly after the thirdcommittee hearing on the GPO monopoly conduct and its costs to our nation08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8610

certainly means that this decision left unchanged will become part of the comingjudicial appointment policy debates in addition to the continuing search for asolution to the GPO monopoly, which will now unfortunately discredit antitrustenforcement in favor of increased regulation. If a rehearing is granted, addressingthe above cited mistaken points of law, debate on this important national policyissue will be aided.A Rehearing is required for Any Preclusion on the Issues RaisedNow that Medical Supply has experienced its damages and sufferedadditional overt acts by the defendant conspiracy, Medical Supply will bring itsclaims for monetary damages to a federal district court, likely the Western Districtof Missouri if no remand issues, “…if future damages are unascertainable, a causeof action for such damages does not accrue until they occur. Zenith, 401 U.S. at339, 91 S.Ct. at 806.” Kaw Valley Elec. Co-op. Co., Inc. v. Kansas Elec. PowerCo-op., Inc., 872 F.2d 931 at FN4 (C.A.10 (Kan.), 1989). See also Barnosky OilsInc., v. Union Oil Co., 665 F.2d 74, 82 (6th Cir. 1981). US Bank was stillattempting to perform the financing part of the contract after Medical Supply filedits injunctive relief. If “the initial refusal is not final, each time the victim seeks todeal with the violator and is rejected, a new cause of action accrues. See PaceIndus., 813 F.2d at 237-39; Midwestern Waffles, Inc. v. Waffle House, Inc., 734F.2d 705, 714-15 (11th Cir.1984).”Kaw Valley Elec. Co-op. Co., Inc. v. KansasElec. Power Co-op., Inc., 872 F.2d 931 at 933-4 (C.A.10 (Kan.), 1989).08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8611

Medical Supply now has evidence the malicious suspicious activity report,a sham petition 5 was filed. “Some courts have held that, where a plaintiff allegesthat a lawsuit was brought in bad faith ( a sham petition) to suppress competition,the operative overt act for purposes of the antitrust limitations statute is the filingof the sham lawsuit. See, e.g., Al George, Inc. v. Envirotech Corp., 939 F.2d 1271,1274-75 (5th Cir. 1991); Korody-Colyer Corp. v. General Motors Corp;”In reRelafen Antitrust Litigation at pg. 6 (Mass., 2003).The amended pleading for now ripe monetary damages in Kansas DistrictCourt or a new filed action in some other federal district court would suffer noissue preclusion on Sherman 1 or 2 claims. Oltremari v. Kansas Social &Rehabilitative Service, 871 F.Supp. 1331 (Kan., 1994). The failure of either thetrial court or the appellate panel to address the use of the USA PATRIOT Actsuspicious activity reporting as a sham petition completes the lack of preclusiveeffect of this panel decision.ConclusionWhereas for the above stated reasons, Medical Supply respectfully requestsa rehearing en banc is granted, or in the alternative that the matter is remandedback to the trial court overruling the dismissal allowing amending for damages .5The "sham" exception to the Noerr doctrine “This exception encompassessituations in which persons use the governmental process itself—as opposedto the outcome of that process—as an anticompetitive weapon.” CaliforniaMotor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 512, 92 S.Ct.609, 612, 30 L.Ed.2d 64208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8612

Respectfully SubmittedS/Bret D. Landrith___________________Bret D. LandrithKansas Supreme Court ID # 20380# G33,2961 SW Central Park,Topeka, KS 666111-785-267-4084landrithlaw@cox.netCertificate of ServiceI certify I have served two copies of this pleading upon opposing counsellisted below via U.S. Mail on November 10 th , 2004.Mark A. OlthoffShughart Thomson & Kilroy, PC--Kansas CityTwelve Wyandotte Plaza120 West 12th StreetKansas City, MO 64105816-421-3355Fax: 816-374-0509Email: molthoff@stklaw.comS/Bret D. Landrith___________________Bret D. LandrithKansas Supreme Court ID # 2038008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8613

74. MSCI is now fearful of where these documents were sent orwho has reviewed them. The documents that were copied or faxedcontain all confidential details to the business, business model,management team, investors, industry experts, advisors, businesspractices, market strategies, revenue model, service structure,formula, algorithms and financials including 5 year details, 5 yearcondensed and break even analysis. Sam Lipari is fearful thisinformation will fall into the wrong hands further blocking oreliminating entry to market.75. On or about 11/7/02 Sam Lipari received a complimentary D&Breport dated 10/31/02 on MSCI. The report indicated MSCI started in2000 and has a clear credit history and a strong financial condition.CAUSES OF ACTIONCOUNT I: VIOLATIONS OF THE SHERMAN ANTITRUST ACT76. Plaintiff re-alleges paragraphs 1-75 above.77. Defendants have violated Section 1of the Sherman Anti Trust Actprohibition against combination or conspiracy, in restraint of commerce.78. Defendants are a vertically integrated commercial banking, privatebanking, trust and investment banking concern with investment and underwritingtrade concentrated in the healthcare supplier market. In this specific market of08-3187 Medical Supply Chain vs. Neoforma Volume XXII 861434

companies supplying new products, services and technology, new entrants aredependant on the approval and endorsement of the Defendants to healthcaresupply distributors dominated by Healthcare Group Purchasing Organizations orGPO’s due to the Defendants’ monopoly power.79. Defendants are believed to be the largest holder of healthcaresupplier equity issues through their direct investments and theinvestments of funds they manage. Defendants are believed to be thelargest promoters of healthcare supplier stock issues and provide thelargest amount of industry analysis for investor evaluation ofhealthcare supplier stock issues. On information and belief, USBANCORP NA, US BANK, PRIVATE CLIENT GROUP,CORPORATE TRUST, INSTITUTIONAL TRUST AND CUSTODY,AND MUTUAL FUND SERVICES, LLC and US BANCORP PIPERare alter egos of each other in that they now and at all relevant times(a) held themselves out to the public as a single, integrated, fullservice,professional business enterprise; (b) completely dominatedand controlled each other’s assets, operations, policies, procedures,strategies, and tactics; (c) failed to observe corporate formalities; (d)and used and commingled the assets, facilities, employees, andbusiness opportunities of each other, as if those assets, facilities,08-3187 Medical Supply Chain vs. Neoforma Volume XXII 861535

employees, and business opportunities were their own -- all to suchan extent that any adherence to the fiction of the separate existenceof any of these defendants distinct from the others would beinequitable, would permit egregious wrongdoers to abuse acorporate, limited liability corporation, and/or similar privilege oflimited liability, if any, and would promote injustice by allowing thesedefendants to evade liability or veil assets that should be attachable.80. Defendants’ predatory practices in the capitalization of healthcaresuppliers have been found to be in violation of regulatory statutes. In June of2002, US BANCORP PIPER JAFFRAY was censured and fined $250,000.00 bythe National Association of Securities Dealers for threatening to denyAntigenetics, Inc. a critical service of analyst coverage if it did not select USBANCORP PIPER JAFFRAY as a lead underwriter for a second issuing of stock.i81. US BANCORP has participated in underwriting syndicates for 131 IPO’sworth nearly 10 billion dollars since January 1999. iiUS BANCORP is named as adefendant in shareholder law suits investigating US BANCORP’s role in ascheme to allocate equity shares of Commerce One to particular customers onthe condition that these customers would then buy additional equity shares in thesecurities markets at agreed upon times to create a false increase in the prices ofCommerce One shares.iii Commerce One is an electronic marketplacetechnology company providing supply chain management services in the08-3187 Medical Supply Chain vs. Neoforma Volume XXII 861636

usiness to business market and specifically through Medibuy in a “strategicrelationship” to provide these services to healthcare facilities. Medibuy is apartner of the largest GPO which is also the main subject of federal healthcaresupply marketplace inquiry, Premier, Inc. Medibuy is also the exclusive e-commerce supplier for HCA.82. The Defendants maintain control over the day-to-day operationsof healthcare supplier companies they invest in or provide servicesfor. iv This control extends to interlocking directors when Defendantsplace corporate officers of US BANCORP NA on the boards of thehealthcare supplier corporations that the Defendants haveparticipated with in creating anti competitive sole source suppliercontracts with healthcare GPO’s that are "agreements whose natureand necessary effect are so plainly anticompetitive . . . no elaboratestudy of the industry is needed to establish their illegality-they are'illegal per se.'" National Society of Professional Engineers v. UnitedStates, 435 U.S. 679, 692, 98 S. Ct.1355, 1365, 55 L. Ed. 2d 637(1978).83. The Defendants use the creation of anticompetitive sole sourcecontracts between their client healthcare suppliers and healthcare08-3187 Medical Supply Chain vs. Neoforma Volume XXII 861737

GPO’s the Defendants have developed to promote and inflate thevalue of equity shares they are marketing.The Defendants operate a conspiracy among their subsidiaries and parentcompanies and through their employees as “Persons” engaged in combinationwith healthcare GPO’s including UNKOWN HEALTHCARE SUPPLIER for thepurpose of restraining commerce. On information and belief, Defendants, inagreement, concert, and conspiracy with each other, directly or indirectlyinitiated, directed, participated in, aided and abetted, furthered, otherwisecaused, and/or concealed the anticompetitive denial of services and criticalfacilities, or related events, for the purpose of preserving their directorshipsand/or other positions with US BANCORP NA, keeping their contracts with USBANCORP NA, their income, compensation, and fringe benefits, supporting thevalue of their US BANCORP NA securities, and/or concealing their participationin and liability for anticompetitive activities.84. The Defendants prevented MSCI from establishing escrowaccounts it was intending to use as a unique banking service withspecial escrow account agreements reviewed and approved by theDefendants to finance MSCI’s entry into to commerce in competitionto reduce prices and increase manufacturers of healthcare devicesand other healthcare suppliers access to markets in competition withsole source healthcare suppliers and healthcare GPO’s.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 861838

85. The escrow account contracts are novel and could not be duplicated atanother bank in the short time between the Defendants surprise announcementthat they were not going to host the accounts, breaching their contract or duty toMSCI based falsely on the USA Patriot Act, and the deadlines MSCI was inreliance on for receipt of funds. The escrow accounts developed between MSCIand US BANK, along with the line of credit tying arrangement based on thecontract guaranteed portion were “unique and unusual financing terms which areunavailable from competing financial institutions.” If other financial institutionshave the required presence of bank branches and familiarity with MSCIcandidates in several states, along with commercial trust departments capable ofacting as escrow agent for accounts that provide fractional secured interests for abank commercial loan line of credit, they were not present with the capability ofputting the arrangement together in Blue Springs or Independence MO. SamLipari turned to US BANK for the escrow accounts after evaluating and visitingother banks within driving range of his Blue Springs office. US BANK’s branchoffice on Noland Rd. in Independence, MO was able to perform this customfinancial service and proceeded to do so with a regional US BANK commercialtrust office in St. Louis pooling resources for a multi state district. Once US BANKdecided to withdraw the service, there was no financial institution MSCI couldturn to that was capable of meeting its requirements in the few days remaining inwhich to get out the escrow contracts to the candidates for their examination inadvance of the November 1 st deadline. If US BANK had made its reversal earlier;08-3187 Medical Supply Chain vs. Neoforma Volume XXII 861939

there still was no competing national financial institution capable of providingsuch a complex custom service without having a pre-established bankingrelationship. US BANCORP NA was a financial institution lending upon a unique,novel or custom escrow financial instrument in the commercial money marketwith sufficient economic power to give rise to a claim under the Sherman Act ascontemplated in United States Steel Corporation v. Fortner Enterprises, Inc., 429U.S. 610, 51 L. Ed. 2d 80, 97 S. Ct. 861 (1977).86. Defendants through their financial institutions act as a supplier of financialservices to companies in the healthcare industry. Defendants own and controlother supplier companies including medical device manufacturers, biotechnologyproducers, healthcare distributors and health system end users. Defendants haveconspired with, aided and abetted and participated in the financing of efforts tolimit or prevent competition in healthcare supply. Defendants have preventedMSCI from entering the healthcare supply market by refusing to act as a supplierof escrow accounts at any price to MSCI. Such conduct constitutes a contract,combination or conspiracy in restraint of trade in per se violation of Section 1 ofthe Sherman Act, 15 U.S.C. § 1.87. The Defendants have acted in furtherance of the combine’sconspiracy to deny MSCI access to services and essential facilitiesthrough a refusal to deal, denial of services, boycott or withholding ofcritical facilities which is conducted "to exclude a person or groupfrom the market, or to accomplish some other anti-competitive08-3187 Medical Supply Chain vs. Neoforma Volume XXII 862040

objective, or both," DeFilippo v. Ford Motor Co., 516 F.2d 1313, 1318(3d Cir.) (citations omitted), cert. denied, 423U.S. 912, 96 S. Ct. 216,46 L. Ed. 2d 141 (1975), and is a per se violations of § 1.88. Defendants through their financial institutions have discriminated againstMSCI in provision of services and facilities in the form of the five escrow accountsMSCI had mailed out contracts for and the five escrow accounts for candidatescommitting to payment of funds by November 1 st which MSCI was in the processof sending contracts to and the future escrow accounts for its ongoing futurequarterly medical supply chain strategist certification programs.89. The public is being severely injured by the Defendants actions in restraintof trade through their combination or conspiracy, in restraint of commerce90. MSCI has been severely injured and is in danger of further injury resultingfrom the Defendants actions in restraint of trade through their combination orconspiracy, in restraint of commerce. MSCI is now unable to meet its obligations,and risks damage to its corporate credit rating. MSCI is unable to procure anescrow agent to substitute for US BANK. MSCI is unable to meet itscommitments to independent representatives that MSCI depended on to entercommerce. MSCI is unable to produce revenue without independent consultantswho have begun its very expensive certification program. MSCI’s good will withits associates and customers has been harmed by not meeting its scheduledentry to market.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 862141

91. Defendants have violated Section 2 of the Sherman Anti Trust Actprohibition against combining or conspiring with any other person or persons, tomonopolize or attempt to monopolize any part of the trade or commerce.92. Defendants have acquired, maintained and extended theirmonopoly power through improper means, including attempting toextort healthcare technology companies into using US BANCORP asthe underwriter of capitalization against securities regulations and indenying MSCI the escrow accounts it required to capitalize its entryinto commerce through extortion under the color of official right-TheUSA Patriot Act, fraudulently invoked to tortuously Interfere withMSCI’s contracts and prospective contracts.93. Defendants utilize their monopoly power to foreclosecompetition and gain a competitive advantage for their client andassociate companies, in which they have invested millions of dollarsand on whose behalf and acting as a combination, they haveattempted to destroy MSCI, a potential competitor in violation of 15U.S.C.S. § 2.94. The Defendants’ vertical integration is part of a calculatedscheme to gain control over the 1.3 trillion dollar healthcare supplierand distribution segment of the healthcare industry and to restrain or08-3187 Medical Supply Chain vs. Neoforma Volume XXII 862242

suppress competition, rather than an expansion to meet thelegitimate business needs of US BANCORP’s customers, exhibitingthe requisite specific intent needed to show a violation of 15 U.S.C.S.§ 2.95. The Defendants as monopolists, or would be monopolists of thehealthcare supplier/distribution marketplace engage in predatorytactics and dirty tricks including the above mentioned extortion ofbusiness customers seeking capitalization, “laddering” schemes tofraudulently inflate equity values of competitors they own interests in.Additionally, healthcare suppliers the Defendants invest in andpromote engage in anticompetitive predatory sole source contractagreements with healthcare GPOs.96. The Defendants through conspiracy and combination withhealthcare suppliers and distributors have established monopolypower and have the power to control prices of healthcare supplieswhich they exercise in maintaining higher prices through GPOdistribution channels that are higher than those negotiated directly byhospitals, sometimes 25% higher according to the Government08-3187 Medical Supply Chain vs. Neoforma Volume XXII 862343

Accounting Officev and by excluding competition in violation of 15U.S.C.S. § 2.97. Anticompetitive effects have resulted from the Defendant'sactions. New technologies have been prevented from entering thehealthcare market to protect competitors with the capitalizationprovided by the actions of the Defendants to make kickbackpayments to GPOs in exchange for sole source contracts. This hasresulted in the unavailability of superior products and services thatwould have been able to save lives and alleviate suffering in hospitalpatients98. The public is being severely injured by the Defendants actions in restraintof trade through their combining or conspiring with any other person or persons,to monopolize or attempt to monopolize any part of the trade or commerce99. MSCI has been severely injured and is in danger of further injury resultingfrom the Defendants actions in restraint of trade through their combining orconspiring with any other person or persons, to monopolize or attempt tomonopolize any part of the trade or commerce.COUNT II: VIOLATIONS OF CLAYTON ANTITRUST ACT100. Plaintiff re-alleges paragraphs 1 through 99 above.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 862444

101. Defendants have denied MSCI escrow account services, a critical facilityin violation of the Robinson-Patman Act against discrimination in price, services,or facilities; 15 U.S.C. § 13 of the Clayton Antitrust Act.102. Defendants provide financial services and facilities to existing healthcaresupply market participants on the basis of those participants maintainingexclusive dealing arrangements. The Defendants exclusive dealing criteria isdirectly applied where Defendants make contracts and provide investment andfinancing to healthcare supplier companies the Defendants proclaim andpublicize as entering into and maintaining sole source or single source contractswith distributors and end user health systems. The Defendants publicize thisinformation to solicit subscription of stocks they underwrite and to obtaini State Steps up Probe of Research at Piper Jaffray; Meisner, Jeff;Puget Sound Business Journal Oct 21, 2002ii IPOmonitor.com databaseiii Commerce One Hit With A Securities Lawsuit; Temple, James, SanFrancisco Business Times, June 22, 2001iv US BANCORP PIPER JAFFRAY Venture Fund web site April 2001v Hospitals Sometimes Loose Money by Using a Supply BuyingGroup; Walsh, Meier; NY Times, April30, 200208-3187 Medical Supply Chain vs. Neoforma Volume XXII 862545

Bret D. LandrithAttorney at Law12820 SW Highway 4, Topeka KS 666101-785-256-6508 eposone@mobil1.netJuly 1, 2004RE: Medical Supply v. US Bancorp, NA et al; Medical Supply v. General ElectricCompany, et al.Dear Mr. FisherThis letter is being sent to provide you with written answers to your accusationsthis afternoon.I do not own stock in Medical Supply Chain, Inc. or any other company.When Medical Supply suffered the first attack in the form of the US Bancorpdefendants purloining three hundred and fifty thousand dollars and intellectual propertybusiness trade secrets that Medical Supply relied upon to enter the hospital supply marketafter years invested in developing the proprietary technology of a superior electronicmarketplace, we attempted to get injunctive relief to stop the defendants from theircontinuing obstruction and from further disseminating our trade secrets. We did not “filean antitrust suit every time we need money”, as you assert.We searched nationwide for a law firm capable of representing us in our antitrustaction. Our failure to find one does not mean as you assert that we “do not have a case.”More than 90% of our queries never resulted in information about our problem beingexchanged. The fact that US Bancorp NA is one of our nation’s largest bank holdingcompanies conflicted out almost all of the firms we queried. The remaining commerciallitigators were wholly prejudiced against any antitrust form of lawsuit, and declinedrepresentation without information about our action. However, the Harvard Lawprofessor and antitrust authority we have cited, volunteered his services on the USBancorp case and then even went further, expressing a desire to work with us ondiscovery.I believe we met in district court the current state of disfavor private antitrustenforcement has fallen into. I accept no responsibility for this. I have not been apractitioner or judge. In fact, Medical Supply is my first client. Others can answer for thelast twenty five years of antitrust litigation. At the time, I formed our expectations fromthe application of antitrust statutes in appellate case law. Because Tenth Circuit decisionswere our controlling authority, I believed pleading a set of facts where a group boycottwas enforced against my client by a competitor through a common supplier or in thealternative that the supplier acting as a competitor and refusing to deal against its owninterests in an established business relationship and without even a business justification(let alone a pro-competitive one ) entitled a plaintiff to put on evidence at trial.The capable, experienced internal and external counsel for the US Bancorp andGE defendants were probably well within the expected standard of practice if they108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8626

advised their clients that they would not even have to refrain from injuring MedicalSupply under the antitrust statutes. Mr. Glecklen, a formidable scholar on intellectualproperty based antitrust was very critical of the complaint I had drafted based on AspenSkiing, believing it does not state a claim on which relief can be granted. Now that I havea broader perspective, I believe I can see why practioners who do not regularly representantitrust defendants in the Tenth Circuit would not at the time, have recognized thesignificance of a single firm’s refusal to deal under circumstances closely parallelingAspen Skiing.On January 13, 2004, the significance of the Tenth Circuit’s decision in AspenSkiing was again recognized when Justice Scalia, joined by Chief Justice Rehnquist,Justice O’Connor, Justice Kennedy, Justice Ginsburg, and Justice Breyer delivered theopinion of the Court in Verizon Communications Inc., Petitioner v. Law Offices Of CurtisV. Trinko, LLP, Supreme Court Of The United States No. 02—682, stating “The leadingcase for §2 liability based on refusal to cooperate with a rival…is Aspen Skiing.” JusticeScalia went on to endorse the Aspen Skiing premise, stating: “The unilateral terminationof a voluntary (and thus presumably profitable) course of dealing suggested a willingnessto forsake short-term profits to achieve an anticompetitive end.” Commentators havesuggested that the court’s omission of significant later §2 decisions is a deliberatepreference for the higher standard ( and the standard Medical Supply’s claims meet) inAspen Skiing. Medical Supply has not come to your court with baseless claims devoid ofa meritorious supporting legal theory.Furthermore, the issues related to Medical Supply’s market exclusion have been amatter of national concern. When an industry expert (who has similarly volunteered to bean expert witness for Medical Supply) discussed the consequences of the actions taken tokeep Medical Supply out of the hospital supply market by US Bancorp and GeneralElectric before the US Senate Judiciary Committee’s Subcommittee on Antitrust, he waswarmly greeted by the committee’s Republican and Democratic leadership who havebeen concerned about the failure of legislative attempts to discourage hospital supplyprice manipulation. Both the US Department of Justice and the Federal TradeCommission have since sought his guidance and information about efforts to suppresscompetition in the electronic marketplace for hospital supplies.I do not believe Medical Supply lacks a case, in contrast I believe there was nevera defense to Medical Supply’s charges. When the human tragedy that is the foreseeableconsequence of systemic violations of federal antitrust statutes to inflate hospital supplyprices, decreasing access to healthcare and disrupting health insurance coverage struckmy own family, I deeply questioned my progress and whether Medical Supply could haveentered the market for hospital supplies by now with different counsel. Many have sharedwith me a belief which you appeared to articulate that it is not the law but who representsyour cause that matters. Besides an oath to uphold the rule of law which prohibits mefrom subscribing to this view; even an elementary economics background would suspendbelief that a new entrant to a market would be able to command greater resources incorrupt influence than existing national monopolists. I have a firm belief, unshaken byyour accusations, that Medical Supply’s claims against the US Bancorp and GEdefendants will be fairly tried on their merits and under the weight of statute and case lawauthority with no regard to who represented each party.208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8627

Sincerely,S/Bret D. LandrithAttorney for Medical Supply Chain, Inc.cc: Mark Olthoff,John Power308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8628

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, )) CIVIL ACTIONv. )) No. 02-2539-CM)US BANCORP, NA, et al., ))Defendants. ))MEMORANDUM AND ORDERPending before the court is defendants’ Motion to Strike Plaintiff’s Answer to Defendants’ Reply (Doc.30). Also before the court are defendants’ Motions to Dismiss (Docs. 21, 23, and 25), plaintiff’s Response todefendants’ Motions to Dismiss (Doc. 27), and defendants’ Reply in Support of all Motions to Dismiss (Doc.28). As set forth below, defendants’ Motions to Dismiss are granted. Defendants’ Motion to Strike isdismissed as moot.I. Background 11. The PartiesPlaintiff is a Missouri corporation which has developed a health care supply strategist certificationprogram. According to plaintiff, defendant US Bancorp NA (hereinafter “US Bancorp”) is a bank holdingcorporation headquartered in Minnesota and is the parent company of the employees and subsidiaries namedas co-defendants. Defendant US Bancorp operates banks in several states under the name US Bank.1 The court exercises jurisdiction under 28 U.S.C. §§ 1331 and 1337.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8641

Defendant Private Client Group, Corporate Trust, Institutional Trust and Custody, and Mutual Fund Services,LLC (hereinafter “defendant LLC”), is a subsidiary of defendant US Bancorp, also headquartered inMinneapolis. Defendant LLC is the division of defendant US Bancorp that is responsible for escrow accountsfor health care systems. Defendant US Bancorp Piper Jaffray, Inc. is the investment banking subsidiary ofdefendant US Bancorp, and is headquartered in Minneapolis. It has underwriting and investment relationshipswith healthcare suppliers. Defendant Unknown Healthcare Entity is “believed to be a supplier or purchasingorganization who has communicated with US Bancorp, its employees or its subsidiaries about plaintiff for thepurpose of obstructing or delaying plaintiff's entry into commerce.” Jerry A. Grundhofer is President and CEOof defendant US Bancorp. Defendant Andrew Cesere is Vice Chairman of the US Bancorp trust division.Defendant Susan Paine is the supervisor for US Bank’s St. Louis, Missouri corporate trust office. DefendantLars Anderson is the customer acquisition manager for US Bank’s St. Louis, Missouri corporate trust office.Defendant Brian Kabbes is Vice President of Corporate Trusts for US Bank.B. Plaintiff’s ClaimsPlaintiff contends defendants engaged in conduct violating (1) the Sherman Antitrust Act; (2) the ClaytonAntitrust Act; and (3) the Hobbs Act. Plaintiff also alleges defendants (4) “fail[ed] to properly train [their]employees on the USA PATRIOT Act or to provide a compliance officer”; (5) misused “authority andexcessive use of force as enforcement officers under the USA PATRIOT Act”; and (6) violated “criminal lawsto influence policy under section 802 of the USA PATRIOT Act.” The complaint further charges defendantswith (7) misappropriation of trade secrets, under state law; (8) tortious interference with prospective contracts;(9) tortious interference with contracts; (10) breach of contract; (11) promissory estoppel; (12) fraudulentmisrepresentation; and (13) violation of the covenant of good faith and fair dealing. Plaintiff seeks over $943-2-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8642

million in damages and declaratory relief. 2 Defendants request dismissal of the Amended Complaint pursuantto Federal Rule of Civil Procedure 12(b)(6) on the grounds that plaintiff has failed to state a claim for whichrelief can be granted.On March 12, 2002, plaintiff’s President and CEO, Sam Lipari, began a process of selecting a nationalbank to provide services including nationwide checking, escrow services, credit facilities, and other bankingservices. Mr. Lipari opened a corporate account with US Bank on or about April 15, 2002. On October 1,2002, plaintiff contacted a US Bank employee at the Noland Road, Independence, Missouri branch of USBank. Plaintiff requested the bank to provide escrow services. Defendants ultimately denied plaintiff’s request,and plaintiff claims it was damaged as a result.II.Legal Standard for Motions to DismissThe court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubtthat the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her torelief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304(10th Cir. 1998), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326 (1989). Thecourt accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Swanson v. Bixler,750 F.2d 810, 813 (10 th Cir. 1984). The issue in resolving a motion such as this is not whether the plaintiff willultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes,416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).2 On January 9, 2003, the Tenth Circuit affirmed this court’s order denying plaintiff’s requests forpreliminary injunction.-3-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8643

III.AnalysisA. Sherman Act (Count I)In Count I of the Amended Complaint, plaintiff alleges defendants have violated sections 1 and 2 of theSherman Act, 15 U.S.C. §§ 1 and 2.1. Section 1A plaintiff must plead three elements to state a claim under § 1 of the Sherman Act: (1) a contract,combination, or conspiracy among two or more independent actors; (2) that unreasonably restrains trade; and(3) is in, or substantially affects, interstate commerce. 15 U.S.C. § 1; TV Communications Network, Inc. v.Turner Network Television, Inc., 964 F.2d 1022, 1027 (10 th Cir. 1992); 1 Irving Scher, et al., AntitrustAdviser (4 th ed. 2001) § 1.04.With regard to § 1, plaintiff states defendants are a “vertically integrated” entity that exercises monopolypower over “the specific market” of companies seeking to supply new products, services, and technology in thefield of health care, because new entrants into the market “are dependent” upon defendants’ approval andendorsement. Plaintiff alleges that defendants violated Section 1 by stating that defendants “are believed to bethe largest holder of health care supplier equity issues”; that defendants US Bancorp , US Bank, and defendantLLC, as well as US Bancorp Piper are “alter egos” of each other which have, inter alia, “completely dominatedand controlled each other’s assets, operations, policies, procedures, strategies, and tactics”; that defendants use“anticompetitive sole source contracts between their client health care suppliers and health care GPOs [sic] thedefendants have developed” in order to inflate the value of equity shares that defendants market; that defendants“operate a conspiracy among their subsidiaries and parent companies” for the purpose of restraining commerce;that defendants rejected plaintiff’s application for escrow accounts in order to prevent plaintiff’s entry into the-4-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8644

market; and that defendants have acted in furtherance of the conspiracy through a refusal to deal, denial ofservices, and boycotting or withholding of critical facilities in order to exclude plaintiff from the market.a. Contract, Combination, or ConspiracyPlaintiff alleges that defendants have conspired to prevent plaintiff’s entry into the market through refusalto deal, denial of services, and boycotting or withholding critical facilities. Defendants contend plaintiff has failedto allege the existence of an agreement among defendants, and that plaintiff cannot show that two or moreindependent actors were present. Accepting the allegations contained in the complaint as true, the court findsplaintiff has failed to allege a contract, combination, or conspiracy among two or more independent actors, andthus has not stated a claim under § 1.First, the court finds that plaintiff has not demonstrated that a plurality of actors existed amongdefendants. In the complaint, plaintiff states that all individuals named as defendants are officers or employeesof defendant US Bancorp, and that all business entities named as defendants are subsidiaries of defendant USBancorp. Officers, directors, and employees of the same company cannot conspire with each other to violate§ 1, because they cannot comprise the plurality of actors necessary for a conspiracy. As the Supreme Courtheld in Copperweld Corp. v. Independence Tube Corp.:[A]n internal “agreement” to implement a single, unitary firm’s policies does notraise the antitrust dangers that § 1 was designed to police. The officers of asingle firm are not separate economic actors pursuing separate economicinterests, so agreements among them do not suddenly bring together economicpower that was previously pursuing divergent goals. Coordination within a firmis as likely to result from an effort to compete as from an effort to stiflecompetition. In the marketplace, such coordination may be necessary if abusiness enterprise is to compete effectively. For these reasons, officers oremployees of the same firm do not provide the plurality of actors imperative fora § 1 conspiracy.-5-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8645

467 U.S. 752, 769 (1984). Likewise, a parent corporation is incapable of conspiring with its wholly ownedsubsidiaries:[T]he coordinated activity of a parent and its wholly owned subsidiary must beviewed as that of a single enterprise for purposes of § 1 of the Sherman Act.A parent and its wholly owned subsidiary have a complete unity of interest.Their objectives are common, not disparate; their general corporate actions areguided or determined not by two separate corporate consciousnesses, but one.. . . If a parent and a wholly owned subsidiary do “agree” to a course of action,there is no sudden joining of economic resources that had previously serveddifferent interests, and there is no justification for § 1 scrutiny.Id. at 771; see also In re Indep. Serv. Orgs. Antitrust Litig., 85 F. Supp. 2d 1130, 1149 (D. Kan. 2000)(following Copperweld in finding that coordination among divisions of a corporation does not violate ShermanAct).Second, the court finds that even if the allegations of conspiracy alleged in plaintiff’s complaintencompassed a plurality of actors, plaintiff has failed to state a claim for relief. Here, plaintiff has not pled theexistence of a pricing agreement, or agreement of any kind, among the defendants in restraint of trade.“Although the modern pleading requirements are quite liberal, a plaintiff must do more than cite relevant antitrustlanguage to state a claim for relief.” TV Communications Network, Inc., 964 F.2d at 1024 (citing MountainView Pharmacy v. Abbott Labs., 630 F.2d 1383, 1387 (10 th Cir. 1980)). A plaintiff must allege sufficientfacts to support a cause of action under the antitrust laws. Id.; see also Perington Wholesale, Inc. v. BurgerKing Corp., 631 F.2d 1369 (10 th Cir. 1979) (holding that to survive a motion to dismiss, a complaint statingviolations of the Sherman Act “must allege facts sufficient, if they are proved, to allow the court to conclude thatclaimant has a legal right to relief”). Conclusory allegations that the defendant violated those laws are insufficient.-6-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8646

Id. (citing Klebanow v. N.Y. Produce Exch., 344 F.2d 294, 299 (2d Cir. 1965)). The court grantsdefendants’ motion to dismiss plaintiff’s claim under § 1 of the Sherman Act.2. Section 2Section 2 of the Sherman Act prohibits monopolies in interstate trade or commerce. 15 U.S.C. § 2(“Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other personor persons, to monopolize any part of the trade or commerce among the several States . . . shall be deemedguilty of a felony.”). Conduct violates this section when an entity acquires or maintains monopoly power in sucha way as to preclude other entities from engaging in fair competition. United States v. E.I. du Pont deNemours & Co., 351 U.S. 377, 389-90, (1956); Instructional Sys. Dev. Corp. v. Aetna Cas. & Sur. Co.,817 F.2d 639, 649 (10 th Cir. 1987).Plaintiff states defendants “have violated Section 2,” and that they “have acquired, maintained andextended their monopoly power through improper means, including attempting to extort healthcare technologycompanies into using US Bancorp as the underwriter of capitalization against securities regulations and in denying[plaintiff] the escrow accounts it required to capitalize its entry into commerce through extortion under the colorof official right - the USA PATRIOT Act.” Further, plaintiff alleges defendants’ “vertical integration is part ofa calculated scheme to gain control over the $1.3 trillion health care supplier and distribution segment of thehealth care industry and to restrain or suppress competition,” and that defendants “engage in predatory tacticsand dirty tricks including . . . extortion [and] ‘laddering’ schemes to fraudulently inflate equity values ofcompetitors they own interests in.” Plaintiff claims defendants “invest in and promote engage in [sic]anticompetitive predatory sole source contract agreements.” In addition, according to plaintiff, defendants have-7-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8647

gained “the power to control prices of health care supplies . . . that are higher than those negotiated directly byhospitals.”With regard to the effects of defendants’ alleged actions, plaintiff states, without elaboration, that “newtechnologies have been prevented from entering the health care market,” resulting “in the unavailability ofsuperior products and services that would have been able to save lives and alleviate suffering.” Further, plaintiffcontends “[t]he public is being severely injured by defendants’ actions” and that plaintiff “has been severelyinjured and is in danger of further injury.”The court construes plaintiff’s complaint as attempting to state a claim of combination or conspiracy tomonopolize. It is unclear whether plaintiff claims that actual or attempted monopolization occurred. Applyingall three theories of recovery, the court finds that plaintiff has failed to state a claim under § 2.“The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession ofmonopoly power in the relevant market and (2) the willful acquisition or maintenance of that power asdistinguished from growth or development as a consequence of a superior product, business acumen, or historicaccident.” United States v. Grinnell Corp., 384 U.S. 563, 570-71 (1966). In the Tenth Circuit, “monopolypower is defined as the ability both to control prices and exclude competition.” Tarabishi v. McAlester Reg’lHosp., 951 F.2d 1558, 1567 (10 th Cir. 1991). Further, “determination of the existence of monopoly powerrequires proof of relevant product and geographic markets.” Id.Here, plaintiff has failed to allege that defendants both controlled prices and excluded competition.Further, plaintiff has not pled the existence of a relevant product market or geographic market. Plaintiff has notstated that defendants’ alleged market power stems from defendants’ willful acquisition or maintenance of that-8-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8648

power rather than from defendants’ development “of a superior product, business acumen, or historic accident.”The court finds plaintiff has failed to state a claim of monopoly under § 2.To state a claim for attempted monopolization under § 2, the plaintiff must plead: “(1) relevant market(including geographic market and relevant product market); (2) dangerous probability of success in monopolizingthe relevant market; (3) specific intent to monopolize; and (4) conduct in furtherance of such an attempt.” FullDraw Prods. v. Easton Sports, Inc., 182 F.3d 745, 756 (10 th Cir. 1999) (citing TV Communications, Inc.,964 F.2d at 1025). “Factors to be considered in determining dangerous probability include the defendant’smarket share, ‘the number and strength of other competitors, market trends, and entry barriers.’” Id. (citingBacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 894 (10 th Cir. 1991). Plaintiff has neitheradequately pled the existence of a relevant market nor alleged that defendants have a “dangerous probability”of success in monopolization. The court finds plaintiff has not stated a claim for attempted monopolization under§ 2.With regard to combination or conspiracy to monopolize, “[a] plaintiff must show conspiracy, specificintent to monopolize, and overt acts in furtherance of the conspiracy.” Monument Builders of Greater Kan.City, Inc. v. Am. Cemetery Ass’n of Kan., 891 F.2d 1473, 1484 (10 th Cir. 1989) (citing PeringtonWholesale, 631 F.2d at 1377; Baxley-DeLamar Monuments, Inc. v. Am. Cemetery Ass’n, 843 F.2d 1154,1157 (8 th Cir. 1988)). As with § 1, the court finds that plaintiff cannot state a claim for conspiracy becauseplaintiff has not alleged a plurality of actors and has made only very conclusory allegations of conspiracy. Thus,the court finds plaintiff has not stated a claim for combination or conspiracy to monopolize. Count I of thecomplaint is dismissed.B. Clayton Act (Count II)-9-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8649

Plaintiff contends that defendants’ refusal to provide escrow account services was a denial of a criticalfacility in violation of the Robinson-Patman Act, located at 15 U.S.C. § 13 of the Clayton Act. The Robinson-Patman Act, in part, makes it “unlawful for any person to discriminate in favor of one purchaser against anotherpurchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnishor furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing,handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchaserson proportionally equal terms.” § 13(e) (emphasis added).The court finds plaintiff cannot state a claim under the Robinson-Patman Act, because the act prohibitsonly the sale of commodities. As numerous courts have held, the Act does not concern the sale of services,including financial services as provided by defendants in this case. E.g., Metro Communications Co. v.Ameritech Mobile Communications, Inc., 984 F.2d 739, 745 (6 th Cir. 1993); Norte Car Corp. v. FirstBankCorp., 25 F. Supp. 2d 9, 18 (D.P.R. 1998). Count II is dismissed.C. Hobbs Act (Count III)Plaintiff states defendants violated the Hobbs Act’s provision against racketeering, 18 U.S.C. §1951(b)(2), “by preventing plaintiff’s entry into commerce under color of official right.” The court is persuadedby the findings of other courts which have determined that no private right of action exists to enforce the HobbsAct. See Wisdom v. First Midwest Bank of Poplar Bluff, 167 F.3d 402, 408-09 (8 th Cir. 1999) (citing casesand holding that “neither the statutory language of 18 U.S.C. § 1951 nor its legislative history reflect an intentby Congress to create a private right of action”).Even if such an action were authorized, there is no showing that defendants - private parties - acted withthe requisite “official color of right.”-10-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8650

In general, proceeding against private citizens on an official right theory isinappropriate under the Act, irrespective of the actual control that citizenpurports to maintain over governmental activity. Private persons have beenconvicted of extortion under color of official right, but these cases have beenlimited to ones in which a person masqueraded as a public official, was in theprocess of becoming a public official, or aided and abetted a public official’sreceipt of money to which he was not entitled.35 C.J.S. Extortion § 12. The complaint contains no contention that defendants presented themselves as publicofficials or acted in any manner connected with a public official. Plaintiff cannot state a claim under the HobbsAct. Count III is dismissed.D. USA PATRIOT Act Claims (Counts IV-VI)Prior to analyzing plaintiff’s legal arguments, the court reminds plaintiff’s counsel that, by signing thecomplaint and any other paper submitted to the court, he has certified, to the best of his belief and after areasonable inquiry, that “the claims, defenses, and other legal contentions therein are warranted by existing lawor by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishmentof new law.” Fed. R. Civ. P. 11 (b)(2). Plaintiff’s counsel is advised to take greater care in ensuring that theclaims he brings on his clients’ behalf are supported by the law and the facts.Plaintiff seeks to bring claims that defendants failed to properly train their employees on the USAPATRIOT Act (hereinafter “Patriot Act”) or provide a compliance officer related to the Act, violating section352 of the Act, codified at 31 U.S.C. § 5318 (Count IV); “misused their authority” and engaged in excessiveuse of force as “enforcement officers” under the Act (Count V); and “violated criminal laws to influence publicpolicy” under the Act (Count VI). The Act states, in relevant part,(h) Anti-money laundering programs.--(1) In general.--In order to guard against money laundering through financial institutions,each financial institution shall establish anti-money laundering programs, including, at a-11-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8651

minimum--(A) the development of internal policies, procedures, and controls;(B) the designation of a compliance officer;(C) an ongoing employee training program; and(D) an independent audit function to test programs.31 U.S.C. § 5318 (h).First, with regard to Count IV, the court finds plaintiff lacks standing. The court is obligated to raise theissue of standing sua sponte to ensure that an Article III case or controversy exists. PeTA, People for theEthical Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1202 (10 th Cir. 2002). “To establish ArticleIII standing, the plaintiff must show injury in fact, a causal relationship between the injury and the defendants’challenged acts, and a likelihood that a favorable decision will redress the injury.” Id. (citing Lujan v. Defendersof Wildlife, 504 U.S. 555, 560-61 (1992). In ruling on a motion to dismiss for lack of standing, the court “mustaccept as true all material allegations of the complaint, and must construe the complaint in favor of thecomplaining party.” Ward v. Utah, 321 F.3d 1263, 1266 (10 th Cir. 2003) (citing Warth v. Seldin, 422 U.S.490, 501, (1975)).Here, the court finds plaintiff lacks standing because it has failed to allege a redressable injury. Evenif defendants failed to train their employees in order to guard against money laundering and also failed todesignate a compliance officer as required by the Act, plaintiff has not pled that it was injured due to suchomissions. Moreover, there is no basis to conclude that any order from the court directing defendants to complywith the Act could redress plaintiff’s grievance that defendants denied plaintiff escrow services.Second, the court finds that, even if Count IV were justiciable, no private right of action exists to enforcethe Patriot Act. As a result, Counts IV, V, and VI fail to state a claim for which relief can be granted. Plaintiff-12-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8652

has not identified a provision of the Patriot Act expressly authorizing enforcement by private citizens. In itsresponse to the motion to dismiss, plaintiff states that the failure to train and excessive use of force claims areactionable under 42 U.S.C. § 1983.Section 1983 provides a cause of action against any person who, under color of state law, deprivesa person “of any rights, privileges, or immunities secured by the Constitution and laws.” § 1983 (emphasisadded). The complaint has failed to allege that defendants acted under color of state law, an essential elementof a § 1983 suit. E.g., Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10 th Cir. 1983). Although plaintifflater states in its response that defendants acted “as an agent for the Department of the Treasury” 3 and that §1983 liability may extend to private individuals if they engage in joint action with state officials, these allegationsdo not appear in the complaint and are, nevertheless, so conclusory that they cannot state a claim. See, e.g.,Hunt v. Bennett, 17 F.3d 1263, 1268 (10 th Cir. 1994); Sooner Prods. Co., 708 F.2d at 512. (“When aplaintiff in a § 1983 action attempts to assert the necessary ‘state action’ by implicating state officials or judgesin a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments areinsufficient; the pleadings must specifically present facts tending to show agreement and concerted action.”).In Blessing v. Freestone, the Supreme Court explained the factors courts must consider in determining whethera statute gives rise to a right enforceable under § 1983:In order to seek redress through § 1983, however, a plaintiff must assert theviolation of a federal right, not merely a violation of federal law. We havetraditionally looked at three factors when determining whether a particularstatutory provision gives rise to a federal right. First, Congress must have3 Plaintiff’s argument implicates action under color of federal rather than state law, thus giving rise toan action under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),rather than § 1983.-13-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8653

intended that the provision in question benefit the plaintiff. Second, the plaintiffmust demonstrate that the right assertedly protected by the statute is not so“vague and amorphous” that its enforcement would strain judicial competence.Third, the statute must unambiguously impose a binding obligation on theStates. In other words, the provision giving rise to the asserted right must becouched in mandatory, rather than precatory, terms.520 U.S. 329, 340 (1997) (citations omitted). Plaintiff has not alleged the existence of any of these necessaryelements.Further, plaintiff has not attempted to state a claim that an implied private right of action exists under theAct. “A plaintiff asserting an implied right of action under a federal statute bears the relatively heavy burden ofdemonstrating that Congress affirmatively contemplated private enforcement when it passed the statute. In otherwords, he must overcome the familiar presumption that Congress did not intend to create a private right ofaction.” Casas v. Am. Airlines, Inc., 304 F.3d 517, 521 (5 th Cir. 2002); see also Cort v. Ash, 422 U.S. 66,78 (1975) (setting forth the four-factor test for whether a statute creates an implied private right of action as(1) whether plaintiff is a member of the class for whose benefit the statute was passed; (2) whether there isevidence of legislative intent, either explicit or implicit, to create or deny a private remedy; (3) whether it isconsistent with the legislative scheme to imply a private remedy; (4) whether the cause of action [is] onetraditionally relegated to state law so that implying a federal right of action would be inappropriate). Thecomplaint alleges none of these elements.Finally, with regard to Count VI in particular, in which plaintiff actually contends defendants “arepreventing [plaintiff]’s entry into commerce in violation of Section 802 of the USA Patriot Act which createsa federal crime of ‘domestic terrorism’ that broadly extends to ‘acts dangerous to human life that are a violationof the criminal laws,” the court finds plaintiff’s allegation so completely divorced from rational thought that the-14-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8654

court will refrain from further comment until such time as federal criminal proceedings are commenced, if indeedthey ever are.Counts IV, V, and VI are dismissed.E. State Law Claims (Counts VII-XIII)Federal district courts have supplemental jurisdiction over state law claims that are part of the “samecase or controversy” as federal claims. 28 U.S.C. § 1367(a). “[W]hen a district court dismisses the federalclaims, leaving only supplemented state claims, the most common response has been to dismiss the state claimor claims without prejudice.” United States v. Botefuhr, 309 F.3d 1263, 1273 (10 th Cir. 2002) (quotationmarks, alterations, and citation omitted). If the parties have already expended “‘a great deal of time and energyon the state law claims,’ it is appropriate for the district court to retain supplemented state claims after dismissingall federal questions.” Vllalpando v. Denver Health & Hosp. Auth., 2003 WL 1870993, at *5 (10 th Cir.2003) (citing Botefuhr, 309 F.3d at 1273). Here, the court finds no compelling reason to retain jurisdictionover the state law claims, and dismisses them without prejudice.IV.Orderare granted.IT IS THEREFORE ORDERED THAT defendants’ Motions to Dismiss (Docs. 21, 23, and 25)IT IS FURTHER ORDERED THAT defendants’ Motion to Strike Plaintiff’s Answer to Defendants’Reply (Doc. 30) is dismissed as moot.IT IS FURTHER ORDERED THAT this case is hereby dismissed.-15-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8655

Dated this 16th day of June 2003, at Kansas City, Kansas.s/ Carlos MurguiaCARLOS MURGUIAUnited States District Judge-16-08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8656

110. Plaintiff re-alleges paragraphs 1 through 109 above.111. Defendants violated The Hobbs Act prohibition against racketeering bypreventing MSCI’s entry into commerce under color of official right in violation of18 U.S.C. 1951(b)(2).112. Defendants committed an unusual act for banks by denial of service andfacilities for plaintiff MSCI’s escrow accounts in bad faith or nonperformance oftheir duty as financial institutions and employees. Defendants “under color ofofficial right” through invocation of the USA PATRIOT Act deny and threatenMSCI’s access to service at any national bank that MSCI, its customers orassociates require to conduct their business, effecting the unjust enrichment ofthe Defendants and their related healthcare suppliers and distributors combine,preventing MSCI’s services from entering into commerce in violation of TheHobbs Act, 18 U.S.C. 1951(b)(2).113. Defendants are extensively invested in selected healthcare suppliers. Theprofits of these healthcare companies are dependent on a current market wherecompetition in pricing is severely curtailed. Defendants’ US BANCORP NA profithas not increased proportionately to its acquisition of banks and traditionalcommercial banking business. Defendants are consequentially dependant onrevenue from their private banking, trust and investment banking divisions whichare disproportionately concentrated in healthcare suppliers engaging inanticompetitive business practices.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 865746

114. Defendants’ US BANCORP NA , despite the patriotic appellation “USBANK” in red white and blue signage that it places on its newly acquired Kansasand Missouri banks, is unlike a traditional American bank in that Defendants USBANCORP NA functions like an Asian bank interlinked in an industry groupcombine, acting against the combine’s industry competitors and aiding thecombine’s allies. In Japan a similar industry group would be called a “Keiretsu”ior in Korea a “Chaebol.” The Defendants’ vertically integrated monopoly actingin consort with their healthcare suppliers and distributors combine in efforts toprevent MSCI from entering into commerce through the misuse of the USAPatriot Act are extorting property from MSCI, its associates and customers.115. The Defendants did not do the investigation of MSCI they claimed wasrequired under the USA PATRIOT Act and sought to harm MSCI out of anundisclosed profit incentive. In using the USA PATRIOT Act the Defendants areusing force or in the alternative acting under color of law in taking property fromMSCI its associates and customers.116. This bad faith performance of its regulator imposed and customerexpected duty was made self evident by the Defendants’ St. Louis TrustDepartment telling MSCI that it “did not understand why MSCI went to them andnot MSCI’s local bank” without even realizing MSCI was already an establishedUS BANCORP NA client customer with a corporate checking account and apending corporate credit application, or that MSCI’s chief executive was anestablished checking account holder.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 865847

117. Plaintiff MSCI has accepted voluntarily that it will be delayed, suffer lostprofits, injury to its associates and loose some or all of the ten best candidatesfor bringing its electronic marketplace and supply chain management softwareservices to commerce. The Defendants have the power to label MSCI as amoney laundering suspect or to do their normal duty of diligence and discoverMSCI, its candidates and associates are upstanding citizens with documentedfunds. MSCI may reluctantly have no choice but to wait until the Defendants’healthcare suppliers and distributors develop a strategy to counter MSCI’sneutral electronic marketplace and cost reducing supply chain managementsoftware before the Defendants allow MSCI the escrow accounts it needs toenter the healthcare supply marketplace.118. MSCI’s chief executive prudently fears that bad faith reporting under theUSA PATRIOT Act by the Defendants to enrich their vertically integratedcombine will prevent MSCI from going to other financial institutions and openingescrow accounts or obtaining other banking services, including the clearing andsettlement of over 90 million dollars in annual healthcare supply transactions,foreign exchange conversion and purchasing finance, all of which are far moresensitive and subject to greater anti-money laundering scrutiny under know yourcustomer laws and the USA Patriot Act.119. The Defendants have opposed MSCI’s requested injunctive relief whichwould have temporarily ordered US BANCORP NA and its employees to stopsecretly reporting negative information against MSCI under the USA Patriot Act08-3187 Medical Supply Chain vs. Neoforma Volume XXII 865948

until adequate training and the required compliance officers were in place. TheDefendants have not denied exercising the USA Patriot Act against MSCI.120. The Defendants’ unprofessional conduct and lack of truthful disclosureabout USA PATRIOT Act based conduct continues to threaten the Plaintiff MSCI,its associates and customers through actions that may trigger similar surprisedenials of critical banking services at other financial institutions.121. The Public has been harmed by the Defendants extortion of MSCI that hasobstructed or delayed MSCI’s entry into commerce and the resulting cost savingsand increased availability of beneficial healthcare technologies. Over 2000hospitals nation-wide are endangered by the current anticompetitive market forhealthcare supplies and are harmed by the Defendants continued prevention ofMSCI from entering commerce. Public access to healthcare will be harmfully cutback if more hospitals are closed because they are unable to realize the 20%cost reduction provided through MSCI’s system.COUNT IV : FAILURE TO PROPERLY TRAIN EMPLOYEES ON USA PATRIOTACT OR PROVIDE A COMPLIANCE OFFICER122. Plaintiff re-alleges paragraphs 1 through 121 above.123. Defendants US BANCORP NA, US BANK; PRIVATE CLIENT GROUP,CORPORATE TRUST, INSTITUTIONAL TRUST AND CUSTODY, ANDMUTUAL FUND SERVICES, LLC., failed to provide training or adequate trainingto its employees or to designate a USA PATRIOT Act compliance officer in eachof its financial institutions as required under Section 352 of USA Patriot Act.Without training, employees of US BANCORP denied MSCI, a known domestic08-3187 Medical Supply Chain vs. Neoforma Volume XXII 866049

corporation in good standing with its Secretary of State and State Department ofRevenue an escrow account service even though it was not an activity that wasregulated under Section 312 effective July 23, 2002.124. Without having adequately trained employees and a USA PATRIOT Actmandated compliance officer in each of their financial institutions, the Defendantscontinue to endanger the plaintiff MSCI, its associates and customers withwrongful denial of services and facilities of US BANCORP NA where MSCI hasits accounts or at other national and state banks where MSCI and its associatesmay be harmed through denied services based on erroneous reporting by theDefendants.COUNT V: MISUSE OF AUTHORITY AND EXCESSIVE USE OF FORCE ASENFORCEMENT OFFICERS UNDER THE USA PATRIOT ACT125. Plaintiff re-alleges paragraphs 1 through 124 above.126. The Defendants BRIAN KABBES, LARS ANDERSON and SUSAN PAINE,under knowing direction of Defendants ANDREW CESERE and JERRY A.GRUNDHOFER, repeatedly used the USA Patriot Act to deny services of USBANK, PRIVATE CLIENT GROUP, CORPORATE TRUST, INSTITUTIONALTRUST AND CUSTODY, AND MUTUAL FUND SERVICES, LLC. and USBANCORP NA to MSCI, causing the loss of MSCI property. The Defendants,despite their regulated status as financial institutions and corporate officers offinancial institutions responsible for providing a professional service; deniedMSCI, a known domestic corporation in good standing with its Secretary of Stateand State Department of Revenue an escrow account service on the basis of08-3187 Medical Supply Chain vs. Neoforma Volume XXII 866150

increased reporting requirements for new accounts under the USA PATRIOT Acteven though The US Treasury Department had previously announced it wasdelaying the date account opening requirements become issued and effectiveand US BANCORP was under no reporting requirements for MSCI’s escrowaccounts.127. The Defendants continue to endanger the plaintiff MSCI and its associateswith wrongful denial of services and facilities of US Bancorp NA where MSCI hasits accounts or at other national and state banks where MSCI may be deniedservices based on erroneous or bad faith reporting by the Defendants.128. The Defendants continue to endanger the plaintiff MSCI its associates andcustomers with wrongful denial of services and facilities of national and statebanks where MSCI may be denied services based on the Defendantsunprofessional and bad faith denial of escrow accounts based on the USPATRIOT Act. The Defendants action prevents MSCI from escaping the denial ofescrow accounts history and banking references in all new financialarrangements.129. On October 22, 2002 MSCI approached an attorney of Shook, Hardy andBacon for the purpose of acting as escrow agent in substitute accounts to be setup at a national bank. After asking why MSCI’s existing bank did not provide theaccounts, the attorney declined to act as escrow agent.COUNT VI: VIOLATION OF CRIMINAL LAWS TO INFLUENCE PUBLICPOLICY UNDER SECTION 802 OF THE USA PATRIOT ACT130. Plaintiff re-alleges paragraphs 1 through 129 above.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 866251

131. Defendants are preventing MSCI from entry into commerce to alleviatemarket collusion in healthcare supplies that has lead to injury and loss of life andcontinues to threaten US citizens. This healthcare supply emergency has beenthe subject of US agency action and investigation. Members and committees ofthe US Congress have begun inquiry into the failure of the healthcare supplymarket place for the purposes of creating public policy regulating marketparticipants. Defendants are preventing MSCI’s entry into commerce in violationof Section 802 of the USA PATRIOT Act which creates a federal crime of"domestic terrorism" that broadly extends to "acts dangerous to human life thatare a violation of the criminal laws" if they "appear to be intended…to influencethe policy of a government by intimidation or coercion," and if they "occurprimarily within the territorial jurisdiction of the United States."132. The Defendants continue to endanger the plaintiff MSCI, its associatesand customers with illegal conduct that prevents them from or threatens toprevent them providing a market solution to this governmental healthcare policyissue.Supplemental State Law Based Causes Of ActionCOUNT VII: MISAPPROPRIATION OF TRADE SECRETS133. Plaintiff re-alleges paragraphs 1-132 above.134. The Defendants have misappropriated MSCI’s business plan andassociate program containing MSCI’s trade secrets. The Defendants have madeuse of MSCI’s trade secrets through unauthorized copying and transmittal.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 866352

i Federal Antitrust Law: Cases and Materials; Gifford, Raskind2 nd Ed,200208-3187 Medical Supply Chain vs. Neoforma Volume XXII 866453

UNITED STATES COURT OF APPEALSFILEDUnited States Court of AppealsTenth CircuitFOR THE TENTH CIRCUITNOV 8 2004PATRICK FISHERClerkMEDICAL SUPPLY CHAIN, INC.,Plaintiff-Appellant,v.US BANCORP, NA; US BANKPRIVATE CLIENT GROUP;CORPORATE TRUST;INSTITUTIONAL TRUST ANDCUSTODY; MUTUAL FUNDSERVICES, LLC.; PIPER JAFFRAY;ANDREW CESERE; SUSAN PAINE;LARS ANDERSON; BRIAN KABBES;UNKNOWN HEALTHCARESUPPLIER,No. 03-3342(D.C. No. 02-CV-2539-CM)(D. Kan.)Defendants-Appellees.ORDER AND JUDGMENT *Before McCONNELL, HOLLOWAY, and PORFILIO, Circuit Judges.*This order and judgment is not binding precedent, except under the doctrines oflaw of the case, res judicata, and collateral estoppel. The court generally disfavors thecitation of orders and judgments; nevertheless, an order and judgment may be cited underthe terms and conditions of 10th Cir. R. 36.3.08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8665

After examining the briefs and appellate record, this panel has determinedunanimously to grant the partiesí request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore orderedsubmitted without oral argument.Medical Supply Chain, Inc. appeals from the dismissal of its complaint assertingclaims under the Sherman Antitrust Act, the Clayton Antitrust Act, the Hobbs Act, andthe USA Patriot Act, and various state law claims. In dismissing the complaint, thedistrict court determined that plaintiff failed to state a claim for relief under each of theantitrust acts and that there was no private right of action under the USA Patriot Act.Because the district court dismissed all of plaintiffís federal law claims, it declined toretain jurisdiction over appellantís state law claims. Plaintiff argues that the district courterred by: 1) dismissing plaintiffís antitrust claims by imposing a heightened pleadingstandard, 1 and 2) finding no private right of action under the USA Patriot Act. We reviewde novo the district courtís grant of a motion to dismiss pursuant to Fed. R. Civ. P.12(b)(6). Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999).Having reviewed the briefs, the record, and the applicable law pursuant to theabove-mentioned standard, we conclude that the district court correctly decided this case.We therefore AFFIRM the challenged decision for the same reasons stated by the districtcourt in its Memorandum and Order of June 16, 2003. Appellantís Motion to AmendComplaint on Jurisdictional Grounds is DENIED.Finally, in the district courtís order, the court reminded plaintiffís counsel of hisobligations under Rule 11 and stated ì[p]laintiffís counsel is advised to take greater care1Appellantís brief mentions its Clayton Act and Hobbs Act claims, but appellantfails to include any argument as to how the district court erred in dismissing those claims.See Aplt. Br. at 7-8, 19. Any issue with respect to those claims is therefore waived.Ambus v. Granite Bd. of Educ., 975 F.2d 1555 (10th Cir. 1992).208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8666

in ensuring that the claims he brings on his clientsí behalf are supported by the law andthe facts.î Aplt. App. Vol. II at 402. Plaintiff then proceeded to file this appeal that is notsupported by the law or the facts. Accordingly, we ORDER the plaintiff and plaintiffíscounsel to SHOW CAUSE in writing within twenty days of the date of this order whythey, jointly or severally, should not be sanctioned for this frivolous appeal pursuant toFed. R. App. P. 38. See Braley v. Campbell, 832 F.2d 1504, 1510-11 (10th Cir. 1987)(discussing courtís ability to impose sanctions against clients and their attorneys underFed. R. App. P. 38).Entered for the CourtJohn C. PorfilioCircuit Judge308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8667

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, ))v. ) Civil Action No. 02-2539-CM)US BANCORP, NA; US BANK, PRIVATE )CLIENT GROUP, CORPORATE TRUST, )INSTITUTIONAL TRUST AND )CUSTODY, AND MUTUAL FUND )SERVICES, LLC; PIPER JAFFRAY; )ANDREW CESERE; SUSAN PAINE; )LARS ANDERSON; BRIAN KABBES; )and UNKNOWN HEALTHCARE )SUPPLIER, ))Defendants. )DEFENDANTS’ MOTION FOR ATTORNEYS’ FEESPursuant to the United States Court of Appeals for the Tenth Circuit’s Order filed December30, 2004, Defendants collectively move this Court for an Order determining and awardingDefendants their attorneys’ fees incurred in opposing Plaintiff Medical Supply Chain, Inc.’sfrivolous appeal. In support of this motion, and as more fully set forth in the accompanyingMemorandum in Support, Defendants state:1. Plaintiff filed this action on October 22, 2002. Plaintiff filed an Amended Complainton November 12, 2002.2. On March 27, 2003, Defendants moved to dismiss Plaintiff’s Amended Complaint forfailure to state a claim upon which relief can be granted.3. In a Memorandum and Order dated June 16, 2003, the Court granted Defendants’motions to dismiss.1659587.108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8668

4. After the Court denied Plaintiff’s Motion for New Trial and Motion for Rule 52(b)Amendment of Judgment on November 19, 2003, Plaintiff appealed the dismissal of its AmendedComplaint to the United States Court of Appeals for the Tenth Circuit.5. On November 8, 2004, the court of appeals affirmed the Court’s June 16, 2003 Ordergranting Defendants’ motions to dismiss. The court of appeals also ordered Plaintiff and Plaintiff’scounsel to show cause why they should not be sanctioned for the frivolous appeal pursuant to Rule38 of the Federal Rules of Appellate Procedure.6. In an Order filed December 30, 2004, the court of appeals assessed attorneys’ feesand double costs against Plaintiff’s counsel as a sanction pursuant to Fed.R.App.P. 38 for filing afrivolous appeal. The court of appeals also remanded the case to this Court to determine the amountof attorneys’ fees to be awarded as a sanction.7. The court of appeals issued its Mandate on January 7, 2005. The Mandate was filedin this Court on January 10, 2005.8. Pursuant to the court of appeals’ December 30, 2004 Order, Defendants submit thismotion, the accompanying Memorandum in Support, and the attached exhibits to establish theamount of the attorneys’ fees incurred in opposing Plaintiff’s appeal from the Court’s June 16, 2003Order.9. As more fully set forth in the accompanying Memorandum in Support and attachedexhibits, Defendants incurred $23,956.00 in attorneys’ fees in successfully opposing Plaintiff’sappeal.WHEREFORE, Defendants respectfully request that the Court enter an Order: (1)determining that the amount of Defendants’ attorneys’ fees incurred in opposing Plaintiff’s frivolous1659587.1 208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8669

appeal is $23,956.00; and (2) awarding that amount to Defendants pursuant to the court of appeals’Order filed December 30, 2004.Respectfully submitted,/s/ Mark A. OlthoffMARK A. OLTHOFF U.S. KS Ct. #70339SHUGHART THOMSON & KILROY, P.C.Twelve Wyandotte Plaza120 W. 12th StreetKansas City, Missouri 64105(816) 421-3355(816) 374-0509 (FAX)STEVEN D. RUSE KS #11461ANDREW M. DeMAREA KS #16141SHUGHART THOMSON & KILROY, P.C.32 Corporate Woods, Suite 11009225 Indian Creek ParkwayOverland Park, Kansas 66210(913) 451-3355(913) 451-3361 (FAX)ATTORNEYS FOR DEFENDANTS1659587.1 308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8670

CERTIFICATE OF SERVICEI hereby certify that a copy of the above and foregoing document was filed electronicallywith the above-captioned court, with notice of case activity to be generated and sent electronicallyby the Clerk of said court (with a copy to be mailed to any individuals who do not receive electronicnotice from the Clerk) this 27th day of January, 2005 to:Bret D. Landrith, Esq.2961 SW Central Park, #G33Topeka, KS 66611Attorney for Plaintiff/s/ Mark A. OlthoffAttorney for Defendants1659587.1 408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8671

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, ))v. ) Civil Action No. 02-2539-CM)US BANCORP, NA; US BANK, PRIVATE )CLIENT GROUP, CORPORATE TRUST, )INSTITUTIONAL TRUST AND )CUSTODY, AND MUTUAL FUND )SERVICES, LLC; PIPER JAFFRAY; )ANDREW CESERE; SUSAN PAINE; )LARS ANDERSON; BRIAN KABBES; )and UNKNOWN HEALTHCARE )SUPPLIER, ))Defendants. )MEMORANDUM IN SUPPORT OFDEFENDANTS’ MOTION FOR ATTORNEYS’ FEESPlaintiff Medical Supply Chain, Inc.’s claims in this case were dismissed pursuant to Rule12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can begranted. Plaintiff appealed that dismissal, and the United States Court of Appeals for the TenthCircuit affirmed. (See Ex. A, Order and Judgment filed November 8, 2004.) The court of appealsalso found that Plaintiff’s appeal was frivolous and concluded that sanctions against Plaintiff’scounsel were appropriate pursuant to Rule 38 of the Federal Rules of Appellate Procedure. (See Ex.B, Order filed December 30, 2004.) The court of appeals assessed attorneys’ fees and double costsagainst Plaintiff’s counsel under Rule 38, and remanded to this Court to determine the amount ofattorneys’ fees to be awarded. See Ex. B at 9.1659766.108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8672

The court of appeals’ Mandate has been filed in this Court. (See Doc. # 52). Defendantstherefore move the Court to enter an Order determining the amount of attorneys’ fees incurred byDefendants in opposing Plaintiff’s frivolous appeal and awarding that amount to Defendants.Defendants’ counsel has analyzed the billing records applicable to this matter. The billingrecords applicable to the appeal are attached to this memorandum as Exhibit C. The records identifyeach time entry by date, the attorney or paralegal performing the work, time expended, and amount.Each time entry also contains a description of the work performed.After closely analyzing the billing records, Defendants’ counsel has determined that the totalamount of attorneys’ fees incurred in successfully opposing Plaintiff’s appeal is $23,956.00. (SeeEx. D, Declaration of Mark A. Olthoff, at 3.) In arriving at this amount, Defendants’ counsel hasincluded only those attorneys’ fees that are related to the appeal. (Id. at 4.) All attorneys feesassociated with the defense of the action in this Court or Plaintiff’s interlocutory appeal have beenexcluded. (Id. at 4, 7.)The attached billing records dated December 8, 2003 (Bill No. 469635) represent attorneys’fees incurred on behalf of all Defendants. (Ex. D at 6.) Beginning on December 8, 2003,Defendant Piper Jaffray was billed separately with all time divided equally between it and theremaining Defendants. (Id. at 6.) Separate billing records therefore exist for February, April, Mayand December 2004. (Id. at 6.) 1The $23,956.00 figure is verified and sworn pursuant to the Declaration of Mark A. Olthoff.(See Ex. D.) The $23,956.00 figure represents 91.7 hours of work performed in connection with theappeal. (Id. at 8.) Based on Defendants’ counsel’s detailed review of the billing records, andpersonal knowledge of the work completed, the attorneys’ fees sought are true, accurate, and1 A single bill was sent for August 2004 because Defendants’ counsel determined that thetime expended was low enough that division was unnecessary. (Id. at 6.)1659766.1 208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8673

easonable. (Id. at 9-11.) Moreover, the work underlying the attorneys’ fees was necessary toproperly oppose Plaintiff’s appeal. (Id. at 9-11.)CONCLUSIONFor the foregoing reasons, Defendants respectfully request that the Court enter an Orderdetermining that Defendants should be awarded $23,956.00 in attorneys’ fees. Defendants furtherrequest that the Court award that amount to Defendants pursuant to the court of appeals’ December30, 2004 Order.Respectfully submitted,/s/ Mark A. OlthoffMARK A. OLTHOFF U.S. KS Ct. #70339SHUGHART THOMSON & KILROY, P.C.Twelve Wyandotte Plaza120 W. 12th StreetKansas City, Missouri 64105(816) 421-3355(816) 374-0509 (FAX)STEVEN D. RUSE KS #11461ANDREW M. DeMAREA KS #16141SHUGHART THOMSON & KILROY, P.C.32 Corporate Woods, Suite 11009225 Indian Creek ParkwayOverland Park, Kansas 66210(913) 451-3355(913) 451-3361 (FAX)ATTORNEYS FOR DEFENDANTS1659766.1 308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8674

CERTIFICATE OF SERVICEI hereby certify that a copy of the above and foregoing document was filed electronicallywith the above-captioned court, with notice of case activity to be generated and sent electronicallyby the Clerk of said court (with a copy to be mailed to any individuals who do not receive electronicnotice from the Clerk) this 27th day of January, 2005 to:Bret D. Landrith, Esq.2961 SW Central Park, #G33Topeka, KS 66611Attorney for Plaintiff/s/ Mark A. OlthoffAttorney for Defendants1659766.1 408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8675

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, ))v. ) Civil Action No. 02-2539-CM)US BANCORP, NA; US BANK, PRIVATE )CLIENT GROUP, CORPORATE TRUST, )INSTITUTIONAL TRUST AND )CUSTODY, AND MUTUAL FUND )SERVICES, LLC; PIPER JAFFRAY; )ANDREW CESERE; SUSAN PAINE; )LARS ANDERSON; BRIAN KABBES; )and UNKNOWN HEALTHCARE )SUPPLIER, ))Defendants. )DEFENDANTS’ MOTION TO FILE EXHIBITS UNDER SEALPursuant to D. Kan. Local Rule 5.4.6, Defendants collectively move this Court for an Orderallowing them to file, under seal, two exhibits supporting Defendants’ contemporaneously filedMotion for Attorneys’ Fees. In support of this motion, Defendants state:1. On June 16, 2003, this Court entered a Memorandum and Order granting Defendants’motions to dismiss Plaintiff’s Amended Complaint for failure to state a claim upon which relief canbe granted. On November 8, 2004, the United States Court of Appeals for the Tenth Circuitaffirmed the dismissal.2. On December 30, 2004, the court of appeals directed that this case be remanded backto this Court to determine the amount of attorneys’ fees to be assessed against Plaintiff’s counsel andawarded to Defendants as a sanction pursuant to Rule 38 of the Federal Rules of AppellateProcedure.1662100.108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8693

3. The court of appeals issued its Mandate on January 7, 2005. The Mandate was filedin this Court on January 10, 2005.4. Pursuant to the court of appeals’ December 30, 2004 Order, Defendants havecontemporaneously filed a Motion for Attorneys’ Fees and Memorandum in Support of Motion forAttorneys’ Fees. Defendants have also submitted the court of appeals’ November 8, 2004 Order andJudgment and December 30, 2004 Order as exhibits to their Memorandum in Support.5. Two other exhibits that are referenced in, and intended to accompany, Defendants’Memorandum in Support have not been filed. Those exhibits are: (1) billing records for December2003 through December 2004 setting forth the attorneys’ fees sought by Defendants (Exhibit C); and(2) the Declaration of Mark A. Olthoff (Exhibit D), which verifies the amount of attorneys’ feessought by Defendants.6. The billing records contain detailed descriptions of the work performed by counselfor Defendants in representing Defendants during the course of the appeal. The billing records alsocontain rate information. The Declaration of Mark A. Olthoff likewise contains rate information inexplaining and verifying the attorneys’ fees sought.7. Based on the sensitive nature of the information contained in the billing records andDeclaration, and Defendants’ desire to keep the information confidential, Defendants respectfullyrequest that the Court enter an Order allowing Defendants to file the billing records and Declarationunder seal, with access limited to the Court, the attorneys of record, and the parties to this case.8. Neither Plaintiff nor Plaintiff’s counsel will be prejudiced by an Order allowing thebilling records and the Declaration to be filed under seal because they will nevertheless have fullaccess to both documents.1662100.1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8694

9. A proposed Order will be submitted to the Court via e-mail upon the filing of thisMotion.WHEREFORE, Defendants respectfully request that the Court enter an Order granting themleave to file under seal the billing records (Exhibit C) and Declaration of Mark A. Olthoff (ExhibitD) supporting Defendants’ Motion for Attorneys’ Fees.Respectfully submitted,/s/ Mark A. OlthoffMARK A. OLTHOFF U.S. KS Ct. #70339SHUGHART THOMSON & KILROY, P.C.Twelve Wyandotte Plaza120 W. 12th StreetKansas City, Missouri 64105(816) 421-3355(816) 374-0509 (FAX)STEVEN D. RUSE KS #11461ANDREW M. DeMAREA KS #16141SHUGHART THOMSON & KILROY, P.C.32 Corporate Woods, Suite 11009225 Indian Creek ParkwayOverland Park, Kansas 66210(913) 451-3355(913) 451-3361 (FAX)ATTORNEYS FOR DEFENDANTS1662100.1308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8695

CERTIFICATE OF SERVICEI hereby certify that a copy of the above and foregoing document was filed electronicallywith the above-captioned court, with notice of case activity to be generated and sent electronicallyby the Clerk of said court (with a copy to be mailed to any individuals who do not receive electronicnotice from the Clerk) this 27th day of January, 2005 to:Bret D. Landrith, Esq.2961 SW Central Park, #G33Topeka, KS 66611Attorney for Plaintiff/s/ Mark A. OlthoffAttorney for Defendants1662100.1408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8696

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASMEDICAL SUPPLY CHAIN, INC., ))Plaintiff, ))v. ) CIVIL ACTION)US BANCORP, NA; US BANK, PRIVATE ) No. 02-2539-CMCLIENT GROUP, CORPORATE TRUST, )INSTITUTIONAL TRUST AND )CUSTODY, AND MUTUAL FUND )SERVICES, LLC; PIPER JAFFRAY; )ANDREW CESERE; SUSAN PAINE; )LARS ANDERSON; BRIAN KABBES; )and UNKNOWN HEALTHCARE )SUPPLIER, ))Defendants. )ORDERBefore the court is defendants’ Motion to File Exhibits Under Seal (Doc. 56), filed January 27, 2005.For good cause shown, the court grants the Motion and orders that defendants are granted leave to file thebilling records (Exhibit C) and Declaration of Mark A. Olthoff (Exhibit D) supporting their Motion forAttorneys’ Fees (Doc. 54) under seal. Counsel for defendants are directed to provide the court with a diskcontaining a copy of the exhibits.IT IS SO ORDERED.Dated this 28th day of January 2005, at Kansas City, Kansas.s/ Carlos MurguiaCARLOS MURGUIAUnited States District Judge08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8697

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08-3187 Medical Supply Chain vs. Neoforma Volume XXII 8701

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASKANSAS CITY KANSAS DIVISIONMEDICAL SUPPLY CHAIN, INC., )Plaintiff , )vs. )US BANCORP, NA. )US BANK) CASE NO.: 02-2539-CMPRIVATE CLIENT GROUP, CORPORATE TRUST, )INSTITUTIONAL TRUST AND CUSTODY, )AND MUTUAL FUND SERVICES, LLC. )PIPER JAFFRAY )JERRY GRUNDHOFFER )ANDREW CESERE )SUSAN PAINE )LARS ANDERSON )BRIAN KABBES )UNKNOWN HEALTHCARE SUPPLIER )Defendants. )MOTION TO CONSOLIDATE UNDER RULE 42Comes now the plaintiff Medical Supply Chain, Inc., through its counsel Bret D. Landrith andmakes the present motion to consolidate actions. The plaintiff respectfully requests the court grant theplaintiff leave to consolidate under Federal Rules of Civil Procedure 42 for the following reasons:STATEMENT OF FACTS1. The plaintiff has a concurrent action against the principal defendants in this case, US Bancorp NA,US Bank, The Piper Jaffray Companies, Jerry Grundhoffer and Andrew Cesere where return of service hasbeen effected.2. The action is in the US District Court for the Western District of Missouri and is captionedMedical Supply Chain, Inc. v. Novation, et al., Case No. 05-0210-CV-W-ODS. Attachment 1.3. The federal claims in both cases rely on the same issues of law and share some of the same facts.4. The plaintiff is seeking review of the sua sponte appellate court panel award of sanctions in theUS Supreme Court.5. The plaintiff does not challenge the attorney hourly rate of the defendants and it is within the$360.00 an hour that the plaintiff believes is reasonable for antitrust work of this complexity exclusive ofthe enhancing factors under Ramos v. Lamm, 713 F.2d 546 at 558 (C.A.10 (Colo.), 1983).108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8702

6. The plaintiff’s motions for en banc rehearing put the parties on notice that related claims would bebrought in the Western District of Missouri and neither the defendants nor the court has raised issues thatmight bar the pursuit of antitrust claims against the defendants in Missouri federal court.MEMORANDUM IN SUPPORT OF MOTION TO CONSOLIDATEConsolidation is proper under Fed.Rules Civ.Proc. Rule 42, 28 U.S.C.A. for cases "involving acommon question of law or fact . . . pending before the court." American Emp. Ins. Co. v. King ResourcesCo., 545 F.2d 1265 at 1269 (C.A.10 (Colo.), 1976).“Plaintiffs may properly move to consolidate issuesthat, while convenient to litigate together, do not arise out of a single claim that must be litigated in a singleaction. This accords with the principles underlying the rules of permissive joinder and counterclaims inFed.R.Civ.P. 13(b) and 18(a).” Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329 at1334 (C.A.10 (Okl.), 1988).The plaintiff does not anticipate the relitigation of issues decided in this court since the plaintiff’sclaims resulting from the group boycott/refusal to deal and the filing of a USA PATRIOT Act suspiciousactivity report that the plaintiff sought to enjoin and obtain declaratory relief regarding occurred subsequentto the filing of the Kansas District Court action. However, there are reasons why redetermination of issueswould be appropriate:1) Substantial reason exists to doubt the quality of rulings made in the present action where theycontradict the express language of the USA PATRIOT Act (P.L.107–56 § 355 providing for civil liability),and controlling Tenth circuit law regarding unknown defendants where their identity can be obtainedthrough discovery (see Krueger v. Doe, 162 F.3d 1173 (C.A.10 (Okla.), 1993)) and regarding nondefendantantitrust coconspirators ( see Olsen v. Progressive Music Supply, Inc., 703 F.2d 432 at pg. 435 (C.A.10(Utah), 1983));2) Substantial reason exists to doubt the extensiveness of judgment where the trial court deniedpreliminary injunctive relief without memorandum and order, the trial court’s dismissal was sua sponte inthat it was not based on issues briefed by either party (“In sum, we conclude that the district court erred bygranting the motion to dismiss on grounds neither raised nor briefed by the parties.”) Volvo North AmericaCorp. v. Men's Intern. Professional Tennis Council, 857 F.2d 55 at 65(C.A.2 (N.Y.), 1988), and the trialcourt did not address the existence of coconspirators or the existence of private rights of action under the208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8703

USA PATRIOT Act raised by the plaintiff’s motion for reconsideration. Finally, the Tenth circuitmemorandum and order (See attachment 2) evidenced no independent judicial scholarship 1 and made nofindings of fact or law;3) The plaintiff discovered substantial reason to doubt the fairness of the present litigation in KansasDistrict Court and before the Tenth Circuit panel. The plaintiff’s Missouri complaint describes in detailconduct against Medical Supply and its agents designed to impede justice in the present Kansas DistrictCourt action. See Attachment 1 399-418 (pg.s 79-83), 578-586 (pg.s 108-110).The existence of any one of these three factors gives substantial doubt over the resolution of issuesin the present litigation and would permit, even warrant redetermination under Tenth Circuit authority:" '[r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, orfairness of procedures followed in prior litigation.' " Id. at 481, 102 S.Ct. at 1897 (quoting Montanav. United States, 440 U.S. 147, 164 n. 11, 99 S.Ct. 970, 979 n. 11, 59 L.Ed.2d 210 (1979)). LouisCook Plumbing & Heating, Inc. v. Frank Briscoe Co., 445 F.2d 1177, 1179 (10th Cir.1971)(refusing to bar through claim preclusion an action for labor and materials supplied in theperformance of a construction subcontract when the plaintiff "was actually denied the right tolitigate any issue in the prior action except Miller Act questions.").”1988).Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329 at 1334 (C.A.10 (Okl.),ConclusionWhereas for the above stated reasons, Medical Supply Chain, Inc. respectfully requests that thecourt consolidate the present case with the plaintiff’s claims raised in Missouri federal court and that allclaims be jointly tried in Medical Supply Chain, Inc. v. Novation, et al., Western District of Missouri CaseNo. 05-0210-CV-W-ODS.Respectfully SubmittedS/Bret D. LandrithBret D. LandrithKansas Supreme Court ID # 20380# G33,2961 SW Central Park,Topeka, KS 666111-785-267-40841 “Judicial opinions are the core workproduct of judges. They are much more than findings of fact andconclusions of law; they constitute the logical and analytical explanations of why a judge arrived at aspecific decision. They are tangible proof to the litigants that the judge actively wrestled with their claimsand arguments and made a scholarly decision based on his or her own reason and logic.” Bright v.Westmoreland County, No. 03-4320 at pg.4 (Fed. 3rd Cir. 8/24/2004) (Fed. 3rd Cir., 2004)308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8704

Certificate of Servicelandrithlaw@cox.netI certify I have served copies of this pleading upon opposing counsel listed below via electronicfiling and case management on March 24th, 2005.Mark A. OlthoffAndrew DeMareaShughart Thomson & Kilroy, PC--Kansas CityTwelve Wyandotte Plaza120 West 12th StreetKansas City, MO 64105816-421-3355Fax: 816-374-0509Email: molthoff@stklaw.comS/Bret D. LandrithBret D. LandrithKansas Supreme Court ID # 20380408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8705

UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF MISSOURIKANSAS CITY, MISSOURIMedical Supply CHAIN, INC., )Plaintiff, )v. ) Case No. 05-0210-CV-W-ODSNOVATION, LLC) Attorney LienNEOFORMA, INC. )ROBERT J. ZOLLARS )VOLUNTEER HOSPITAL ASSOCIATION )CURT NONOMAQUE )UNIVERSITY HEALTHSYSTEM CONSORTIUM )ROBERT J. BAKER )US BANCORP, NA )US BANK )JERRY A. GRUNDHOFFER )ANDREW CESERE )THE PIPER JAFFRAY COMPANIES )ANDREW S. DUFF )SHUGHART THOMSON & KILROY )WATKINS BOULWARE, P.C. )Defendants. )COMPLAINTComes now the plaintiff Medical Supply Chain, Inc., through its counsel, Bret D. Landrith andmakes the following complaint for federal antitrust and state contract related claims.Outline of PetitionJurisdiction1. Subject Matter Jurisdiction2. Personal Jurisdiction3. Venue4. Governing LawFacts1. Partiesa. Plaintiffb. Defendantsc. Coconspirators Not Named As Defendants In This Action2. The Relative Marketsa. The Nationwide Hospital Supply Marketb. The Nationwide e-commerce Hospital Supply Marketc. The Upstream Healthcare technology Company Capitalization Nationwide Market3. Anticompetitive Activity in the Subject Relevant Marketsa. The Harm To Buyers In The Marketi. The Harm to Hospitalsii. The Harm To Healthcare Services Consumersiii. Loss of Healthcare Insuranceiv. The Injury To Healthcare Insurance Plansv. The Loss Of Life From Decreased Access To Healthcareb. The Harm to Medical Supplyc. The Need For Private Antitrust Enforcementi. The Limited Resources Of The US Department Of Justice108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8706

ii. The Deaths of The FCA Attorneys4. Background Procedural Historya. Procedural Historyb. The Legal Basis For Now Ripe Monetary Damages Submitted to The Tenth Circuit5. The Hospital Group Purchasing Enterprise To Artificially Inflate Pricesa. The defendants’ hospital group purchasing enterprise6. The Origin of Technology That Made GPO’s Obsolete And Eliminated Two Distribution Levels7. The Defendants Foreclosure of Competition In The Market For Hospital Supplies ThroughExclusionary Contracts and Loyalty Agreements That Have The Same Exclusionary Effect.8. The Monopolization Of The Hospital Supply Industry By The Defendants In Conspiracies AndCombinations With Premier, GHX, LLC and Their Predecessor CorporationsEvents1. Andrew S. Duff And Piper Jaffray’s Concerted Refusal To Deal.2. US Bank’s Concerted Refusal To Deal.3. US Bancorp, Andrew Cesere and Jerry Grundhoffer’s Concerted Refusal To Deal.4. The Defendants’ Acceptance of Liability For Medical Supply’s Business Plan Damages.5. The Defendants’ Theft of Medical Supply’s Intellectual Property.6. The Effects of the Plan To Financially Destroy Medical Supply.7. US Bancorp, US Bank, Andrew Cesere And Jerry Grundhoffer Realize Because Of TheProspective Injunctive Relief Action Their Antirust Liability To Medical Supply And TheRequirement At Law That They Divest Piper Jaffray At A $750 Million Dollar Loss.8. US Bancorp, US Bank, Andrew Cesere And Jerry Grundhoffer Realize Because Of TheProspective Injunctive Relief Action Their Antirust Liability To Medical Supply And TheRequirement At Law That They Divest Piper Jaffray At A $750 Million Dollar Loss.9. Piper Jaffray And Andrew S. Duff Realize Because Of The Prospective Injunctive Relief ActionTheir Antirust Liability To Medical Supply And The Requirement At Law That They Divest TheirHealthcare Venture Fund, Losing $225,000,000.00 (255 million dollars) In Assets.10. Medical Supply Informs Robert J. Baker, UHC, Curt Nonomaque, VHA, Novation LLC, BobZollars And Neoforma that it has been unsuccessful in obtaining prospective injunctive anddeclaratory relief against their coconspirators Piper Jaffray, US Bancorp, US Bank, AndrewCesere And Jerry Grundhoffer and that the conspirators are jointly and severally liable for thedamages Medical Supply sought to avoid.11. Medical Supply is granted a Rehearing in Tenth Circuit. That Afternoon UHC and VHA RealizeBecause of Medical Supply’s Demand Letter That They Are Required At Law To DivestNeoforma and Both UHC and VHA Make an Emergency Announcement of An Agreement toDispose of Neoforma at a $150,000,000.00 (150 million dollar) loss.12. Novation, LLC realizes Because of Medical Supply’s Demand Letter That Its Relationship WithNeoforma and Its Long Term Anticompetitive Contract Are Illegal Antitrust prohibited ConductWithout Redeeming Value and Announces It Will Review Neoforma’s Value Creation.13. Robert J. Baker, UHC, Curt Nonomaque, VHA, Novation LLC, Bob Zollars And Neoformadecide to continue to rely on Piper Jaffray, US Bancorp, US Bank, Andrew Cesere And JerryGrundhoffer’s corrupt scheme to influence the court.14. Robert J. Baker, UHC, Curt Nonomaque, VHA, Novation LLC, Bob Zollars And Neoforma’sUtilization of Ongoing Sham Petitioning By Shughart, Thomson & Kilroy, Piper Jaffray, USBancorp, US Bank, Andrew Cesere And Jerry Grundhoffer To Deprive Medical Supply ofCounsel.15. The Impending Threat Of Monopolization of the Market For Hospital Supplies In E-Commerce.Summary Of ClaimsClaims For ReliefCOUNT IDamages For Combination And ConspiracyIn Restraint Of Trade Or Commerce(15 U.S.C. §§ 1,15)Group Boycott Under Sherman 1Allocation of Customers Under Sherman 1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8707

Horizontal Price Restraint Under Sherman 1Vertical Price Restraint Under Sherman 1Tying Agreements Under Sherman 1COUNT IIInjunctive Relief For Combination And ConspiracyIn Restraint Of Trade Or Commerce(15 U.S.C. §§ 1,26)COUNT IIIDamages For Monopolization(15 U.S.C. §§ 2,15)Threat of USA PATRIOT Act Suspicious Activity ReportingViolation of §802 of The USA PATRIOT ActThe Filing of a Malicious USA PATRIOT Act Suspicious Activity Report (SAR)Harassing Medical Supply and its Agents Outside of This ActionUnilateral Refusal To DealCOUNT IVInjunctive Relief For Monopolization(15 U.S.C. §§ 2,26)COUNT VDamages For Interlocking Directors(15 U.S.C. § 19)COUNT VIDamages For Combination And ConspiracyIn Restraint Of Trade Or Commerce(26 MO. § 416.031(1), § 416.121(1),(1))COUNT VIIInjunctive Relief For Combination And ConspiracyIn Restraint Of Trade Or Commerce(26 MO. § 416.031(1), § 416.071(1), (2), § 416.121(1)(1))COUNT VIIIDamages For Monopolization(26 MO. § 416.031(2), § 416.121(1),(1))COUNT IXInjunctive Relief For Monopolization(26 MO. § 416.031(2), § 416.071(1), (2), § 416.121(1),(2))COUNT XDamages For Tortuous Interference WithContract Or Business ExpectancyCOUNT XIDamages For Breach Of ContractCOUNT XIIDamages For Breach Of Fiduciary DutyCOUNT XIIIDamages For Fraud And DeceitCOUNT XIVDamages For Prima Facie TortCOUNT XVDamages For RacketeeringInfluenced Corrupt Organization (RICO) Conduct(18 U.S.C. § 1962(c), 18 U.S.C. § 1962(d))COUNT XVIDAMAGES FOR MALICIOUS FILING OF A SUSPICIOUS ACTIVITYREPORT (SAR) UNDER THE USA PATRIOT ACT(Pub. L. No. 107-56 (2001),18 U.S.C.§1030 (e), 31 U.S.C. § 5318 (g)(3))Tolling Of Applicable Statutes Of LimitationsPrayer For Relief308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8708

ConclusionDemand For Trial By JuryDesignation Of Place Of TrialJURISDICTION1. Subject Matter Jurisdiction. This complaint is filed and this action instituted under Sections 4and 15 of the Clayton Act (15 U.S.C. SS 14 and 26) to recover damages for injuries to plaintiff's businessand property by reason of the violations by the defendants of Sections 1 and 2 of the Sherman Act (15U.S.C. SS 1, 2), and to enjoin the defendants from continuing to commit such violations in the future andthe Declaratory Judgment Act, 28 U.S.C. SS 2201 and 2202. Jurisdiction of this Court is proper under 15U.S.C. SS 15 and 26, 28 U.S.C. SS 1331, 1332 and 1337, and the doctrine of pendent jurisdiction. Theamount in controversy exceeds $75,000.00, exclusive of interest and costs.2. The business and acts of the defendants described herein are conducted in, and affect commercebetween and among, the various states of the United States and between the United States and foreignnations and their territories. The unlawful acts of the defendants alleged hereinafter have restrainedinterstate trade and commerce.3. This complaint includes claims under the Racketeer Influenced and Corrupt Organizations Act(“RICO”), 18 U.S.C. § 196, et seq., a federal question with an amount in controversy exceeding$75,000.00, exclusive of interest and costs.4. This complaint includes claims under The Uniting and Strengthening America by ProvidingAppropriate Tools Required to intercept and Obstruct Terrorism Act of 2001 (The USA PATRIOT Act)Pub. L. No. 107-56 (2001), a federal question with an amount in controversy exceeding $75,000.00,exclusive of interest and costs.5. In connection with the acts alleged in this complaint, defendants, directly or indirectly, used themeans and instrumentalities of interstate commerce, including, but not limited to, the mails, interstatetelephone communications and the facilities of interstate commercial carriers.6. This complaint includes claims based on the existence of a written contract under ElectronicSignatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq. involving a contract made ininterstate commerce and affecting commerce among several states with an amount in controversyexceeding $75,000.00, exclusive of interest and costs.408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8709

7. Personal Jurisdiction. The court has personal jurisdiction over the parties who are in theterritorial limits of the United States and who have sufficient contacts with the State of Missouri.8. Venue. Many of the acts charged herein, occurred in substantial part in the District for WesternMissouri and the District of Kansas. Defendants conducted other substantial business within this Districtand the plaintiff’s corporate headquarters are within this district.9. Governing Law. This court has jurisdiction over supplemental state law based claims arisingfrom the common law of trusts, contracts and fiduciary duty under 28 U.S.C. § 1367. The Laws of the Stateof Missouri apply to the plaintiff’s state law claims and govern their resolution.FACTS1. PARTIESa. Plaintiff10. Plaintiff Medical Supply Chain, Inc. (Medical Supply), is a Missouri Corporation with corporateheadquarters at 1300 NW Jefferson Court, Blue Springs, MO 64015.b. Defendants11. Defendant Novation LLC. (Novation) is a company headquartered at 125 East John CarpenterFrwy Suite 1400 Irving, TX 75062.12. Defendant Neoforma Inc. (Neoforma) NYSE Symbol NEOF, 3061 Zanker Road, San Jose,California 95134.13. Defendant Robert J. Zollars is CEO of Neoforma, 3061 Zanker Road, San Jose, California 95134.14. Defendant Volunteer Hospital Association of America, Inc. (VHA Inc.) is a corporationheadquartered at 220 E. Las Colinas Blvd., Irving, TX 75039.15. Curt Nonomaque, President and CEO, VHA Inc., 220 E. Las Colinas Blvd., Irving, TX 75039.16. Defendant University Healthsystem Consortium (UHC) is a company headquartered at 2001Spring Road, Suite 700 Oak Brook, Illinois 60523-1890.17. Robert J. Baker, President and CEO of UHC, 2001 Spring Road, Suite 700 Oak Brook, Illinois60523.18. Defendant US Bancorp, NA (US Bancorp) NYSE symbol USB is a bank holding corporationheadquartered at U.S. Bancorp Center 800 Nicollet Mall, Minneapolis, MN 55402.508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8710

19. Defendant US Bank, NA is a Delaware Corporation organized under the National Bank Act, 12U.S.C. §§ 21-216d, headquartered at U.S. Bancorp Center 800 Nicollet Mall, Minneapolis, MN 55402.20. Defendant Jerry A. Grundhoffer, the President and Chief Executive Officer of US Bancorp. Hisoffices are at 800 Nicollet Mall, Minneapolis, MN 55402. He is not a citizen of Missouri.21. Defendant Andrew Cesere is Vice Chairman of US Bancorp trust division. His offices are at 800Nicollet Mall, Minneapolis, MN 55402. He is not a citizen of Missouri.22. Defendant Piper Jaffray Companies, (Piper Jaffray) NYSE symbol PJC is a company located at800 Nicollet Mall, Minneapolis, MN 55402.23. Defendant Andrew S. Duff, CEO of Piper Jaffray, 800 Nicollet Mall, Minneapolis, MN 55402. Heis not a citizen of Missouri.24. Shughart Thomson & Kilroy Watkins Boulware, P.C., (Shughart, Thomson & Kilroy) is a companylocated at 120 W. 12TH STE 1600, Kansas City MO 64105c. Coconspirators Not Named As Defendants In This Action25. Premier, Inc. (Premier) 12225 Camino Real, San Diego, CA 92130.26. Global Health Exchange LLC (GHX), 11000 Westmoor Circle, Suite 400Westminster, Colorado 80021.27. General Electric Company, (GE) NYSE symbol GE, 3135 Easton Turnpike, Fairfield, CT 06828-0001.28. GE Healthcare, global headquarters, Chalfont St. Giles, United Kingdom, USA headquarters,Technologies: Waukesha, Wisconsin.29. General Electric Capital Business Asset Funding Corporation, (GE Capital), 3135 EastonTurnpike, Fairfield, CT 06828-0001.30. GE Transportation Systems Global Signaling, L.L.C. (GE Transportation) 3135 Easton Turnpike,Fairfield, CT 06828-0001.31. Jeffrey R. Immelt, CEO of GE and former president of (GE Healthcare) 3135 Easton Turnpike,Fairfield, CT 06828-0001.32. Robert Betz, president of Robert Betz Associates, Inc.2. THE RELATIVE MARKETS608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8711

a. The Nationwide Hospital Supply Market33. The market for hospital supplies includes all products used in the provision of healthcare servicesat doctor’s offices, clinics, nursing homes, hospitals and health systems made up of multiple hospitals andoutpatient facilities, nationwide.34. Hospital supplies include everything from consumable bandages, dressings and pharmaceuticals tofacility supplies including linens, instruments, test equipment, cleaning supplies, food and permanentlyinstalled laboratory equipment and physical plant machinery.35. Currently, the market for hospital supplies is 1.8 trillion dollars in expenditures annually.36. Two hospital group purchasing organizations, Novation, Inc. and Premier Inc. which originated ascooperative buyer’s agents for hospitals currently control which products are available to 70% of thenation’s hospitals.b. The Nationwide e-commerce Hospital Supply Market37. The e-commerce market includes all the products in the range of hospital supplies described abovewhen they are selected from on line catalogs or purchased through Internet and World Wide Webcommunications from an electronic marketplace.38. The e-commerce market also includes supply chain management software used in healthcare toenhance the advantages of web based suppliers over traditionally distributed goods which adds value in theform of obtaining product information, aggregating comparable or substitutable products to maximizecompetition in pricing, bidding, ordering, shipping, fulfillment and logistics.39. The use of artificial intelligence software by electronic marketplaces radically increases theefficiency and decreases the costs of products available through traditional distribution systems.40. Originally there were over a hundred e-commerce electronic marketplaces for hospital supplies.Now there are just two, Neoforma, Inc. the web based supplier controlled by Novation and GHX, LLC aweb based supplier controlled by Premier and other members in a joint venture of formerly competinghospital manufacturers and suppliers.41. Medical Supply and its founder Samuel Lipari created the concept of an electronic marketplace forhospital supplies based on an insurance clearing house model in 1995 but has been prevented from enteringthe market independent from the control of Novation and Premier.708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8712

c. The Upstream Healthcare technology Company Capitalization Nationwide Market42. The ability to finance research and development and to create working technological solutions iscommonly shouldered by the entrepreneur, his family and friends until the technology can be demonstratedand its utility can be quantified.43. Healthcare technology companies and supply chain management companies (throughout thiscomplaint, supply chain management companies will refer to companies with software applications thatmanage hospital supplies in the healthcare industry) create products that can be used throughout the nation,meeting a universal demand and necessitate capitalization to reach that market quickly as opposed toattempting to grow from region to region as a bricks and mortar retail store or services industry businessmight. Failure of the healthcare technology or supply chain management company to meet the demand forits product results in competitors substituting other technological solutions and meeting the demand beforethe entrepreneur can pay the cost of his research and development or repay the sources of capital used inentering the market.44. US Bancorp NA and Piper Jaffray concentrated 70% of their investment in healthcare and createda 150 million dollar healthcare technology venture fund to capitalize healthcare technology and supplychain management companies.45. US Bancorp Piper Jaffray was the leading capital source for healthcare technology companies andfor supply chain management software that could be adapted to healthcare.46. US Bancorp Piper Jaffray also provided research to institutional investors and published coverageof publicly traded healthcare technology companies that gave it the power to dominate the early stagecapitalization of privately owned healthcare technology companies and whether the company would beselected for an initial public offering, the largest capitalization event for an entrepreneur and whether amarket would be made or demand exist for the shares of the offering once they were marketed.3. ANTICOMPETITIVE ACTIVITY IN THE SUBJECT RELEVANT MARKETS47. “Most health care costs are covered by third parties. And therefore, the actual user of health care isnot the purchaser of health care. And there's no market forces involved with health care.” President GeorgeW. Bush, Second Presidential Debate, October 14, 2004808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8713

48. The hospital supply market is recognized to be anticompetitive See The Exclusion of CompetitionFor Hospital Sales Through Group Purchasing Organizations June 25, 2002 by Harvard Law ProfessorEiner Elhauge and The US General Accounting Office report Pilot Study Suggests Large Buying GroupsDo Not Always Offer Hospitals Lower Prices April 30, 200249. On 4/30/02 Elizabeth A. Weatherman, Managing Director Warburg Pincus, LLC and Vice Chairof the Medical Group of the National Venture Capital Association testified before the Senate that“...companies subject to, or potentially subject to, anti-competitive practices by GPOs will not befunded by venture capital. As a result, many of these companies and their innovations will die, even ifthey offer a dramatic improvement over an existing solution.” [emphasis added]50. She was called back on July16, 2003 because of the Judiciary’s Antitrust Subcommittee concernsthat GPO monopoly power and unethical conduct is still starving their healthcare technology competitors ofcapitalization.51. US Bancorp Piper Jaffray was fined for acts of extortion against a healthcare technology companyattempting to capitalize itself with another investment bank in the upstream relevant market of healthcarecapitalization The article cited why the National Association of Securities Dealers fined Piper Jaffray butthe conduct is also a Sherman 2 monopolization violation: “The NASD investigation found a Pipermanaging director, Scott Beardsley, threatened to discontinue coverage of Antigenics Inc., a biotech firm, ifit did not select Piper as a lead underwriter for a planned secondary stock offering. As part of a settlementwith the NASD, Piper was censured and fined $250,000 and Beardsley was censured and fined $50,000.”52. In August of 2000 Piper Jaffray proffered positive research to ThermaSense, a medical technologyit was interested in providing investment-banking services to. Piper Jaffray won the business of the firm,and $3.8 million in investment banking fees. Such exchanges of positive research for investment bankingbusiness constitute “conflict of interest” by fair dealing standards.53. Premier helped to set up American Pharmaceutical Partners in 1996, then steered hospital businessto it. For this help and an initial $100 investment, Premier received American Pharmaceutical stock thatwas worth $46 million when the company went public in 2001. Premier also receives a percentage of themoney that hospitals spend buying American Pharmaceutical's drugs. William J. Nydam, once an executivevice president of Premier, received stock options as an American Pharmaceutical director. He has since left908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8714

Premier, but his options were worth $1.2 million at the stock's initial offering price. Palmer Ford, whoworked for Premier's venture capital unit, received an undisclosed number of American Pharmaceuticaloptions for consulting work after he had left the buying group. Mary Williams Walsh, “When a Buyer forHospitals Has a Stake in Drugs It Buys”, NY Times March 26, 2002.54. Two Medical Supply legal actions to enjoin the Defendants from causing the breach of contractsto capitalize Medical Supply’s entry to market were described to the third Senate Judiciary hearing on theGPO problem because of the important public policy being defeated by antitrust violations against e-commerce suppliers:“[A] bank tied to an investment house that has seventy percent of its holdings in health caresuppliers refused to provide the company with simple escrow services through a blatantmisapplication of the USA Patriot Act. Most recently an international conglomerate that is a founderof GHX was willing to take a $15 million dollar loss on a real estate deal just to keep this companyout of the market.”Testimony of Lynn James Everard, “Hospital Group Purchasing: Has the Market Become More Open toCompetition?” United States Senate Committee on the Judiciary Subcommittee on Antitrust, Competitionand Business and Consumer Rights July 16, 2003.55. On 7/15/02 The NY Times reported the investigation of antitrust conduct of US Bancorp and PiperJaffray’s coconspirator Novation:“Premier and Novation are also being investigated by the Federal Trade Commission and the GeneralAccounting Office, the investigative arm of Congress. The F.T.C. wants to know if the groups, whichlast year negotiated contracts worth more than $30 billion, are wielding too much control in themarket for hospital supplies. The G.A.O. has already issued a preliminary report that questionswhether the groups actually save hospitals money.”56. By 8/21/04 The NY Times reported that the Justice Department had opened a broad criminalinvestigation of the medical-supply industry revealing that Novation is being subjected to a criminalinquiry:“Novation's primary business is to pool the purchasing volume of about 2,200 hospitals, as well asthousands of nursing homes, clinics and physicians' practices, and to use their collective power tonegotiate contracts with suppliers at a discount. In many cases, the contracts offer special rebates tohospitals that meet certain purchasing targets. Although Novation is not well known outside theindustry, it wields formidable power because it can open, or impede, access to a vastinstitutional market for health products.” [emphasis added]57. The US Attorney that obtained the criminal subpoenas was found dead in her home the day beforethe third senate subcommittee hearing in healthcare group purchasing organizations that took placeSeptember 14, 2004.1008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8715

58. The claim that hospital group purchasing organizations save hospitals money or have ever savedmoney has been shown to be without a rational basis. See Defining and Measuring Product-Based CostSavings in the Health Care Supply Chain by Lynn James Everard, (February, 2005): "An overwhelming 94percent of respondents believe that their GPO saves them money," Everard reports. "Yet only 29% saidthey actually knew how much money their GPO had saved them – and 80 percent of those said they knewhow much, because their GPO told them."a. The Harm To Buyers In The Marketi. The Harm to Hospitals, Nursing Homes and Home Healthcare Services:59. The combinations and or conspiracies of the defendants’ Group Purchasing Enterprise producedadverse, anti-competitive effects by preventing the efficiency of competitive electronic commerce in therelevant United States hospital supply market resulting in excess charges from artificially inflated costsaveraging 20% to 40% and in some goods excess charges of 50%, reducing the bottom line profit and lossstatements of U.S. hospitals by an average of 5% and forcing over 2000 North American hospitals tooperate at an unsustainable loss, endangering the nation’s access to healthcare, increasing the cost of careand health insurance and forcing the closing and merging of treatment centers, resulting in needlesssuffering and death.The Monopoly’s artificial inflation of Hospital Supply Costs (Excluding Prescription Drugs):60. The defendants in combinations and or conspiracies with hospital suppliers, distributors andmanufacturers caused hospitals to be overcharged $30,000,000,000.00 (thirty billion dollars) in 2002.61. The defendants in combinations and or conspiracies with hospital suppliers, distributors andmanufacturers caused hospitals to be overcharged $32,200,000,000.00 (thirty two billion, two hundredmillion dollars) in 2003.62. The defendants in combinations and or conspiracies with hospital suppliers, distributors andmanufacturers caused hospitals to be overcharged $34,500,000,000.00 (thirty four billion, five hundredmillion dollars) in 2004.The Monopoly’s artificial inflation of Nursing Home and Home Health Costs (Excluding PrescriptionDrugs):1108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8716

63. The defendants in combinations and or conspiracies with hospital suppliers, distributors andmanufacturers caused nursing home and home health services to be overcharged $8,200,000,000.00 (eightbillion, two hundred million dollars) in 2002.64. The defendants in combinations and or conspiracies with hospital suppliers, distributors andmanufacturers caused nursing home and home health services to be overcharged $9,400,000,000.00 (ninebillion, four hundred million dollars) in 2003.65. The defendants in combinations and or conspiracies with hospital suppliers, distributors andmanufacturers caused nursing home and home health services to be overcharged $10,000,000,000.00 (tenbillion dollars) in 2004.The Monopoly’s artificial inflation of Prescription Drugs:66. The defendants in combinations and or conspiracies with hospital suppliers, distributors andmanufacturers caused hospital supply consumers to be overcharged $40,000,000,000.00 (forty billiondollars) in 2002.67. The defendants in combinations or conspiracies with hospital suppliers, distributors andmanufacturers caused hospital supply consumers to be overcharged $45,000,000,000.00 (forty five billiondollars) in 2003.68. The defendants in combinations or conspiracies with hospital suppliers, distributors andmanufacturers caused hospital supply consumers to be overcharged $50,100,000,000.00 (fifty billion, onehundred million dollars) in 2004.ii.The Harm To Healthcare Services Consumers69. A study released February 2, 2005 stated about half of bankruptcies filed in 2001 were because ofmedical bills, according to a study published Wednesday on the Health Affairs Web site, the ChicagoTribune reports (Rubin, Chicago Tribune, 2/2). For the study, researchers from Harvard Medical Schooland Harvard Law School surveyed 1,771 U.S. residents who filed for bankruptcy in 2001 and interviewed931 of them (Abelson, New York Times, 2/2).70. People interviewed had cases involving injury or illness, unpaid medical bills of more than $1,000in the two years prior to filing for bankruptcy, loss of two weeks of work because of illness or injury or1208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8717

mortgaging of a home to pay medical bills, the Los Angeles Times reports (Dickerson, Los Angeles Times,2/2).71. According to the study, 46.2% of people reporting bankruptcy in 2001 cited illness and medicalbills as the cause the rate rose to 54.5% when births, deaths and gambling addictions were considered asfactors, the AP/San Jose Mercury News reports (Jewell, AP/San Jose Mercury News, 2/2). The number ofbankruptcies filed in the United States tripled between 1980 and 2001, to nearly 1.5 million couples andindividuals. The number of medical-related bankruptcies increased twenty-threefold during that period, thestudy says (Los Angeles Times, 2/2).iii.Loss of Healthcare Insurance72. Approximately 81.8 million Americans -- one out of three people under 65 years of age -- wereuninsured at some point of time during 2002-2003, according to a report released June 16, 2004 by theHealth Consumer Organization Families USA.73. The report, based mainly on Census Bureau data, showed that most of these uninsured individualslacked coverage for lengthy periods of time: Almost two-thirds (65.3 percent) were uninsured for sixmonths or more; and over half (50.6 percent) were uninsured for at least nine months.74. Four out of five of the uninsured were in working families, according to the report. Of thoseworking families, the report found that significant portions of the middle class were uninsured. Forexample, among people with incomes between 300 and 400 percent of the federal poverty level (between$55,980 and $74,640 in annual income for a family of four in 2003), more than one out of four wereuninsured over the past two years.75. Governor Sebelius indicated the stakes involved in being uninsured: "Tens of millions ofAmericans -- and hundreds of thousands of Kansans -- are regularly risking their health and financialsecurity because the cost of health insurance is too often out of their reach," she said.iv.The Injury To Healthcare Insurance PlansMedicare76. In 2002, the defendants in combination and or conspiracies with hospital suppliers, distributorsand manufacturers caused Medicare to be overcharged for hospital care $13,920,000,000.00 (thirteenbillion, nine hundred twenty million dollars), caused Medicare to be overcharged for nursing home and1308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8718

home health care $3,845,000,000.00 (three billion, eight hundred forty five million dollars) and causedMedicare to be overcharged for prescription drugs $5,663,000,000.00 (five billion, six hundred sixty threemillion dollars).77. In 2003, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused Medicare to be overcharged for hospital care $14,832,000,000.00 (fourteenbillion, eight hundred thirty two million dollars), caused Medicare to be overcharged for nursing home andhome health care $4,052,000,000.00 (four billion fifty two million) and caused Medicare to be overchargedfor prescription drugs $6,272,000,000.00 (six billion, two hundred seventy two million dollars).78. In 2004, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused Medicare to be overcharged for hospital care $15,864,000,000.00 (fifteen billion,eight hundred sixty four million dollars), caused Medicare to be overcharged for nursing home and homehealth care $4,316,000,000.00 (four billion, three hundred sixteen million dollars) and caused Medicaid tobe overcharged for prescription drugs $7,000,000,000.00 (seven billion dollars).Private Insurance79. In 2002, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused Private Insurers to be overcharged for hospital care $12,710,000,000.00 (twelvebillion seven hundred ten million dollars), caused Private Insurers to be overcharged for nursing home andhome health care $3,488,000,000.00 (three billion, four hundred eighty eight million dollars) and causedPrivate Insurers to be overcharged for prescription drugs $30,742,000,000.00 (thirty billion seven hundredforty two million dollars).80. In 2003, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused private insurers to be overcharged for hospital care $13,542,000,000.00 (thirteenbillion, five hundred forty two million dollars), caused private insurers to be overcharged for nursing homeand home health care $3,675,000,000.00 (three billion, six hundred seventy five million dollars) and causedprivate insurers to be overcharged for prescription drugs $34,048,000,000.00 (thirty four billion, forty eightmillion dollars)81. In 2004, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused private insurers to be overcharged for hospital care $13,539,000,000.00 (thirteen1408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8719

illion five hundred thirty nine million dollars), caused private insurers to be overcharged for nursing homeand home health care $3,914,000,000.00 (three billion, nine hundred fourteen million dollars) and causedprivate insurers to be overcharged for prescription drugs $38,095,000,000.00 (thirty eight billion ninety fivemillion dollars).Medicaid82. In 2002, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused Medicaid to be overcharged for hospital care $3,631,000,000.00 (three billion,six hundred thirty one million dollars), caused Medicaid to be overcharged for nursing home and homehealth care $1,699,000,000.00 (one billion, six hundred ninety nine million dollars) and caused Medicaid tobe overcharged for prescription drugs $4,045,000,000.00 (four billion forty five million dollars).83. In 2003, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused private Medicaid to be overcharged for hospital care $3,869,000,000.00 (threebillion, eight hundred sixty nine million dollars), caused Medicaid to be overcharged for nursing home andhome health care $1,790,000,000.00 (one billion, seven hundred ninety million dollars) and causedMedicaid to be overcharged for prescription drugs $4,480,000,000.00 (four billion, four hundred eightymillion dollars).84. In 2004, the defendants in combinations and or conspiracies with hospital suppliers, distributorsand manufacturers caused Medicaid to be overcharged for hospital care $4,138,000,000.00 (four billion,one hundred thirty eight million dollars), caused Medicaid to be overcharged for nursing home and homehealth care $1,907,000,000.00 (one billion, nine hundred seven million dollars) and caused Medicaid to beovercharged for prescription drugs $5,000,000,000.00 (five billion dollars).85. On January 26, 2005, Governor Blunt of Missouri was forced to propose removing thousands ofpeople from Medicaid insurance. The state-federal program provides health care for the disabled, the blind,some elderly people and low-income families with children. Also cut would be adults who are consideredmedically unemployable but haven't yet qualified as disabled. Medically unemployable persons often relyon the special coverage while they await federal decisions on whether they are disabled. The governorwould eliminate podiatry, dental care and rehabilitation services for adults. Also, some services would besubject to small co-payments and deductibles. In all, the state’s need to make Medicaid cuts would save1508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8720

$626 million in state and federal funds. But even with the cuts, Blunt said, the $5.3 billion program wouldconsume 26 percent of the total state budget.v. The Loss Of Life From Decreased Access To Healthcare86. The rise in healthcare costs of which hospital supply inflation is a significant contributing factorled to a reported 18,000 deaths a year in the USA resulting from 40 million Americans being uninsured in2001. See “Study Blames 18,000 deaths in USA on Lack of Insurance”, USA Today, May 23, 2002.87. In 2002, the number of uninsured increased to 43.6 million Americans and without decreases inthe mortality rates of untreated illnesses or observed improvements in public health systems, the number ofdeaths resulting from the lack of affordable health insurance was 19,962.88. The following year, 2003, the number of uninsured Americans increased to 45 million, resulting inan expected 20,603 deaths resulting from the lack of affordable health insurance.89. During the period of time in which Medical Supply has been foreclosed from competing in themarket for healthcare supplies as a result of the actions of the defendants, at least 41, 206 Americans havedied as a result of the increasing cost of hospitalization and medical care of which artificially inflatedhospital supply costs are a significant contributing factor.vi.The Harm to Medical Supply90. The actions taken by the Defendants have resulted in dramatic losses to Medical Supply itsstakeholders, associates, suppliers and customers. Under traditional Clayton Antitrust Act damagescalculations, the Defendants have caused substantial short and long-term losses that are not recoverable dueto Medical Supply’s injury and delay in obtaining banking services. Medical Supply has directly suffered$2,901,600 in damages the 1st year, $27,366,576 in damages the 2nd year, $74,798,940 in damages the 3rdyear plus forward financial damages in the fourth year of $140,443,9800 and $223,488,060 in the fifth yearas a combined total of $468,099,156 and trebled are $1,404,297,468.91. As a direct result of Medical Supply’s injury, its associates also are damaged due to the actions ofthe Defendants. Losses include an average of 40-60 hours per week participation in Medical Supply’sevaluation and hiring practices; in addition to due diligence and market evaluation activities. Losses ofrevenue for associates are $93,085,831 trebled are $279,257,493.1608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8721

92. As a direct result of Medical Supply’s injury, its consultants and suppliers have been harmed byMedical Supply’s inability to fulfill success agreements and service contracts due to the actions of theDefendants. Medical Supply consultants and suppliers have performed several thousand hours in servicesthat are contractually due and Medical Supply is unable to perform as a result of the actions of theDefendants. These consultants and suppliers depend on Medical Supply to meet its obligations and theactions of the Defendants are preventing Medical Supply from doing so.93. The direct result of Medical Supply injury and inability to perform its services to customers arethe lost savings and additional revenue Medical Supply generates for its customers through its services.Losses to Medical Supply customers are directly due to the actions of the Defendants and are 20% of thetotal supplies spend health systems currently pay out annually or $4,425,655,560 trebled are$13,276,966,680.94. Medical Supply’s customers are healthcare systems consisting of hospital groups. The actions ofthe Defendants to preserve an anticompetitive marketplace in healthcare supplies keep in jeopardy over2000 of the nation’s 5,700 hospitals. The resulting closings of some or most of these hospitals due tounsustainable supply costs will significantly harm public access to healthcare, increasing loss of life andunnecessary injury.b. The Need For Private Antitrust Enforcement95. At the close of the US Senate Judiciary Committee's Antitrust Subcommittee’s hearing entitled“Hospital Group Purchasing: How to Maintain Innovation and Cost Savings” on Tuesday, September 14,2004, the subcommittee's chair suggested that the 1.8 trillion dollar market's anti-competitive behaviormight be better corrected with private antitrust litigation than with new legislation.i. The Limited Resources Of The US Department Of Justice96. Two US Attorneys that appeared connected to the criminal investigation of Novation, LLChave died and three more in the Ft Worth office of the US Department of Justice with antitrust expertisehave been dismissed.97. The Ft. Worth US Attorney’s office has been at the epicenter of where civil antitrust actions bymanufacturers foreclosed from group purchasing organization distribution systems have been litigated1708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8722

and is believed to have been the center of effort behind the government’s criminal investigation ofhospital supply relationships.98. On October 18, 2004 Leonard Senerote, A former U.S. Army Special Forces officer who wasan expert in complex securities cases and an antitrust trial attorney, Michael Uhl and Michael Snipes,veteran prosecutors with expertise in white collar fraud and corruption were announced as separatingfrom the Ft. Worth Office of the US Attorney.ii.The Deaths of The FCA Attorneys99. The Dallas Morning News described the office as already reeling from the unexpected deathsof criminal chief Shannon Ross [the source of the widespread criminal inquiry into medical suppliesand False Claims Act violations against Medicare] and civil and False Claims Act litigator ThelmaLouise Quince Colbert. Ms. Ross, who had been feeling ill, was found September in her home. Ms.Colbert accidentally drowned a month earlier in July.100. Medical Supply does not believe there is currently an active criminal investigation of thesupplier side of hospital Medicare false claims.4. BACKGROUNDa. Procedural HistoryMedical Supply filed its first action for injunctive and declaratory relief in the U.S. District Court for theDistrict of Kansas, Medical Supply Chain, Inc. v. US Bancorp, NA et al KS. Dist. Case No.: 02-2539101. Medical Supply sought relief based on a complaint for an urgent Temporary Restraining Orderfiled 10/22/02 and amended 11/02/02 because the defendants were repudiating a contract (misusing theUSA PATRIOT Act shown to be a false pretext) on 10/15/02 to provide escrow accounts required for thedeposit of $350,000.00 raised from manufacturer rep candidates by Medical Supply. The denial of the TROcaused all funds to be lost on 12/1/02, including the company’s last resources used to recruit the candidatesand all funds invested in preparation of training.102. Medical Supply’s cause was controversial because it was an action to seek an injunction againstbreaking a contract to provide escrow accounts in furtherance of a boycott by US Bancorp and PiperJaffray’s coconspirator identified in the complaint as Novation, a healthcare group purchasing organization(“GPO”) competitor of Medical Supply’s in the hospital supply market. Also identified in the complaint1808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8723

was Novation’s captive e-commerce marketplace Neoforma, Inc. competing with Medical Supply on theweb.103. Medical Supply sought an interlocutory appeal on the denial of injunctive relief without amemorandum and order or findings of law and fact Medical Supply Chain, Inc. v. US Bancorp, NA et al10th Cir. Case No.: 02-3443. Medical Supply also sought interim pre-hearing relief in the Tenth Circuit.The pre-hearing relief was denied and the interlocutory appeal was dismissed as moot.104. Medical Supply appealed the dismissal of its injunctive and declaratory relief action MedicalSupply Chain, Inc. v. US Bancorp, NA et al 10th Cir. Case No.: 03-3342. The Tenth Circuit upheld the trialcourt’s dismissal without findings of law or fact and made a show cause order why Medical Supply and itscounsel should not be sanctioned for a frivolous appeal.105. Medical Supply answered the show cause order asserting the trial court had applied the incorrectlegal standard and had misstated the USA PATRIOT Act. The Tenth Circuit found that Medical Supply hadpled a conspiracy that included a separate legal entity, contradicting the trial court’s ruling and the TenthCircuit panel found that Medical Supply was correct in the existence of private rights of action under theUSA PATRIOT Act. However, instead of correcting its ruling and ordering that Medical Supply wasentitled to injunctive and declaratory relief, the Tenth Circuit panel ordered that Medical Supply’s counselreceive its most serious sanction for a frivolous appeal.106. Medical Supply sought en banc rehearing of its appeal, giving notice that the panel’s ruling had nopreclusive effect for the parties regarding the future action for monetary damages in the Western District ofMissouri. Neither the court nor opposing counsel contradicted Medical Supply’s ripeness analysis. Thecourt declined to rehear the case en banc and Medical Supply is now seeking Supreme Court review.b. The Legal Basis For Now Ripe Monetary Damages Submitted to The Tenth Circuit107. Now that Medical Supply has experienced all the injury it sought to avoid, it is required to bringits claims for monetary damages to a federal district court: “...if future damages are unascertainable, a causeof action for such damages does not accrue until they occur. Zenith, 401 U.S. at 339, 91 S. Ct. at 806.” KawValley Elec. Co-op. Co., Inc. v. Kansas Elec. Power Co-op., Inc., 872 F.2d 931 at FN4 (C.A.10 (Kan.),1989). See also Barnosky Oils Inc., v. Union Oil Co., 665 F.2d 74, 82 (6th Cir. 1981). US Bank was stillattempting to perform the financing part of the contract after Medical Supply filed for its injunctive relief.1908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8724

“If the initial refusal is not final, each time the victim seeks to deal with the violator and is rejected, a newcause of action accrues”. See Pace Indus., 813 F.2d at 237-39; Midwestern Waffles, Inc. v. Waffle House,Inc., 734 F.2d 705, 714-15 (11th Cir.1984).” Kaw Valley Elec. Co-op. Co., Inc. v. Kansas Elec. Power Coop.,Inc., 872 F.2d 931 at 933-4 (C.A.10 (Kan.), 1989).108. Medical Supply also now has evidence the malicious suspicious activity report as a sham petitionwas filed to further the agreement to suppress competition. See, e.g., Al George, Inc. v. Envirotech Corp.,939 F.2d 1271, 1274-75 (5th Cir. 1991); Korody-Colyer Corp. v. General Motors Corp; In re RelafenAntitrust Litigation at pg. 6 (Mass., 2003). The amended pleading for now ripe monetary damages inKansas District Court or a new-filed action in some other federal district court would suffer no issuepreclusion on Sherman 1 or 2 claims. Oltremari v. Kansas Social & Rehabilitative Service, 871 F. Supp.1331 (Kan., 1994). The failure of either the trial court or the appellate panel to address the meritoriousappeal that the defendant’s use of the USA PATRIOT Act was a sham petition is a Sherman 2 A violationnot excepted by Eastern RR v. Noerr., 365 U.S. 127, 141, 81 S.Ct. 523, 531, 5 L.Ed.2d 464 or maliciouslyunder the USA PATRIOT Act private right of action completes the lack of preclusive effect of the appealcourt decision.5. THE HOSPITAL GROUP PURCHASING ENTERPRISE TO ARTIFICIALLYINFLATE PRICES109. During October 22 thru October 24 in 1979, a little known hospital logistics industry organizationcalled the Group Purchasing Group held a conference in Vacation Village, San Diego California. At thatevent a seven page document was circulated among representatives of cooperative hospital purchasinggroups which originated as buying agents for hospitals that became the blueprint for nationwide fraudulentprice collusion in hospital supplies.110. The recipients of the document were officials in Sun Health, American Medical Systems, HSCA,Cardinal and other precursors to today’s two dominant hospital group purchasing organizations (GPO’s),Novation and Premier. Eventually the document recipients would become the key officials in the latergroup purchasing organizations Amerinet, Novation and Premier and in oligarch hospital supplymanufacturers including Johnson & Johnson and Baxter.111. The document itself was presented as the perfect “sales story.” Ways to communicate to hospitalsthat group purchasing cooperatives were creating value for their members. However, the document was2008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8725

instead employed as a blueprint for fraud. The membership “value” for hospitals being communicated wasa deception about the cost of commodities sold through the cooperative.112. The fraudulent scheme described a method for creating a false baseline for commodity pricingfrom an average of the purchase price of units of goods by kind taken from a broad sample of the goods aspurchased in many hospitals in a variety of locations and in varying quantities. The data would then be usedto create a manipulated average well above an easily obtainable volume discount.113. The victim prospective hospital would also be subjected to the frightening prospects of priceincreases and shortages that would certainly befall hospitals that did not join the security of the purchasingcooperative.114. The cooperative would then negotiate a “discounted” price below the false baseline and declarethe difference as the “savings” to the hospital. The cooperatives derived the “savings” from manipulatedbaseline costs of goods distributed and therefore had to disconnect the savings expectations of theirmember hospitals from an easily comparable commodity price. This “savings” was delivered to themember hospitals in the form of periodic, usually quarterly refunds, rebates and dividends.115. The secret document described the upward manipulation of their customers’ expected costs asprice “inflation.” The scheme included steadily increasing the baselines used to assist members andprospective members to compare the cooperative’s prices. This deception was described as “inflation basedsavings.”116. The cooperatives exploited the foreseeable effect of this delayed repayment to hospitals. Hospitalsbilled third party payers including the government’s healthcare insurance funds Medicare, Medicaid andChampus the cooperative contract price or even the artificially inflated baseline price instead of the actualcost to the hospital once the delayed rebate was subtracted. The scheme depended upon the hospitalscertifying to Medicare that the bills being presented for patient care conformed to the government’saccounting safeguards, including the Medicare Antikickback act.117. To co-opt administrative officials in hospitals, hospital groups and independent distributionnetworks, the cooperatives and later the dominant GPO’s would encourage and facilitate maintaining twosets of books by issuing two different reports. One for the chief executive of the hospital or hospital group2108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8726

that fully detailed the various refunds, rebates, dividends, cash and cash equivalent payments and anotherfor the materials director showing the units purchased at the cooperative price.118. The attendees that employed the perfect sales story were able to insert their cooperative betweenthe hospital and its suppliers and extract a membership fee. The precursor group purchasing organizationseffectively sold “rebates” rather than price efficiency to their members. The business model was profitablefor the cooperatives but had the potential of becoming extremely profitable if competition could beconsolidated and the increased control of hospital supply distribution could be used to extract fees fromproduct manufacturers.119. The firm of Robert Betz Associates was utilized during 1985-86 to obtain a regulatory safe harborfrom the Federal Trade Commission and the Department of Justice from the Medicare Antikickback statuteto give the appearance of legitimacy to the Vacation Village conference attendees practice of payingperiodic refunds, rebates and dividends to member hospitals. Robert Betz was successful and as a directresult of his efforts, Department of Justice False Claims Act prosecutions have never since targeted theGPOs or their supplier cartel members.120. Once some kickbacks in the form of administrative fees to cooperatives were officially allowed,the original Vacation Village conference attendees were able to use their illegally inflated revenue streamto acquire their law abiding hospital supply competitors and a frenzy of mergers and acquisitions resultedin two dominant group purchasing organizations, Premier and Novation, LLC that control 70% of thenational market in hospital supplies.121. Premier and Novation, LLC are required under the Antikickback safe harbor to discloseadministrative fees in excess of 3% that are added to the cost of goods sold through their distributionnetworks. Premier and Novation, LLC have however expanded the fees charged member hospitals in theprice of goods sold to include 12 to 15 separate “non administrative fees.” The names of the fees chargedinclude “marketing,” “conversion” “stocking” “tracing” and other legitimate sounding supplemental costsand some overtly illegitimate fees including “channel fees” and “patronage fees”, however all such chargesare outside of the safe harbor.122. Premier and Novation, LLC use their market power to extract fees from manufacturers to havetheir products distributed through the monopolized distribution networks. The dominant GPO’s have2208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8727

expanded the Vacation Village “inflation savings” scheme to include managing suppliers to the grouppurchasing organization with planned price increases. Premier and Novation, LLC choose market leaders, amanufacturer with the largest market share to be the sole providers of each line of products used by theirthousands of member hospitals.123. The market leader is encouraged to set an increased list price for each good distributed by theGPO and to plan periodic increases in the list price. Premier and Novation, LLC then give the marketleader a long term exclusive contract designed to eliminate competition for the market of goods used by themember hospitals. The market leader is secretly charged sizable fees by Premier and Novation, LLC forhaving its products distributed through the group purchasing organization. The market leader’s contractprice to the member hospitals has been increased to include this fee to Premier and Novation, LLC and bydesign, the contract price always compares favorably to the manufacturer’s list price to further the“savings” deception on GPO members.124. The “inflation savings” scheme is perpetuated to this day by annual inflation forecasts created anddistributed by Premier and Novation, LLC. The documents appear to be legitimate economic forecasts toaid hospital-purchasing directors and include macroeconomic analysis of economic conditions that have thepotential to effect product prices. For those uninitiated into the secrets of the fraud, the long-term contractswith the hospital’s GPO either Premier or Novation, LLC appear to have protected the hospital against thefull effect of projected increases in the manufacturer’s list prices.125. The fraud however is easily verified. The economic forecasts of Novation LLC and Premier speakfor themselves. The lists of products and services and the projected price changes invariably show priceincreases exceeding the annual inflation index rate for the contract protected hospital supply market leadermanufacturers and below annual inflation index price changes for non-hospital supply specialty items, evendeclining prices in some markets with competition. To offset these glaringly obvious comparisons,Novation LLC and Premier make much use (misuse) of macro inflationary data to project increases incommodities they do not control.126. As an example, Novation LLC’s 2005 projections utilize temporary surges in products like farmproduce from fuel cost increases in 2004 to creatively portray large increases in products not under contractproviding cover for the fraudulently increased prices of the GPO’s participating suppliers.2308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8728

127. Novation LLC and Premier also utilize a broad range of antitrust prohibited devices to coerce theirmember hospitals into continuing to be subjected to the artificially inflated healthcare supply costs.Hospitals are deceived into upgrading their dues based memberships into “shareholder” status and a higherrate of refunds, rebates, dividends, cash and cash equivalent payments.128. Because of this illegal product-tying scheme, hospitals are forced to buy products they would nothave otherwise purchased, fearing they will lose their vested interests in what are in actuality fictitious ordeceptive rebates and discounts.129. The hospitals are not given meaningful data regarding the perceived “savings” and are preventedfrom realizing they are paying their own refunds out of inflated costs at either membership and share holderremuneration rates.130. Hospitals and hospital groups that achieve shareholder status are deceived into thinking that theywill lose an “investment” in the achieved shareholder status if they withdraw from the GPO. However,there is no retainable value in the shares of the GPO. Neither Novation LLC or Premier is publicly held andthe “shares” are a Sherman Act prohibited tying device to prevent competition.131. Another device to prevent competition in the hospital supply markets for Novation LLC andPremier members is the allocation of markets among participating suppliers and the GPO’s themselves. Aspart of their membership agreements Novation LLC and Premier require hospitals to obtain typically 6% ofa product from a supplier that is not the GPO’s contracted market leader. Other contract requirementsinclude participating in a smaller GPO to a limited share of the hospital’s purchases so that no hospital orhospital group is supplied exclusively by Premier or Novation, LLC to deceive the hospitals into thinkingthey are not monopolized and to provide a much lower volume inferior choice.132. The contracts utilized by Novation LLC and Premier reward hospitals and hospital groups forincreasing the market shares of selected product lines sold through the GPO’s. Hospital rebate, refund,dividend cash and cash substitute kickbacks are increased depending on how much use of the targetedproducts are increased.133. Finally, Novation LLC and Premier employ contracts with harsh terms including severe disciplinefor hospitals and hospital groups that obtain products or services from competitive markets outside of the2408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8729

GPO. The sanctions can include embargo of supplies, stiff financial penalties and probationary periods ofadverse financial terms as penalties for participating in a competitive market.a. The defendants’ hospital group purchasing enterprise134. Robert J. Baker, UHC, Curt Nonomaque and VHA distribute hospital supplies by corruptingadministrators in health systems (hospitals, hospital groups and independent distribution networks) thatsupport the provision of services or provide services to Medicare, Medicaid and Champus funded patients.UHC and VHA employ marketing schemes that provide remunerations to healthcare systems undercontracts in violation of the federal Anti-Kickback Act, 42 U.S.C. § 1320a-7b.135. Robert J. Baker, UHC, Curt Nonomaque and VHA encourage health systems to violate § 1320a-7b(b)(1) by receiving unlawful remunerations which are labeled as “rebates” and are paid periodicallybased on the products used by the health system and its loyalty to the terms of the anticompetitive exclusiveagreement with the group purchasing organization, UHC, VHA or Premier which control 70% of thehospital supply market.136. Robert J. Baker, UHC, Curt Nonomaque and VHA encourage their member hospitals to believethe group purchasing organizations are saving money by communicating the “value” of the rebates they arereceiving as contrasted against the constantly increasing prices of hospital supplies allowed into UHC,VHA’s distribution system.137. The corrupting subtext of Robert J. Baker, UHC, Curt Nonomaque and VHA’s marketing schemeis knowingly encouraging that third party payers, chiefly Medicare, Medicaid and Champus are billed forthe artificially inflated list price, not the actual cost to the health system once the cash and cash substituteremunerations are factored in.138. Robert J. Baker, UHC, Curt Nonomaque and VHA violate § 1320a-7b(b)(2) because theyknowingly and willfully pay and offer to pay the unlawful remunerations. To provide cover for thespiraling prices in the product lists of chosen hospital suppliers who are protected from competition inUHC and VHA’s captive market, Robert J. Baker, UHC, Curt Nonomaque and VHA generate flawedstudies that extol the discount in the form of rebates as a savings over the monopoly “list” price forhealthcare supplies.2508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8730

139. The constant threat to the corrupt marketing scheme employed by UHC and VHA is access to realdata from which to evaluate the actual costs imposed upon member hospitals by the artificially inflateddistribution system, which would be destabilized by independent actions of participating hospitals andsuppliers.140. Robert J. Baker, UHC, Curt Nonomaque and VHA have protected against this destabilizing byforcing hospitals and suppliers into long-term anticompetitive exclusive dealing contracts that harshlypenalize every violation. Out of a misguided fear of antitrust liability, the contracts typically assign marketshare limiting each health system to 95% of its purchasing through the dominant group purchasingorganization and require a token share of products to be purchased through a “competing” grouppurchasing organization.141. Robert J. Baker, UHC, Curt Nonomaque and VHA have also commanded loyalty among memberhealth systems by making cash and cash substitute payments to health system board members and chiefadministrators in return for participation in the cost inflation scheme.142. Many forms of the Defendants’ cash and cash substitute payments to hospital administrators areconcealed as “consulting contracts” and are not reported to Medicare, Medicaid or Champus or subtractedfrom the costs of hospital supplies transferred to third party payers.143. Robert J. Baker, UHC, Curt Nonomaque, VHA and Novation LLC have made use of payments toa third party in which hospital CEO’s are stakeholders in order to conceal the commercial bribe nature ofthe payments. An organization called the Healthcare Research and Development Institute (www.hrdi.com)has existed since the late 1990s. HRDI has approximately 35 members who are hospital CEOs (many areheavily involved in supporting GPOs). The Institute's clients are large manufacturers, publishers, andlarge consulting firms. Each client pays the Institute and the members of the Institute, who are also itsshareholders, are paid out of the profits of the organization. For hospital CEOs to personally receivepayments from companies that they do business with is a serious conflict of interest and a failure to fulfilltheir fiduciary responsibility.144. UHC, VHA and Premier insist that the Antikickback Act provides a safe harbor for marketingprograms offering discounts to health care providers and that its program was designed to take advantage ofthis safe harbor. See 42 U.S.C. § 1320a7b(b)(3)(A); 42 C.F.R. § 1001.952(h).2608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8731

145. The rewards Robert J. Baker, UHC, Curt Nonomaque, VHA have given to health systems, hospitalboard members and purchasing managers have been paid in “cash or cash equivalents” and sometimesequity (stock shares) extorted from healthcare technology companies permitted to sell through thedistribution system. This appears to be inconsistent with the group purchasing systems’ safe harbor theory.See 42 C.F.R. § 1001.952(h)(5)(i) (“The term discount does not include – Cash payment or cashequivalents (except that rebates as defined in [42 C.F.R. § 1001.952(h)(4)] may be in the form of acheck).”).146. Robert J. Baker, UHC, Curt Nonomaque and VHA also have protected their monopoly markets byforming a joint venture with each other, acquiring an electronic marketplace that could be co-opted as afalse storefront for their illegal marketing scheme and finally by joining a joint venture created by thedominant suppliers with their competitor group purchasing organization, Premier.147. UHC and VHA knowingly created an antitrust prohibited joint venture limited liability companycalled Novation, LLC for the purpose of unlawfully setting prices for hospital supplies sold through theformerly competing group purchasing organizations UHC and VHA’s 2000 member hospitals.148. Novation, LLC limited the suppliers whose products could have access to purchasing managers inthe 2000 member hospitals. Novation, LLC used its power to determine which products were sold to themember hospitals not to command the best supplier pricing or fulfillment, but instead to guarantee thatapproved suppliers would participate in planned upward manipulation of list prices so that Robert J. Baker,UHC, Curt Nonomaque, VHA and Novation LLC could sell “discounts” or “rebates” to their memberhospitals.149. Robert J. Baker, UHC, Curt Nonomaque and VHA operated Novation LLC to control transactionsbetween suppliers and member hospitals utilizing facsimile telephony (fax) and Electronic DataInterchange (EDI) ordering and fulfillment to keep track of hospital purchasing data and police supplierfulfillment and product pricing to ensure healthcare product prices were being continually manipulatedupwards (artificially inflated).150. When web based business to business electronic marketplaces showed the potential todramatically increase hospital supply purchasing efficiency and lower hospital supply prices by facilitatingdirect communications between hospital groups and many competing product suppliers, Robert J. Baker,2708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8732

UHC, Curt Nonomaque, VHA and Novation LLC actively prevented Neoforma.com, an electronicmarketplace that enabled hospital supplies to be purchased on the web from having access UHC andVHA’s member hospital market and from carrying the products of Novation’s suppliers.151. Robert J. Baker, UHC, Curt Nonomaque, VHA and Novation LLC’s power to exclude entrantsfrom their market with long term anticompetitive contracts and a centralizing price controlling jointventure, allowed Neoforma.com to be taken over in a scheme to utilize the new web based electronicmarketplace as a mere “storefront” for the existing inefficient bricks and mortar group purchasingorganization Novation LLC and therefore secure UHC and VHA’s price inflation scheme.152. US Bancorp, US Bank, Andrew Cesere, Jerry Grundhoffer, Piper Jaffray And Andrew S. Duffparticipated in a syndicate to make a market in an initial offering of publicly traded shares for Neoforma,LLC and to manipulate the stock prices in an illicit “laddering” scheme of prearranged market purchases todeceive stock investors into buying the shares at rapidly increasing share prices. US Bancorp, US Bank,Andrew Cesere, Jerry Grundhoffer, Piper Jaffray and Andrew S. Duff profited from this deceptivemanipulation by receiving blocks of shares in Neoforma.com which they inflated in a “pump and dumpscheme” through Piper Jaffray’s false recommendations to institutional fund managers and individualinvestors in reports about the bright future for the company without disclosing the brokerage’s conflict ofinterest and participation in the prior arranged scheme to keep Neoform.com from reaching its potential toincrease hospital supply efficiency. Instead, the Defendants planned to suppress Neoforma.com’stechnology to preserve Robert J. Baker, UHC, Curt Nonomaque, VHA and Novation LLC’s corruptinefficiencies. US Bancorp and Piper Jaffray were fined and paid $32.5 million fine to settle thesesecurities fraud charges brought by with the SEC, NASD, NYSE, NASAA, and the New York AttorneyGeneral for the fraudulent research.153. In March, 2000, Robert J. Baker, UHC, Curt Nonomaque, VHA, Novation LLC, Bob Zollars AndNeoforma into deceiving the board of directors of Eclipsys, a software application company with superiortechnology to Neoforma.com and a positive cash flow into merging with Neoforma.com based on a longterm contract to pay Neoforma.com a quarterly payment for providing an electronic marketplace on theweb that Robert J. Baker, UHC, Curt Nonomaque, VHA and Novation LLC could control.2808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8733

154. Neoforma, Inc.’s acquisition of Eclipsys and its stream of income was a threat to US Bancorp, USBank, Andrew Cesere, Jerry Grundhoffer, Piper Jaffray And Andrew S. Duff’s substantial interests in thehospital supply and hospital supply in e-commerce markets. With Eclipsys, Robert Zollar had the potentialto compete with GPO’s and bypass US Bancorp and Piper Jaffray’s ability to extort equity from newmarket entries trying to supply hospitals.155. A negative analyst report on the merger by Piper Jaffray was used to control Robert Zollars andNeoforma, Inc. Investors did not understand that Novation LLC controlled what companies had access tothousands of hospitals and that Eclipsys superior technology was not as valuable to its directors as theability to gain access to the monopolized hospital supply market. Investors expressed dismay concerningthe Merger Agreement as follows:“Investors may be unsettled by combining Eclipsys’ relatively high-margin software and servicesbusiness with Neoforma’s extremely low-margin online [business-to-business] exchange.Furthermore, ECLP shareholders are frustrated about the ownership split between [Neoforma] and[Eclipsys]. Neoforma and Eclipsys are getting 37% and 28% of the combined company,respectively.”156. Similarly, a March 30,2000 report issued by analyst Caren Taylor, of E-Offering entitled“Neoforma to Acquire Eclipsys and Healthvision - - What’s Wrong With This Picture?” stated:“As we take a step back and look at the big picture, we think there is something fundamentallywrong with this deal. We understand that Neoforma has had a difficult time accessing the buyermarket, and we had heard recently that the company might miss their earnings target this quarter. Inaddition, we are somewhat dismayed by the behavior of Eclipsys - - first its initiation of a takeoverbid of Shared Medical Systems Corp., which was dropped as of today, and now this suddenagreement to be acquired by Neoforma.com. This has left us wondering about the underlying issueswithin the Eclipsys organization. We would certainly not want to be the owners of these twostocks.”157. The detriment to Eclipsys shareholders was also recognized in a March 30,2000 analyst reportissued by Pacific Growth Equities, in which Eclipsys was lowered to a “Neutral” rating from its previous“Buy” rating. In a paragraph entitled “Terms are disappointing for Eclipsys shareholders”, the report stated:“The terms of the deal call for Eclipsys to receive 1.34 shares of the new Company for each of its37.5 million shares (50.25 million shares), Novation to receive 69.3 million shares, Healthvision(excluding the amounts attributable to Eclipsys and the VHA) to receive 0.444 shares for each shareand Neoforma.com to control the rest for a total share count of 2 10 million shares. Because thesecompanies are all valued very differently - a classic old economy and new economy merger -attributing relative value is tricky. However, Neoforma.com, a leader among the emerging onlinemarketplaces, was essentially still in “show me” mode and had little revenue. On the other hand,Eclipsys was a profitable company with one of the strongest franchises at $250 million in revenuelast year...[t]hus we believe with less than 25% in the new company, the terms of the transaction aredisappointing for Eclipsys shareholders.”2908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8734

158. In addition, Eclipsys shareholders cannot rely on increased medical supply orders from theNovation agreement to fill in the gaps of the Merger Agreement. As explained in a March 30,2000 Reutersarticle, it is not clear how much revenue Neoforma can count on from the Novation arrangement. Thearticle added mistakenly that with respect to the Novation deal, “Novation really can’t prevent theirhospital customers from buying wherever they want to buy”159. Robert J. Baker, UHC, Curt Nonomaque, VHA and Novation LLC agreed to a plan whereEclipsys would instead partner with Neoforma, Inc. and preserve the Defendants’ corrupt inefficiencies inexchange for a long term contract with quarterly payments of member hospital funds through Novation,LLC.160. US Bancorp, US Bank, Andrew Cesere, Jerry Grundhoffer, Piper Jaffray And Andrew S. Duffdeceived purchasers of Neoforma.com’s stock into thinking the firm’s e-commerce technology wouldprovide efficiency in the delivery of hospital supplies while knowing that no measurable difference inefficiency exists in the software technology EDI already employed by Novation LLC and the e-commercehtml based software employed by Neoforma.com. US Bancorp, US Bank, Andrew Cesere, JerryGrundhoffer, Piper Jaffray and Andrew S. Duff knew the only advantage leading to efficiency e-commercesoftware had over EDI was in facilitating the competition that Novation LLC’s control of Neoforma.comwas designed to prevent.161. US Bancorp, US Bank, Andrew Cesere, Jerry Grundhoffer, Piper Jaffray And Andrew S. Duffalso benefited because 70% of their venture funds were invested in healthcare technology companies and inexchange for their participation in the UHC and VHA scheme to keep hospital supply costs inflated, PiperJaffray’s healthcare technology companies received long term exclusive and anticompetitive contracts withNovation, LLC. This allowed US Bancorp and Piper Jaffray to profit greatly from underwriting thehealthcare technology and supply chain management companies’ initial public offerings.6. The Origin of Technology That Made GPO’s Obsolete And Eliminated Two DistributionLevels Facilitating Automated Competitive Direct Purchasing In An Electronic Marketplace162. On July 17, 1993 Physicians Management Group was founded to supply doctor’s offices, clinicsand nursing homes with discounted healthcare supplies at costs rivaling the volume purchasing enjoyed byhospitals. The founders recruited Samuel Lipari, who would later found the plaintiff Medical Supply for hisexpertise in mass merchandising, grocery and automotive distribution.3008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8735

163. Samuel Lipari recognized that the volume pricing in even large group purchasing organizationsfailed to provide significant cost savings and Physicians Management Group was able to profit by splittingthe savings its customers realized over volume pricing.164. Samuel Lipari discovered that for every product line and from almost every vendor in the broadspectrum of hospital supplies from bedding, to pharmaceuticals, to instruments and even including foodand janitorial supplies, the price of goods sold through hospital group purchasing organizations and eventheir contract suppliers and manufacturer’s catalog price was substantially higher than the discounts hecould obtain. Samuel Lipari found it easy to beat the “volume discounts” on even very small quantitypurchases for widely dispersed customers with disproportionately high handling and transportation costs.165. In order to increase Physicians Management Group’s recognizable savings to aid its customers inevaluating value over products sourced from other vendors, Samuel Lipari innovated the use of separatefees for Physicians Management Group’s management, storage and delivery of healthcare supplies to allowcustomers to directly compare unit costs with other purchasing organizations. This innovation was a greataid to small doctor’s practices and rural nursing homes which were empowered to make purchasingdecisions on a direct comparison of value in cost per unit of product with the nation’s larger volumehospital supply organizations while having the logistics costs of managing contracts, fulfillment, storageand delivery separated out in observable fees that could be tracked and competitively evaluated. PhysiciansManagement Group’s logistics services could then be partially or completely substituted with morecompetitive local alternatives.166. The demand for Physicians Management Group’s business model as an alternative supplier grewfaster than the fledgling company with no access to operating capital could sustain. The first 25independent representatives who had self financed their representation, a practice common amongmanufacturer’s representatives in the automotive and mass merchandizing industries brought in fourmillion dollars in contracts within the first 90 days and Physicians Management Group began shippingproducts to their clients.167. Physicians Management Group’s hospital group purchasing organization (GPO) supplier wasHealth Services Corporation of America (HSCA). Despite being one of the largest GPOs at the time withthe most volume from which to leverage lowest prices HSCA’s contract prices for its member customers3108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8736

were not as good as those Physicians Management Group obtained on purchases outside of the GPO. Eventhough Physicians Management Group was only fulfilling the requirements of small volume doctor’soffices, clinics and nursing homes.168. Without access to operating capital to sustain the high demand and growth, PhysiciansManagement Group ceased operations and began returning all unshipped products to the appropriatemanufacturer. Physicians Management Group Inc. filed for financial relief on October 15, 1996 and thatrelief was granted and the file closed on April 09, 1997.169. On October 24, 1995 Samuel Lipari incorporated Medical Supply Management in the State ofMissouri, a healthcare supplier that used technology to bundle services to assist hospitals, nursing homes,surgery centers and physician offices purchase track and pay for supplies again innovating and adopting therole suppliers in the vastly more competitive mass merchandizing industry create value for their customersreducing administrative and product costs.170. The effect of bundling services to purchase track and pay for supplies, utilizing Samuel Lipari’sproprietary software was a revolutionary value adding innovation radically increasing efficiency andreducing costs that rendered group purchasing organizations obsolete. Group purchasing organizationsoperating without supply chain management software were physically unable to manually offer these valueadding services, even with their enormous administrative offices and staff. Hospitals, unlike retail storeswhere supplier management of purchasing, tracking and paying for supplies as a competition enhancingservice to customers originated, do not have the primary function of selling products. When suppliers startto purchase, track and pay for supplies as an included service for hospitals, hospital staffing can concentrateon the primary value creating function of providing healthcare services. The savings realized becameexponential.171. Group purchasing organizations and suppliers began a refusal to deal strategy to foreclose the newsupply chain technology from the market for hospital supplies. Although HSCA had indicated a willingnessto provide Medical Supply Management a membership in its GPO as they had done earlier for PhysiciansManagement Group, HSCA later breached the membership contract with Medical Supply Management,stating the GPO was getting too much pressure from several suppliers.3208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8737

172. Medical Supply Management replaced HSCA with MedEcon as its GPO, and as a member ofMedEcon, Medical Supply Management’s clients were entitled to contract pricing according to MedEcon’sManufacturer Agreements to supplement direct purchasing negotiated by Medical Supply Managementitself.173. As a supplier for health systems (hospital chains, hospitals, clinics and nursing homes) MedicalSupply Management was what the industry labels an “independent distribution network.” However, unlikeother suppliers in healthcare, Medical Supply Management did not make exclusive contracts with particularmanufacturers extracting profit from the rebate or kick back payment for exclusive access to a market.Medical Supply Management’s compensation was driven only by its performance in saving costs for itscustomers. Consequently, Samuel Lipari’s software was engineered as a “clearing house” resembling aninsurance claims processing center of the period where many active competitors utilize the center as aneutral utility. This was the first electronic marketplace in healthcare supplies and it was not based on theGPO model of extracting fees for anticompetitive advantage and monopolization. Later in 2001, thedefendant US Bancorp and Piper Jaffray did a study authored by their senior analyst Daren Marhula anddetermined the model would save twenty three billion dollars a year over the current inefficient distributionsystem.174. MedEcon like other GPO’s had not invested in efficiency creating technologies like MedicalSupply Management’s supply chain management software due to the lack of competition in the market forhospital supplies. However, MedEcon enlisted Medical Supply Management transaction accounting andreporting data to police their suppliers’ contract pricing compliance, giving birth to the current practice ofGPOs to use electronic marketplace software to enforce anticompetitive minimum price maintenance inSherman Act prohibited vertical price fixing between manufacturers, suppliers and vendors selling tohospitals through Neoforma, Inc. or GHX LLC’s electronic marketplace.175. Owen Healthcare, Inc., a wholly owned subsidiary of Cardinal Health, Inc., took a great interest inMedical Supply Management’s business model. On the pretense of building a relationship with MedicalSupply Management that would allow Samuel Lipari to sell Owen’s lines of pharmaceuticals as anindependent distribution network, Owen Healthcare obtained Medical Supply’s business plan andproprietary information developed as of 1995.3308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8738

176. Cardinal Health, Inc. utilized the information in the business plan describing the clearinghousemodel and Robert Zollars, a Cardinal employee left Cardinal and later joined Neoforma, Inc. that hadstarted up in 1996 to sell hospital supplies through the internet in an electronic marketplace.177. A July 29, 1996 letter to Dennis M. Egan of Health Services Corporation of America (HSCA)described Medical Supply Management’s use of the Web for customer ordering:“The Contract portfolio information MSM clients will receive from HSCA will be utilized asfollows:The contract portfolios will reside on MSM server and will include all product data (Vendor,Product ID, Description, Unit of Measure, etc.). The product information (excluding pricing, termsand conditions) will be accessible on the World Wide Web and only after a client locates productson the World Wide Web, will the client then negotiate EDI with MSM server and MSM serverprovide pricing. Pricing will be provided via Internet through a (SS) link.”7. The Defendants Foreclosure of Competition In The Market For Hospital Supplies ThroughExclusionary Contracts and Loyalty Agreements That Have The Same Exclusionary Effect178. Novation and Neoforma create distribution agreements with incumbent and market leading devicemakers that amount to exclusionary agreements with hospitals given the arrangements between Novation,LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, Curt Nonomaque, UniversityHealthsystem Consortium, Robert J. Baker and their member hospitals.179. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Baker also enter into explicit exclusionarycontracts with incumbent and market leading device manufacturers for a given product with which memberhospitals are obliged to comply by agreement and/or coercive threats of expulsion or penalties fordeviations.180. Explicit exclusionary contracts are created when Novation, LLC, Neoforma, Inc., Robert J.Zollars, Volunteer Hospital Association, Curt Nonomaque, University Healthsystem Consortium, Robert J.Baker forbid member hospitals from buying outside the cartel, either explicitly or by a practice of imposingpenalties if they do.181. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Baker exercise their power as exclusivepurchasing agents for hospitals by declining to approve competing devices in a given product market,3408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8739

effectively imposing sole source device contract on member hospitals even when they do not do soexplicitly.182. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Baker exclude suppliers by agreement byallowing member hospitals to buy from other hospital supply vendors including Medical Supply but onlyfor product categories not covered by the defendants cartel.183. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Baker create some exclusionary contracts thatare not imposed on member hospitals. Instead these member hospitals are free to accept or reject thoseexclusionary contracts on a contract-by-contract basis. Even with these “voluntary” exclusionary contractswhich often cover multiple products and manufacturers, impose retroactive penalties on deviation, and baneven considering rival products effectively bind member hospitals even when rivals for some products lateroffer a better and cheaper product.184. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Baker in exchange for fees and commercialbribes from manufacturers also use incentives to join exclusionary contracts that anticompetitively excludedevice rivals, harm consumers, and harm hospitals as a group.185. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Bake get members to accept exclusionarycontracts by co-opting hospital system directors and decision makers with cash and cash substitutepayments often in the guise of consulting contracts, giving hospitals other compensating benefits,disfavoring hospitals who do not join the exclusionary scheme, and/or giving hospitals who do join a shareof the supracompetitive profits earned from downstream consumers.186. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Bake overtly illegal forms of exclusivedealing proceed through voluntary agreements with multiple willing hospital buyers even though the longrun result is a reduction of competition harmful to the ultimate consumer and often to the hospital buyersthemselves.3508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8740

187. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Bake deceive governmental oversight bymaking anticompetitive agreements that do not require purchasing 100% from one manufacturer, butinstead some other high percentage like 90 or 95%.188. The defendants use a private brand through Novation, LLC called Novaplus. The Novaplus PulseOximetry Letter of Commitment (requiring 95% minimum of annual oximetry sensor purchases fromTyco-Nellcor, which had 88% of market); The defendants Novation Opportunity ® Spectrum I PortfolioParticipation Agreement (requiring 95% minimum spanning 12 product categories; The Ethicon-NovationCommitment Document (offering different discounts for Novation hospitals buying 90 or 95% of suturesfrom Ethicon, which had 81% of suture market)189. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake’s exclusive dealing arrangementscause anticompetitive harm by raising costs for Medical Supply, other distributors, suppliers andmanufacturers. The defendants accomplish their monopolization scheme by denying rivals the economiesof scale they need to compete effectively.190. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake create exclusive contracts byVolunteer Hospital Association and University Healthsystem Consortium’s general terms of the Novationmembership or the defendants’ contracts for particular product areas also often require the hospital to useNovation as its sole purchasing agent for the covered product categories. In Novation’s Opportunity ®Spectrum I Portfolio Participation Agreement it states “Participant declares Novation as its sole supply costmanagement company for the purchase of products in the OPPORTUNITY product categories. . . .Participant will purchase OPPORTUNITY ® products though Novation purchasing arrangements and willnot purchase OPPORTUNITY products or any products that compete with OPPORTUNITY productsthough any other supply cost management company.”191. Some of Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake’s hospital agreements provide that a3608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8741

signing hospital cannot solicit rival bids, examine rival products, or even entertain rival proposals toprevent Medical Supply or other Web based suppliers from providing competing product pricing.192. Novation’s Opportunity ® Spectrum I Portfolio Participation Agreement states “Participant willnot . . . participate in competitive product evaluations for OPPORTUNITY products.” Novation’sOpportunity ® Spectrum II Portfolio Participation Agreement (same); Supply Partner Terms ofParticipation Opportunity ® Spectrum I Portfolio states “Health care organization agrees not to causesupply partner to incur defensive selling costs during the term of this Agreement (such as can becaused by entertaining proposals from other vendors or conducting product evaluations) . . .”[emphasis added].193. The defendants’ Supply Partner Terms of Participation Opportunity ® Spectrum II Portfolio statesthe same. See, e.g., Letter from James Bradley of Stuart Cardiology Group to Jake Langer of Biotronik,Feb. 26, 2001 (“Hospital has entered into a GPO Novation contract, which provides only a single cardiacrhythm device vendor. The hospital is enforcing a 100% compliance to this vendor even though the actuallycontract states 95% compliance.”194. The defendants use contracts designed so that a hospital cannot consider rival products, to make itimpossible for the hospital to obtain products outside of the agreement made with Novation, LLC,Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, Curt Nonomaque, UniversityHealthsystem Consortium and Robert J. Bake even though on paper, the market is not restrained for theremaining 5-10%. The defendants’ agreements in practice rival devices are often 100% excluded fromhospitals despite the nominal right to buy 5-10% from them.195. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake conceal their exclusionaryagreements by not requiring an absolute obligation to buy a high percentage from the favored supplier, butinstead provide loyalty rebates if that high percentage is met. The Novaplus Pulse Oximetry Letter ofCommitment (discount contingent on 95% compliance). Novation’s Opportunity ® Spectrum I PortfolioParticipation Agreement also stated the same.196. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake use loyalty rebates as a more3708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8742

sophisticated penalty on noncompliance than that imposed under a traditional illegal exclusive agreement torestrain trade, and one that is far more enforceable to boot.197. With loyalty rebates, Novation can unilaterally impose a penalty for noncompliance by justwithholding the quarterly or annual rebate without even going to court, and can easily prove in court theamount of past rebates that must be returned. In this way courts become the defendants instrument ofmonopolization.198. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake use a termination penalty making thedefendants’ exclusive dealing agreements violate the Sherman Antitrust Act. The defendants add additionalpenalties that are more enforceable including loyalty rebates tat increase the exclusionary effect.199. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake use loyalty rebates that areconditional on the buyer taking all or a high percentage of its purchases from a favored supplier andamount to de facto exclusive dealing. IIIA Areeda & Hovenkamp, Antitrust Law 768B3, AT 151 (1996);XI Hovenkamp, Antitrust Law 1807, at 115-18 (1998).200. The defendants’ loyalty payments are used to inflate prices. (1) Here the rebates or discounts areconditioned on purchasing a high share of the buyer’s purchases from the supplier. Thus, this is not a peritem price cut that can be met by any equally efficient rival for any future purchases. Because the loyaltyrebates are conditioned on getting a high share of the buyer’s purchases, they leave rivals with access toonly a lower share, which may not sustain economies of scale. When they do so, such loyalty rebatesexclude rivals by worsening the rivals’ efficiency.201. (2) Once the hospital has committed to the arrangement, the rebates on all the hospital’s pastpurchases are contingent on it meeting the loyalty threshold. Because loyalty commitments can last for fiveto seven years, a failure to comply can result not only in losing any rebate already earned in the current yearbut a demand for a return of all the rebates paid in all past years too. Novation’s Opportunity ® Spectrum IPortfolio Participation Agreement states “all earned incentive payments received by the Participant will besubject to repayment if Participant fails to comply for the full [five-year] term of the OPPORTUNITY3808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8743

portfolio” with a 95% purchase commitment and other requirements; Novation’s Opportunity ® SpectrumII Portfolio Participation Agreement states the same.202. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake use the threat to reclaim all thoserebates on past purchases to induce their member hospitals not to switch to making future purchases from arival that is just as efficient and offering a lower price, effectively foreclosing Medical Supply from themarket for hospital supplies.203. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake’s exclusionary programs covermultiple products and manufacturers rather than just one. Sometimes the defendants and a given incumbentmanufacturer gives rebates or discounts on a whole product line if the buyer commits to making a highpercentage of their purchases from that manufacturer through Novation or Neoforma for each product inthe line. [Ethicon-Novation Commitment Document (offering highest discount for Novation hospitals thatbuy 95% of sutures and 85% of endomechanical products from Ethicon, which had 81% of suture marketand 61% of endomechanical products]204. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake even sometimes give rebates ordiscounts on menu of products from different manufacturers if the hospital commits to buying a highpercentage of each product from the corresponding manufacturer on the menu. Novation’s Opportunity ®Spectrum I Portfolio Participation Agreement employs a 95% purchase commitment applies for twelveproduct categories covering five different manufacturers, though with one manufacturer for each productcategory. Novation’s Opportunity ® Spectrum II Portfolio Participation Agreement uses an 85-95%purchase commitment applying to 14 product categories covering 7 manufacturers.205. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake’s market foreclosure agreementsapplying to multiple products do not differ from a single product exclusive dealing arrangement, but onlyworsen the anticompetitive consequences. Through these programs, the defendants impose a penalty for ahospital or health system’s failure to meet the threshold for any one product and in a multiple product3908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8744

loyalty agreement includes withholding or reclaiming rebates not only for that product but for all the otherproducts as well. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake can then exacerbate the penalty fornoncompliance after the rebates have been earned.206. The defendants have foreclosed competition in the market for hospital supplies so that even at thevery beginning of a rebate period, Medical Supply could not compete by simply offering a price on one ofthe products that matches or beats the price the incumbent manufacturer and Novation or Neoforma ischarging for that product net of the program discount.207. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake use their tremendous market powerof over 2000 hospitals and multiple product rebates or package discounts as an illegal tying agreementdescribed in X Areeda, Elhauge & Hovenkamp, Antitrust Law 1758b, at 343-346 (1996).208. The defendants’ scheme is designed to keep a more efficient Web based vendor or suppliers fromproviding products to hospitals at lower prices than the cartel. For the hospital would have to take intoaccount that even if it gets a better price from using the rival for that product, it loses the discount on all theother products in the program. The defendants’ multi-product rebates are equivalent to sidepayments givento hospitals and health systems in exchange for agreeing to enhance the manufacturer selling throughNovation and Neoforma’s market power by excluding other sources in one product, with the sidepaymentscompensating these hospitals and health systems for the fact that this scheme increases the price they payfor the product whose market power was enhanced.209. More generally, as noted above, even when a hospital does not formally make a multi-productcommitment, Novation and Neoforma pressure or threaten with expulsion any member hospitals who donot comply with the commitment obligations made on any of the defendants’ exclusionary agreements withincumbent manufacturers. Every single product exclusionary agreement of the defendants is effectively thesame as a multi-product one and violates Sherman 1.210. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake have inserted themselves betweenthe manufacturer and consuming hospitals to extract fees from incumbent manufacturers. These fees or4008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8745

commercial bribes are solicited by Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer HospitalAssociation, Curt Nonomaque, University Healthsystem Consortium and Robert J. Bake and are partiallyforwarded to member hospitals and more efficiently to hospital decision makers for high sharecommitments that are not volume-based at all, and are in actuality not rebates or discounts but a system ofgraft.211. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium and Robert J. Bake and their officers with the assistanceof US Bancorp, NA, US Bank, Jerry A. Grundhoffer, Andrew Cesere, The Piper Jaffray Companies andAndrew S. Duff have obtained cash and cash equivalents such as stock-options, warrants, or investmentinterests in the manufacturers favored by Novation and Neoforma’s commitment programs.212. The fees and bribes solicited by the defendants from favored manufacturers includes makingmonetary investments in the defendants’ owned businesses including Neoforma, Inc., and giving Novation,LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, Curt Nonomaque, UniversityHealthsystem Consortium, Robert J. Bake, US Bancorp, NA, US Bank, Jerry A. Grundhoffer, AndrewCesere, The Piper Jaffray Companies and Andrew S. Duff favorable business terms on other unrelateddeals.213. US Bancorp, NA, US Bank, Jerry A. Grundhoffer, Andrew Cesere, The Piper Jaffray Companiesand Andrew S. Duff also employed another tactic to extort funds from manufacturers and suppliers to enterthe cartel. US Bancorp, NA, US Bank, Jerry A. Grundhoffer, Andrew Cesere, The Piper Jaffray Companiesand Andrew S. Duff have hosted annual healthcare conferences where healthcare technology companiesseeking capitalization were forced to pay US Bancorp Piper Jaffray for underwriting their public offeringsand favorable analyst coverage marketed as “independent” research to create demand for their shares as apre initial public offering investment for qualified investors and most importantly to obtain an introductionto Novation and Neoforma officials to be favored by Novation’s commitment programs.214. US Bancorp, NA, US Bank, Jerry A. Grundhoffer, Andrew Cesere, The Piper Jaffray Companiesand Andrew S. Duff were paid large sums for a private meeting with Novation officials or for a prospectivehealthcare technology company’s membership in a GPO institute for evaluating technologies.4108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8746

215. Manufacturers and suppliers are forced to pay Novation, LLC, Neoforma, Inc., Robert J. Zollars,Volunteer Hospital Association, Curt Nonomaque, University Healthsystem Consortium, Robert J. Bakefixed amounts that are not linked to volume in the form of: (1) fees given to have products considered, (2)annual administration fees, (3) marketing or endorsement fees, and (4) licensing fees for use of theNovaPlus brand name.216. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Bake arrange for selected manufacturers andsuppliers to pay hospitals fixed fees that are not dependent on the volume of sales in exchange for theircommitment to achieving the target market shares. The fact that the payments given for loyaltycommitments often are not proportional to volume worsens the anti-competitive effects. The defendants’side-payments that are unrelated to sales volume are used because they are a more effective means ofdividing monopoly profits created by seller-buyer collusion designed to enhance Novation, LLC,Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, Curt Nonomaque, UniversityHealthsystem Consortium, Robert J. Bake’s market power.217. Sometimes Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association,Curt Nonomaque, University Healthsystem Consortium, Robert J. Bake make agreements where the defacto exclusivity for any given product is granted not to one incumbent manufacturer or supplier, but to twoof them. The defendants at times enforce a duopoly in some products to protect those manufacturers fromcompetition by rivals and entrants. Regardless, the motive of the defendants is to restrict output andincrease prices just as where the defendants enforce an absolute monopoly in a product or product line.”218. Novation, LLC, Neoforma, Inc., Robert J. Zollars, Volunteer Hospital Association, CurtNonomaque, University Healthsystem Consortium, Robert J. Bake have offered to allow rival productsfrom unfavored manufacturers and suppliers to be offered if they would agree to increase their pricesdramatically to levels higher than that being charged by the incumbent manufacturers and suppliers whobenefit from the exclusionary agreements. For example, Retractable Technologies reported that Novationfinally said it would agree to use safer needle technology from Retractable Technologies, but only if it weresold under Novation’s private label for a price 270% higher than Retractable wanted to charge. ThomasShaw, “Examine the ‘questionable’ side of GPOs,” Commentary, Dallas Business Journal (March 15,4208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8747

1999) Mark Smith, “Innovative medical products: a clash of blood and money,” Houston Chronicle (April18, 1999).8. The Monopolization Of The Hospital Supply Industry By The Defendants In ConspiraciesAnd Combinations With Premier, GHX, LLC and Their Predecessor Corporations219. On September 28, 1998, Richard A. Heard, Senior Vice President, Diversified Services obtainedvia subterfuge the business plan and model created by Samuel Lipari for Medical Supply Management forthe Defendants using a false offer to buy out the company from Samuel Lipari.220. On November 23 and 24th, 1998, the Defendants obtained a demonstration in Salt Lake City, Utahof Samuel Lipari’s software that allowed purchases of hospital supply products to be purchased andmanaged via pc computers instead of the existing costly mainframes still used by the Defendants and theirmember hospitals and manufacturers to this day.221. No agreement was finalized because with the demonstration and intellectual property obtained bythe defendants through Richard A. Heard and Owen Health, a subsidiary of Cardinal which would later bepart owned by the Defendant Novation, the Defendants had obtained the information they needed toprevent Medical Supply from obtaining capital to enter the marketplace by implementing their ownelectronic exchanges, diluting the value of Samuel Lipari’s innovation with false substitutes thatmaintained the group purchasing organization enterprise of the Defendants to artificially inflate hospitalsupply costs.222. In June 1999, MedAssets was formed, it acquired the two GPO’s InSource and Axis Point HealthServices and then Health Services Corporation of America (HSCA) that had provided supplies to SamuelLipari’s two earlier companies in May 2001.223. On June 28, 1999, Neoforma, Inc. announced that it has elected Robert J. Zollars to the position ofChairman, President and Chief Executive Officer. He succeeds Jeff Kleck, Ph.D., co-founder of Neoforma.Zollars joins Neoforma from his position as an E.V.P. and Group President at Cardinal Health, Inc.224. On March 7, 2000, Medibuy.com Inc. (Medibuy) a vendor of Internet-based health care supplypurchasing software announced it was acquiring Premier Health Exchange LLC, the electronic commercesubsidiary of San Diego-based Premier Inc.225. On September 1, 2000, Medibuy announced it was acquiring empactHealth.com, a Nashville,Tenn.-based purchasing Web portal started by hospital chain HCA--The Hospital Co. Shareholders of the4308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8748

privately held empactHealth.com, including HCA, will receive approximately 23% of medibuy.com.HCA's ownership interest in medibuy.com will total approximately 16%. Under the agreement, San Diegobasedmedibuy.com will become the exclusive electronic commerce partner to HCA's 204 hospitals, as wellas several members of HCA's group purchasing organization, including LifePoint Hospitals, TriadHospitals and Health Management Associates.226. On February 6, 2000, Empacthealth announced that Columbia/HCA Healthcare Corp. is pumpingup to $40 million into empactHealth.com, which will charge hospitals and vendors a fee for orderingsupplies online. Columbia/HCA, the nation's largest for-profit hospital company, will be the firm's firstcustomer.227. On March 30, 2000, EmpactHealth announced today that it has signed a founding partneragreement with Health Management Associates (HMA), the premier operator of acute care hospitals in theSoutheast and Southwest areas of non-urban America. Under the terms of the agreement, HMA willexclusively implement and use empactHealth's empactBuy solution for the online requisitioning, orderingand purchasing of all medical and non-medical supplies and services for the company's 32 acute carehospitals, and any facilities HMA adds in the future. HMA will also become a founding partner and anequity shareholder in empactHealth.228. In the same announcement empactHealth stated it is a leading healthcare e-procurement companythat synchronizes the business processes of healthcare buyers and suppliers to reduce costs and increaseefficiency at both ends of the healthcare supply chain. The company has already signed a large critical massof committed buyers, including more than 240 Columbia/HCA and Health Management Associatesfacilities that will use empactBuy, exclusively, as their e-procurement solution. In addition, empactHealthhas commitments from Johnson & Johnson, Baxter, and Medline and a number of other suppliers tointegrate their ERP business processes with empactSupply. empactHealth offers healthcare-specific e-procurement solutions based on foundation technology from Commerce One and adds valuable functionssuch as business intelligence, contract management, and inventory management. The company isNashville-based and privately funded.229. On March 29, 2000, Global Healthcare Exchange (GHX) was founded as a Limited LiabilityCompany or a trust by five major healthcare manufacturing competitors: Johnson & Johnson Health Care4408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8749

Systems; GE Medical Systems; Baxter Healthcare Corp.; Medtronic USA, Inc. and Abbott Exchange, Inc.Much of the capitalization came from GE, the parent company of GE Medical. The name was also copiedfrom GE’s existing internet marketplace for hospital supplies Global Exchange and was part of a plancreated by Jeffrey Immelt, then GE Medical president and now CEO of GE to prevent competition fromelectronic marketplaces that were independent from the manufacturers ability to control hospital supplydistribution with kickbacks and commercial bribes.230. On March 30, 2000 Neoforma announced the merger with Eclipsys Corporation (NASDAQ:ECLP) and HEALTHvision, Inc. In conjunction with the agreements, Neoforma.com announced that it hassigned an exclusive 10-year strategic agreement to provide e-commerce services for the 6,500 healthcareorganizations participating in the purchasing programs of Novation, LLC, the world's largest buyer ofmedical supplies and the supply company of national healthcare alliances VHA Inc. and UniversityHealthSystems Consortium (UHC). The companies later decided not to merge and instead to form acombination to jointly control the market for hospital supplies in e-commerce among Novation, LLC’scustomers.231. On March 31, 2000 The New Healthcare Exchange was formed as a consortium of four of the USlargest health care distributors, which include AmeriSource Health, Cardinal Health, Fisher ScientificInternational; and McKesson HBOC.232. On May 25, 2000 Neoforma announced that it has reaffirmed its exclusive 10-year agreement toprovide e-commerce procurement services for Novation. Neoforma.com also announced modifications tothe structure and terms of its stock and warrant transactions with VHA Inc. and University HealthSystemConsortium (UHC), the national healthcare alliances that own Novation. Much of the public offering wassubscribed to or purchased by Novation with funds owned by UHC and VHA member hospitals andwithout their knowledge and approval. The capitalization of Neoforma as a direct consequence rose to 1.2billion dollars.233. Neoforma also announced on May 25, 2000 that Eclipsys Corporation and HEALTHvision, Inc.agreed by mutual consent to terminate, effective immediately, their proposed mergers announced March30, 2000. Instead, Neoforma.com, Eclipsys and HEALTHvision have entered into a strategic commercialrelationship that will include a co-marketing and distribution arrangement between Neoforma.com and4508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8750

HEALTHvision. The arrangement includes the use of Eclipsys' eWebIT enterprise applicationintegration (EAI) technology and professional services to enhance the integration of legacy applicationswith Neoforma.com's e-commerce platform.234. Under the terms of the modified Novation agreements, VHA will receive 46.3 million shares,representing approximately 36% of Neoforma.com, and UHC will receive 11.3 million shares, representingapproximately 9% of Neoforma.com. In addition, under new warrants to be issued to VHA and UHC, VHAand UHC will have the opportunity to earn up to 30.8 million and 7.5 million additional Neoforma.comshares, respectively, over a four-year period by meeting certain performance targets. These targets arebased upon the historical purchasing volume of VHA- and UHC-member healthcare organizations that signup to use Neoforma.com's e-commerce exchange. The targets increase annually to total healthcareorganizations representing approximately $22 billion of combined purchasing volume at the end of thefourth year. The warrants will have a strike price of $0.01. On a pro forma basis, including shares issuableupon the exercise of Neoforma.com's existing options and warrants, and VHA and UHC earning all of theshares underlying the performance-based warrants, Neoforma.com would have approximately 175 millionshares outstanding.235. The May 25, 2000 announcement also revealed the interlocking directors used by the Defendantsto restrain trade in hospital supplies. In connection with the new agreements, two of the seven seats on theNeoforma.com Board of Directors will be filled by VHA designees after closing of the transaction. Subjectto certain exceptions, VHA has agreed to vote any Neoforma.com shares it owns in excess of 20% ofoutstanding Neoforma.com stock in the same proportion as all other stockholders. Subject to certainexceptions, UHC has agreed to vote any Neoforma.com shares it owns in excess of 9% of outstandingNeoforma.com stock in the same proportion as all other stockholders. VHA and UHC have also agreed tocertain other restrictions on acquisitions and transfers of Neoforma.com stock.236. Mark McKenna, Novation's president, said, "We are excited about the advantages and value thatour relationship with Neoforma.com offers our members in managing their supply expenses andinventories. We have already made significant progress in our relationship with Neoforma.com, includingthe establishment of supplier and buyer relationship management teams and a targeted implementationstrategy. We anticipate members will be able to begin conducting purchase transactions as early as the third4608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8751

quarter of this year."237. Curt Nonomaque, VHA executive vice president, noted, "We believe the increased efficiencies,reduced costs and ease-of-use features that Neoforma.com's B2B technology provides will significantlybenefit both Novation's member organizations as well as other health care providers. In addition, VHA iscreating a separate cooperative pool and will distribute Neoforma.com stock to our members in proportionto their dollar volume of purchases through Neoforma to further align incentives. In addition, the newstrategic partnership involving Neoforma.com, HEALTHvision and Eclipsys offers additional benefits forhealthcare organizations seeking to integrate and use Internet technology. These agreements build onexisting customer relationships with HEALTHvision and Eclipsys that provide the Web-based solutionsthat enable hospitals to connect with their physicians and communities."238. Edward Schwartz, executive vice president at UHC, indicated, "We're pleased that the relationshipwith Neoforma.com is moving forward and that UHC's members will be able to gain value from it. We'realso excited to announce that the first organization to sign up for the exchange through Novation is a UHCmember, the Medical College of Virginia Hospitals in Richmond, Virginia."239. Scott Decker, HEALTHvision chief executive officer, said, "We're pleased that through ourrelationships with Neoforma.com and Eclipsys we will be able to offer customers a comprehensive e-Health solution. HEALTHvision's customers will be able to quickly take advantage of Neoforma.com'sexpertise in supply chain management because Neoforma.com's contributions will nicely complement ourexisting services. HEALTHvision currently provides Web-based services to more than 1,200 hospitals, andthe potential addition of e-commerce capabilities has already generated a great deal of interest anddemand."240. According to Zollars, the agreement with Novation creates immediate potential scale forNeoforma.com's e-commerce platform, as Novation represents more than 30% of U.S. procurement inhealthcare with a membership that includes many of the nation's largest and most respected healthcareorganizations and physicians. Novation also brings an existing base of relationships with a wide range ofhealthcare suppliers, essential to the success of an e-commerce offering. Novation plans to be active inrecruiting other suppliers to the Neoforma.com marketplace. Novation already provides its alliancemembers with highly regarded and utilized Web-enabled tools, including an online catalog, Web-based4708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8752

tools for cross-referencing and standardization.241. On September 01, 2000, Medibuy announced that shareholders of the privately heldempactHealth.com, including HCA, will receive approximately 23% of medibuy.com. HCA's ownershipinterest in medibuy.com will total approximately 16%. Under the agreement, San Diego-basedmedibuy.com will become the exclusive electronic commerce partner to HCA's 204 hospitals, as well asseveral members of HCA's group purchasing organization, including LifePoint Hospitals, Triad Hospitalsand Health Management Associates. medibuy.com will integrate empactHealth.com's technology into itsproducts and services.242. On April 2001 Broadlane an electronic marketplace that comprises Tenet Healthcare Corp.,Community Health Systems, Kaiser Permanente, Iasis Healthcare, Paracelsus Healthcare, Cleveland ClinicFoundation, Universal Health Services, Intermountain Health Care and Continuum Health Partners isformed.243. On March 26, 2001 Medibuy and Premier announced the launch of Premier Exchange, an Internetportal providing electronic commerce services to Premier’s 1,850 alliance members. San Diego-basedPremier is a purchasing coalition for health care organizations. Medibuy, also in San Diego, is an electronicprocurement vendor offering online supply ordering and management. Medibuy earlier this year acquiredPremier’s start-up online supply division.244. On April 30, 2001 HealthNexis is created. Formerly the New Health Exchange, was founded inApril 2000 by four of the nation’s largest healthcare companies: AmeriSource Health Corporation (NYSE:AAS), Cardinal Health, Inc. (NYSE: CAH), Fisher Scientific International, Inc. (NYSE: FSH), andMcKesson HBOC, Inc. (NYSE: MCK).245. On November 26, 2001 Global Healthcare Exchange and Health Nexis announced they willcombine their operations into a single Internet-based exchange, according to the organizations. Suppliermembers of both organizations will be connected to GHX's 70 integrated delivery networks (IDNs), whichcurrently represent approximately 600 hospitals. The combined entity will operate as Global HealthcareExchange LLC and will be headquartered in Westminster, Colorado. The merger announcement followsrecent GHX alliances with Neoforma Inc. and AmeriNet Inc. Says GHX president Mike Mahoney,"Connectivity, participation, and cooperation among all members of the supply chain is critical for e-4808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8753

commerce to reach its full potential. HealthNexis and its membership of leading healthcare companiesprovide considerable e-commerce technology solutions and supply chain expertise. This combinationreinforces GHX's commitment to building an open and neutral healthcare exchange to drive supply chainsavings."246. On October 09, 2002 Global Healthcare Exchange, LLC (GHX) and Neoforma, Inc. announcedthey have signed a definitive agreement to create the first comprehensive, integrated supply chain solutionfor the healthcare industry. Neoforma and GHX expect the strategic alliance to accelerate the adoption of e-commerce by hospitals and suppliers, accelerating supply chain cost savings. The agreement enablesNeoforma's hospital customers, including the 514 hospitals currently contracted to use the NeoformapoweredMarketplace@Novation, to transact business with GHX's growing network of healthcaresupplier members through the integrated solution, without the added cost of implementing and maintainingseparate Internet connections. GHX's connected suppliers will be able to sell their products to Neoforma'scurrent and future hospital customers through one Internet-based exchange, reducing implementation costsand simplifying the e-commerce strategy for these suppliers. GHX has signed more than 100 leadingsupplier members.247. On December 11, 2002 Global Healthcare Exchange, LLC (GHX) and Medibuy, Inc. announcedthey have signed a definitive agreement to merge their two companies. The new company will be calledGlobal Healthcare Exchange, LLC (GHX). Owned by many of the world’s largest healthcare suppliers andproviders, GHX and Medibuy will combine their respective Internet-based trading exchanges to create thelargest single exchange in healthcare. More than 1400 hospitals and other healthcare facilities and 100suppliers have already selected GHX or Medibuy as their preferred solution for purchasing healthcareproducts and supplies. Through this merger, the newly created exchange will provide a means for allparticipants in the healthcare supply chain, including provider organizations, manufacturers, grouppurchasing organizations (GPOs) and distributors, to benefit from improved efficiencies, cost reductions,process automation, and the adoption of industry standards.248. The same December 11, 2002 announcement described the owners of GHX: “Originally foundedin March 2000 by five major healthcare manufacturers: Johnson & Johnson Health Care Systems; GEMedical Systems; Baxter Healthcare Corp.; Medtronic USA, Inc.; Abbott Exchange, Inc., GHX has since4908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8754

ealized its vision of being owned by representatives of the entire supply chain, including manufacturers,distributors, providers and group purchasing organizations. In addition to the founders, the original equityowners included: Siemens; Becton, Dickinson & Co.; Boston Scientific Corp., Tyco Healthcare Group, LP;Guidant Corp.; C.R. Bard, Inc.; B Braun Medical Inc. In December 2001, GHX combined businessoperations with the distributor-created exchange, HealthNexis, adding AmerisourceBergen Corp.; CardinalHealth, Inc.; Fisher Scientific International, Inc.; and McKesson Corp. to its list of owners. A year later, amerger with Medibuy Inc. rounded out the current ownership roster with the addition of Premier, Inc., oneof the nation’s largest group purchasing organizations, and HCA, a national integrated delivery network(IDN).249. While adopting Medical Supply’s neutral marketplace concept, the same announcement revealsthat GHX still maintains and is an instrument for enforcing the Defendant Novation and the unnamedcoconspirator Premier’s anticompetitive pricing achieved through contracts that horizontally and verticallyfix prices:250. “How does GHX benefit group purchasing organizations (GPOs)? GPOs are working with GHXto develop integrated contract management and other e-commerce services that enable their hospitalmembers to more easily and efficiently purchase contracted products at the agreed upon price.”[Emphasis added]251. On April 11, 2003, GHX, MedAssets HSCA announced that they have formed a StrategicAlliance. Global Healthcare Exchange and MedAssets HSCA, the St. Louis-based group purchasingorganization, announced they have formed a strategic alliance they say will make e-commerce servicesavailable to more than 16,000 healthcare providers. Under the terms of the agreement, MedAssets hasselected GHX as an integrated e-commerce solution for members of its GPO. As a result, MedAssetsmembers will be able to purchase products via GHX's Internet-based trading exchange using pricing datacontained in the CDQuick E-Catalog, supplemented by the accurate product data in the GHX AllSourcecatalog.EVENTS252. On or about 3/12/2002, and following 3 years of R&D Samuel Lipari, President and CEO ofMedical Supply Chain, Inc. (Medical Supply) began a process of selecting a corporate bank for the rollout5008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8755

of its healthcare supply chain empowerment program that produces significant benefits to healthcare and itspatients. He sought input from associates and advisors concerning selection of an appropriate national bankthat would be capable of a full range of corporate banking services, including nation wide checking, escrowservices, short and long term credit facilities, receivables financing and international clearing oftransactions between thousands of health systems and their suppliers. Several national banks wereevaluated but US Bancorp NA was selected because it also had an investment banking relationship withPiper Jaffray. Piper Jaffray had targeted healthcare customers and participated as underwriter and fundsmanager for pre IPO healthcare manufacturers and service providers and US Bancorp NA acted asunderwriter for corporate bonds of healthcare companies.253. On or about 4/15/02 Samuel Lipari arranged for Medical Supply’s corporate account to be openedat US Bank’s SW Topeka branch. The account was opened in the name of Medical Supply Chain, Inc.,using Medical Supply’s federal tax I.D. number with a cashier’s check in the name of Medical Supply’sagent and drawn on Miner’s State Bank of Frontenac Kansas for $7,500.00.254. On or about 4/25/02 Samuel Lipari opened a personal account in his name at US Bank’sneighborhood branch at 3640 S. Noland Road, Independence, MO. Before opening the checking account,the US Bank employee reviewed Samuel Lipari’s account application and submitted Samuel Lipari’spersonal data to Chex Systems, Inc. for a background check, evaluation and verification of eight years ofhis previous banking history at other banking institutions. Samuel Lipari was approved for a personalchecking account and an electronic debit card. Samuel Lipari initially used the personal account to payexpenses of Medical Supply with reimbursement from the corporation.1. Andrew S. Duff And Piper Jaffray’s Concerted Refusal To Deal255. On 6/5/02 Samuel Lipari contacted Piper Jaffray’s Minneapolis headquarters to speak to HeathLukatch, managing director of the Piper Jaffray healthcare venture fund about Medical Supply beingconsidered as a venture capital candidate. He was instructed to send an executive summary of his businessplan via email. Samuel Lipari sent the summary and financial projections for Medical Supply with arestriction on disclosure notice. Piper Jaffray made no response to the receipt of the executive summary andfinancial projections from Medical Supply’s business plan. Samuel Lipari again telephoned theMinneapolis offices of the Piper Jaffray venture fund managers and his calls were not taken and not5108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8756

eturned. Samuel Lipari also attempted to speak to a Piper Jaffray venture fund manger in their SanFrancisco office but again, his calls were not taken or returned.256. On 7/9/02 Samuel Lipari and Medical Supply were visited by a Merger and Acquisitions attorneyfor another San Francisco venture capital firm and after extensive discussions with her at Medical Supply’sBlue Springs, MO headquarters on the need to quickly enter the healthcare supply chain market and takeadvantage of the opportunity created by the healthcare industry’s sudden willingness to reject the existingGroup Purchasing Organizations, and after the New York Times had began uncovering corruptionrevelations in the market. However the discussions revealed the current condition of venture funding andIPO underwriting was very troubling. At the time of these meetings the first news of WorldCom’s debaclewas breaking. Medical Supply’s management felt with the exception of Piper Jaffray, which concentratedits investments in healthcare, that much of the assets venture funds reported were in fact overvaluedequities in telecom technology companies and that the collapse of WorldCom would further depress theventure capital markets.257. The venture capital M&A attorney questioned Samuel Lipari about the overtures of largecompanies seeking to acquire Medical Supply. Samuel Lipari recounted the contacts made with SupplySolution, a Michigan based company focused on expanding integration in the healthcare industry,GoCoop/Avendra a Florida based company providing e-procurement/group purchasing in the hospitalityindustry and also wanted to integrate in the healthcare industry, both of which were seeking go to marketpartners in healthcare, Owen Healthcare the pharmaceutical distribution subsidiary acting for Cardinal andCerner, a Kansas City healthcare company with enterprise resource planning software that is based on anolder operating system, called EDI that is inferior to Medical Supply’s web based services and poorlysuited for electronic commerce.258. Cerner had bought out Mitch Cooper & Associates, a healthcare supply chain consulting companyand seemed to be trying to acquire the capability to create an electronic healthcare marketplace.259. Samuel Lipari told the VC attorney that Medical Supply would not compromise itself by beingaligned with any existing healthcare supplier. Medical Supply has the solution and he did not want to betainted with companies that support the high cost healthcare problem. He also recounted how start uphealthcare electronic marketplace firms with technology similar to Medical Supply like Empacthealth and5208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8757

Medibuy had been bought up by GPOs for tens of millions of dollars, but that once they were no longerindependent, their market potential was eliminated and the technology was used by GPO firms to deceivehealth systems into thinking their GPO partner was attempting to increase its economic efficiency when infact they continued to restrict trade in support of monopolizing markets.260. Medical Supply resolved to develop a way to internally capitalize a roll out of its supply chainempowerment program and supply chain management technology. Medical Supply settled on a plan thatwould utilize the value of its healthcare supply chain intellectual property and offer a comprehensive yearlong education and healthcare supply chain certification program to independent representatives.261. This plan would put representatives in the field nationwide that possess the knowledge and skillsto relate to all levels of management in healthcare systems and assist in the adoption of Medical Supply’ssupply chain empowerment program. The independent representatives would pay for their certification andfund their own marketing and sales operations, consistent with distribution systems that rely onindependent manufacturer’s representatives. Since Medical Supply’s web services were new to the market,Samuel Lipari decided that it would be critical for the certification fee to be held in escrow until thecandidates had a chance to meet Medical Supply’s certification team and have a chance to see if they wouldsucceed in mastering healthcare supply chain empowerment knowledge. After a week long intensiveseminar, the candidates would have the opportunity to decide whether or not to commit to the certificationprogram and Medical Supply would have the opportunity to reject any candidates it felt would not succeedin the program.262. Medical Supply developed a curriculum and contracted with the industry’s foremost logistics andsupply chain experts to provide instruction during the weeklong seminar and assist and advise candidatesthroughout the certification process. Medical Supply made arrangements to include information andpresenters from companies with expertise in financial analysis of healthcare purchasing, including strategicsourcing and human resource evaluations so that the representatives would be able to represent productsand technology services outside of Medical Supply’s capabilities that would complement Medical Supply’ssupply chain empowerment program in allowing a health system/hospital to break free of its GPO supplier.263. Beginning 8/1/02 Medical Supply advertised nationwide to recruit experienced account executivesand sales professionals and processed hundreds of applicants with detailed evaluation of resumes, job5308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8758

history and financial disclosure applications. For the first of what were to be quarterly classes, MedicalSupply selected 15 candidates that had the potential to succeed as independent representatives for itsservices. After numerous telephone interviews ten applicants had committed to becoming certificationcandidates and attend the certification class starting the first week of December/02. During this same time,Medical Supply was preparing the escrow account system that the candidates would utilize.2. US Bank’s Concerted Refusal To Deal264. On or about 10/1/02 Medical Supply contacted Chris Walden of the Noland Road, IndependenceMO branch of US Bank for direction on escrow accounts and commercial banking services. MedicalSupply was referred to Becky Hainje a US BANCORP “Private Banker” and on or about 10/3/02 BeckyHainje contacted Samuel Lipari and told him she would arrange to put him in contact with the persons indifferent departments of US Bank that could provide Medical Supply the services Medical Supplyrequested and needed. She connected Medical Supply with Brian Kabbes in St. Louis who was responsiblefor US Bank commercial trust accounts in Missouri and Kansas. She also connected Medical Supply withDouglas Lewis, responsible for commercial loans in the Noland Road office.265. Samuel Lipari described Medical Supply’s need for escrow accounts to Brian Kabbes and emailedhim an escrow contract that Medical Supply counsel had prepared for its candidates. Brian Kabbes askedquestions about the candidates, the certification program and how many candidates had been selected sofar. Samuel Lipari negotiated with Brian Kabbes to reduce the escrow fee per account since all escrowaccounts would be identical, and US Bank had refused to have the funds in a single account. Brian Kabbesagreed to lower the fee for US Bank’s escrow agent services from the normal of $1,500 to $600 per accountand no hidden or additional transaction or disbursement fees.266. After reviewing the escrow contract, on or about 10/5/02 Brian Kabbes communicated to SamuelLipari that the language of paragraph 10 “Security Interests” should be changed so that a security interestfor US Bank could be created in the $5,000 portion of the escrow that became Medical Supply’s propertythe moment a candidate submitted their certification funds into escrow. Medical Supply altered its escrowcontract to conform to Brian Kabbes’ s suggestion and on or about 10/7/02 emailed the changes to BrianKabbes. Brian Kabbes and US Bank were identified as the escrow agent in the escrow agreement and BrianKabbes’ address was included in the body of the agreement.5408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8759

267. On or about 10/8/02 Samuel Lipari spoke again to Becky Hainje about Medical Supply’s need fora business line of credit based on the Medical Supply portion of the escrow assets. Becky Hainje said shehad talked to Brian Kabbes and he had told her there would be no problems with the escrow accounts, thatthey were a “slam dunk.” She suggested Samuel Lipari call Doug Lewis and make an appointment to applyfor the line of credit, which was based on the escrow account assets.268. On or about 10/9/02 Brian Kabbes called to request an additional change in the escrow contract.He supplied a specified US Treasury fund investment language for the funds while the funds were in thecustody of US Bank Trust Department. Medical Supply agreed to the additional change and modified theinvestment instructions exactly as Brian Kabbes instructed. Medical Supply also ask if there were any otherchanges needed before Medical Supply sent the contracts out to its certification candidates. Brian Kabbessaid there would be no other changes and asked why Medical Supply was sending the candidates theescrow contract. Medical Supply explained that the contracts were going out with the certification programagreement so candidates would have a chance to review the information before their November 1stdeadline, which required their funds to be in the US Bank escrow accounts. Brian Kabbes acknowledgedthe explanation and agreed to look over the release document Medical Supply developed that candidateswould execute following the weeklong evaluation seminar to be held the first week of December.269. During this conversation, Brian Kabbes also requested Medical Supply’s current corporate goodstanding documentation from the Missouri Secretary of State’s Office. Medical Supply agreed to send himthe reinstatement and tax clearance documents on Friday 10/11/02 and that Samuel Lipari was meetingwith Doug Lewis on the afternoon of Thursday 10/10/02 to set up the credit facility using the escrowaccounts as security. Samuel Lipari told Brian Kabbes he would have Doug Lewis send the requestedinformation to Brian Kabbes on 10/11/02. Brian Kabbes made no statement that US Bank had yet toapprove Medical Supply ‘s escrow accounts and sought no additional information.270. On or about Thursday 10/10/02, Samuel Lipari delivered the Medical Supply business plan andassociate program to Douglas Lewis, at the US Bank, Noland road office to apply for the agreed uponcommercial line of credit based on the portion of the escrow accounts Medical Supply would retain.5508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8760

271. The business plan and associate program booklets each had cover pages giving notice of restricteduse and that Medical Supply protected the confidential business trade secret and intellectual propertycontained in them.272. A letter of introduction also stated the contents were protected and restricted disclosure andpossession of the materials. Two more folders contained the good standing documentation Brian Kabbesrequested and the associate program contracts that were sent to the candidates.273. Doug Lewis asked how many candidates Medical Supply had and Samuel Lipari reached into hisbrief case and held up the ten folders of applicants who had committed to sending in their funds byNovember 1st and five others who were in the final stages.274. Samuel Lipari further explained that he planned to start a new certification group each quarter.Samuel Lipari was given a loan application and agreed to and did return the application the next day.275. On or about Tuesday 10/15/02 Brian Kabbes called Samuel Lipari and informed him that US Bankhad turned down the escrow accounts because of the USA PATRIOT Act. When asked to clarify, he saidthe know your customer requirements had changed and US Bank could not set up the escrow accounts forMedical Supply.276. Samuel Lipari was shocked and stunned and handed away the phone, where Brian Kabbesrepeated again The Patriot Act as the reason the accounts were denied.277. Later that morning Samuel Lipari called Becky Hainje and asked if she could see what happened.Samuel Lipari explained that Medical Supply was counting on the escrow accounts and that the line ofcredit depended on them too. He said he could not believe the USA PATRIOT Act could be a reason thatapplied to Medical Supply. She said she would call and see what happened.278. Becky Hainje called back and left a taped recording on the Medical Supply answering system andlisted the reasons Brian Kabbes told her. She said the reasons were the lack of a “relationship with theBank... that the principals involved with the business were people unknown to the bank, but the mainreason is to know your customer "Patriot Act" that was enacted after 9/11, and which we could not reallygive all the correct answers on the source and flow of money.3. US Bancorp, Andrew Cesere and Jerry Grundhoffer’s Concerted Refusal To Deal5608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8761

279. On or about 10/15/02 Medical Supply found Andrew Cesere was the head of US Bancorp trustdepartment on the US Bank web site and at 4 p.m. called his secretary Barb in Minneapolis. He wasunavailable so Medical Supply asked her to leave instructions for him to call Samuel Lipari about MedicalSupply’s corporate escrow account rejection at 9 a.m. the following morning.280. Barb asked for more details concerning the problem. She said Mr. Cesere had a morning meetingbut she would get the message to him. At 4:30 p.m. she called back and asked for additional informationand the names of the people Medical Supply had dealt with so that Mr. Cesere could inquire about theproblem.281. At 9 a.m. the following morning on or about 10/16/02 Ed Higgins called, leaving a tape-recordedmessage on Medical Supply’s answering system identifying him as the executive vice president of Midwesttrusts for US Bank. Samuel Lipari, believing that the USA Patriot Act had probably been used to reject theescrow accounts because of his family sir name which is also the name of a small group of Islands in theMediterranean Sea and which ends in “ari” like many Moslem sir names of people of Arabic descent,activated a tape recorder with a built in microphone and called Mr. Higgins back on the speaker phone.282. Each subsequent call to US Bank in which Samuel Lipari participated was also recorded by him todocument what he suspected was discrimination based on his national origin or ethnic descent.283. Ed Higgins listened to Samuel Lipari after stating he was an attorney and how long he had beenworking in trust banking, agreed with him that he saw no reason why the USA Patriot Act would apply toMedical Supply.284. Samuel Lipari explained that Medical Supply needed additional US Bank services including creditfacilities, receivables financing and clearing and settlement services for approximately 90 million worth oftransactions in the first year of operations. He said he would check into the matter and call Samuel Lipariback later that day.285. Instead of Ed Higgins, Brian Kabbes called back with Lars Anderson who he identified as head ofcorporate trust new business development person and Susan Paine who he said he reported to, both on theline with him. Medical Supply explained that at the time of his previous call, it was not realized that theescrow account contracts that US Bank had approved had already been sent out to the candidates in relianceon US Bank’s agreement to host the escrow accounts.5708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8762

286. Lars Anderson expressed some irritation that Medical Supply had contacted the head of the trustunit about the rejection of escrow accounts. Lars Anderson said the bank had never been on board and itwas not a done deal. Brian Kabbes denied that there had been an agreement; he said he had twice toldSamuel Lipari.287. Lars Anderson said that there had never been a signed off agreement to provide the service andthat there had never been any bid for it. Medical Supply contradicted that and said the price for the servicehad been quoted by Brian Kabbes and after negotiating, a specific amount had been agreed upon.288. Samuel Lipari also told them Brian Kabbes provided and requested changes to the escrow and thatBrian Kabbes had told Becky Hainje it was a “slam dunk.”289. During the call Medical Supply attempted several times to work out any misunderstandings andset up at least the 10 accounts Medical Supply had relied on US Bank for and that US Bank had knownabout and that Medical Supply was now in danger of being irreparably harmed.290. Medical Supply stated that the Patriot Act did not apply and that Medical Supply was in actualityan established US Bank customer and that Medical Supply had been in a trust relationship with US Bankand the bank even had its business plan and information about its proprietary business model.291. Brian Kabbes said that the trust department was a “stand-alone unit” and had its own criteria foraccepting customers. US Bank refused to reverse its decision.292. Medical Supply pointed out that it had not received a true reason for denial of the accounts andthat the reason given was a pretext at best.293. Viewing US Bank’s actions, Medical Supply stated they could only be explained by a conflict ofinterest due to US Bancorp’s existing healthcare investments and involvement. Medical Supply feltextremely disturbed by the apparent out come of this situation, there was not enough time to establish anew banking relationship with another nationally recognized Bank and Medical Supply would loosesubstantial momentum.294. Medical Supply had spent several months building up to roll out it’s supply chain empowermentprogram and felt to change a trust relationship in the middle will be devastating to it’s entry to market.Medical Supply researched over 300 resumes only to find 30 that appeared to be qualified.5808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8763

295. On or about 10/17/02 Samuel Lipari telephoned Douglas Lewis and told him what had happened.Doug said he had sent Brian Kabbes the good standing documentation but not the business plan andassociate program. Samuel Lipari instructed him not to send the business plan and associate programmaterials to the corporate trust office of US Bank in St. Louis because of previous losses of intellectualproperty from unauthorized business plan dissemination.296. Samuel Lipari told Douglas Lewis that Medical Supply would be litigating over the escrowdecision and planned to renew its application for a line of credit once it had the situation straightened out.297. Samuel Lipari suggested he might find another bank but Douglas Lewis said that would make theline of credit difficult. Samuel Lipari further instructed Douglas Lewis to hold on to the materials and keepanyone else from having access to them. Douglas Lewis agreed and stated he would keep the business planmaterials safe.298. On or about 10/18/02 Medical Supply drafted a letter and sent it to Jerry A. Grundhoffer, thePresident and Chief Executive Officer of US Bancorp NA with a copy being sent to Andrew Cesere,explaining the staggering damages US Bancorp would be liable for in imminent litigation due to the refusalto provide escrow accounts to Medical Supply. Medical Supply suggested an alternative of fact findingdepositions to take place in St. Louis, MO before the end of the day Tuesday 10/22/02, believing US Bankto be misinformed about the USA Patriot Act and any reason for denying the escrow accounts.299. US Bancorp Trust Department corporate counsel, Kristen Strong replied Friday 10/18/02 via faxand priority delivery with a letter denying US Bancorp NA was in contract with Medical Supply and that ifany law suit is filed to address service for the trust department to her at her office.300. Medical Supply called the trust department counsel Monday10/21/02 to ask for service addressesof the other named entities and employees. Kristen Strong said the same address would be good for all andthen proceeded to ask what the causes of action were. Medical Supply explained that it was chiefly anantitrust action based on the Sherman, Clayton and Hobbs Act and that causes of action under the USAPatriot Act were also a basis for the suit.301. Kristen Strong was surprised Medical Supply was told the USA Patriot Act had been given as thereason for the denial of escrow account service but reiterated that there was no contract in her view and shesaw no basis for the other causes of action. Medical Supply stated that it would fax the complaint to her at5908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8764

the time the action was filed at the end of business Thursday 10/24/02, but they were still waiting for Mr.Gunderson to select the alternative of mutual fact finding to promote a resolution of the matter withoutlitigation.302. Kristen Strong stated that the depositions would not lead to any meaningful explanation, thatMedical Supply had her letter explaining US Bank’s reason for denying the escrow accounts and that thebank reserved the right to choose whom it served.303. Medical Supply reminded her that US Bancorp had extensive investments in healthcare and thatchoosing not to provide a service to a competitor is actionable under antitrust law.304. Kristen Strong warned Medical Supply Not To Contact Anyone At US Bank And Said If MedicalSupply filed an action against US Bancorp NA, she would send a letter to the judge in advance of heranswer to our complaint saying we had ex parte communications.305. Medical Supply stated that it had not had any communications with US Bank employees sincereceiving her reply on Friday 10/18/02. However, Medical Supply was an account holder at US Bank andwould continue to have communications with US Bank regarding its other bank business.306. Medical Supply reminded her that US Bancorp had extensive investments in healthcaredistributors and that choosing not to provide a service to a competitor is actionable under antitrust law.307. Medical Supply contacted an attorney, familiar with the healthcare supply chain research anddevelopment done by Samuel Lipari at the law firm of Shook Hardy and Bacon and asked if his firm couldact as escrow agent for accounts to be set up in US Bank. He said the bank is better prepared to provideescrow services, fearing the liabilities and risks for an escrow agent where the USA PATRIOT Act hadbeen invoked and declined to act as escrow agent.308. On Thursday 10/24/02 Medical Supply filed for urgent injunctive relief against US BANCORPNA, its subsidiaries and named employees. Medical Supply counsel contacted US Bank counsel KristinStrong to clarify the clerk of the court’s questioning of service and to attempt to schedule a hearing. Ms.Strong said she would call the following morning Friday 10/25/02 to answer the question about service.She did not call and took the day off. Medical Supply counsel called her on Monday morning 10/28/02 atwhich time she said the case had been transferred to outside counsel and gave the phone number to MedicalSupply.6008-3187 Medical Supply Chain vs. Neoforma Volume XXII 8765

309. On or about 10/28/02 Medical Supply contacted US Bancorp’s retained counsel and explained thatthere were questions about service and that Medical Supply was seeking to schedule a hearing that week forits requested relief to stop the harm it was suffering and to avoid a terminal outcome for the company. USBancorp’s counsel said he had to travel and was unsure of his schedule but by the next day he might knowof a time he could make a hearing. Without hearing from the opposing counsel, Medical Supply becameconcerned and sent an email on or about 10/29/02 suggesting portions of the injunctive relief it seemedlikely the two parties could agree on and explaining the harm it was suffering and what delaying the reliefbeyond critical dates would inflict on Medical Supply, its associates and customers.4. The Defendants’ Acceptance of Liability For Medical Supply’s Business Plan Damages310. The email explained the losses as follows: the damages of failing to receive the $350,000 to$450,000 it depended on November 1st and the resulting effects of that delay on its projected financialsincluding lost profit of $51,795,005.00, lost increase in average valuation of $155,385,015.00, Candidatelost revenue of $15,499,788.00.311. The email explained that these injuries would be far greater if a December 1st deadline is missed.However, if the company does not recover from US Bank’s denial of the escrow accounts the total thirdyear losses of the company would be as follows: lost profits $51,795,005.00, loss of increased companyavg. valuation of $155,385,015.00, Candidate lost revenue of $15,499,788.00 and Customer losses of$697,486,200.00.312. On or about Wednesday 10/30/02, US Bancorp’s counsel sent a letter to the court dismissive ofMedical Supply’s complaint and stating that it would oppose all requested relief.313. On or about Thursday 10/31/02, Medical Supply called US Bancorp’s counsel explaining thenecessity of the relief sought and specifically the relief requested under paragraph 66 seeking to stop USBank from reporting negative information about Medical Supply under the USA PATRIOT Act.314. US Bancorp’s counsel reiterated his belief Medical Supply needed to find another bank and thatno liability existed. Medical Supply’s counsel explained that Samuel Lipari will not risk a hundred milliondollar company that requires high level banking services to future damage from a secret USA PATRIOTAct report that has misinformation in it and would create a black mark preventing them from ever beingable to do any business.6108-3187 Medical Supply Chain vs. Neoforma Volume XXII 8766

315. US Bancorp’s counsel said it would not agree to even just the relief sought in paragraph 66.Medical Supply asked US Bancorp’s counsel if his firm would act as an escrow agent for accounts to bedeposited in US Bank, since Shook Hardy and Bacon had declined to do so. US Bancorp’s counsel refusedto do so stating that US Bank did not owe any duty to Medical Supply.5. The Defendants’ Theft of Medical Supply’s Intellectual Property316. Realizing there was no immediate solution to this matter, and the fact that a previous businessmodel pricing system developed by Samuel Lipari in 1995 was appropriated by HSCA, Medecon andCardinal Owen Healthcare through exploitation of a confidential business relationship and then taken laterby many other GPOs.317. On or about 11/6/02 Samuel Lipari visited US Bank, Noland road branch to retrieve thedocuments left by him following the meeting with Doug Lewis on 10/10/02. Doug Lewis gave thedocuments back to Samuel Lipari.318. Samuel Lipari specifically ask if the documents were copied or faxed and Doug Lewis said he putall of the information in his analysis and Samuel Lipari left the bank. Upon returning to Medical Supply’soffice Samuel Lipari Inspected the documents and found that the binders had been separated and copies orfaxes had been made of the associate program and the business plan documents.319. There were also tractor marks from a copy or fax machine on the back of the entire associateprogram and the business plan pages.320. The documents relating to the escrow agreement associate program application, and certificationcontract were not faxed or copied. There were no marks on the back of these documents.321. Medical Supply became fearful of where these documents were sent and who has reviewed them.The documents that were copied or faxed contain all confidential details to the business, business model,management team, investors, industry experts, advisors, business practices, market strategies, revenuemodel, service structure, formula, algorithms and financials including 5 year details, 5 year condensed andbreak even analysis.322. Samuel Lipari became fearful this information would fall into the wrong hands further blocking oreliminating entry to market.6. The Effects of the Plan To Financially Destroy Medical Supply6208-3187 Medical Supply Chain vs. Neoforma Volume XXII 8767

323. On or about 11/7/02 Samuel Lipari received a complimentary D&B report dated 10/31/02 onMedical Supply. The report indicated Medical Supply started in 2000 and has a clear credit history and astrong financial condition.324. On November 18, 2002, Medical Supply obtained a TRO hearing on its request for preliminaryinjunctive relief. Medical Supply sought urgent preliminary injunctive relief from trade secretmisappropriation and urgent preliminary injunctive relief from USA PATRIOT Act reporting.325. Medical Supply had second preliminary injunction hearing at12:00 p.m. on December 12, 2002.Medical Supply again sought urgent preliminary injunctive relief from trade secret misappropriation andurgent preliminary injunctive relief from USA PATRIOT Act reporting, but was denied.326. On December 17, 2002 Medical Supply filed a notice of interlocutory appeal to The Tenth CircuitCourt of Appeals.327. On June 16, 2003, the Kansas District Court dismissed Medical Supply’s action for injunctive anddeclaratory relief.328. After losing a motion for new trial, Medical Supply filed a timely notice for appeal on November21, 2003.329. On January 7 th , 2004, the Tenth Circuit dismissed the interlocutory appeal as moot due to thesuperceding appeal of the action’s dismissal.7. US Bancorp, US Bank, Andrew Cesere And Jerry Grundhoffer Realize Because Of TheProspective Injunctive Relief Action Their Antirust Liability To Medical Supply And TheRequirement At Law That They Must Divest Piper Jaffray At A $750 Million Dollar Loss330. Jerry Grundhoffer, the CEO of US Bancorp NA realized that his acquisition of Piper Jaffray in ascheme to exploit US Bank essential facilities as the eight largest national bank in America and use itsdeposits as a guarantor of capital in underwriting initial public offerings (IPO’s) of healthcare technologyand supply chain companies and to support those IPO’s with Piper Jaffray’s essential facility of providinginvestor research had made US Bank and US Bancorp NA liable under antitrust law for its injury toMedical Supply.331. Jerry Grundhoffer attempted to sell Piper Jaffray first to Royal Bank of Canada and then to A.G.Edwards & Sons, Inc., seeking a purchase price $100 million dollars less than US Bancorp had acquiredPiper Jaffray for.6308-3187 Medical Supply Chain vs. Neoforma Volume XXII 8768

332. In December of 2002 Samuel Lipari, CEO of Medical Supply communicated with Gordon M.Nixon and Irving Weiser of the Royal Bank of Canada (RBC) explaining Medical Supply’s action againstPiper Jaffray and offering to work with RBC if they decided to purchase Piper Jaffray in the hope that RBCwould “prevent similar conflicts of interest from ever occurring and to ensure healthcare companysecurities are not marketed on the basis of illicit anticompetitive contracting advantages.”333. In December 2002 Samuel Lipari, CEO of Medical Supply contacted Robert L. Bagby andDouglas L. Kelly of A.G. Edwards & Sons, Inc. about the action against Piper Jaffray offering to work toresolve any claims:“We believe we will prevail in our antitrust and contract related claims. The portion of liability forthese staggering damages that will be apportioned to US Bancorp Piper Jaffray INC causes us greatconcern for your company should it acquire Piper Jaffray. A.G. Edwards has responsible corporategovernance standards in place and has long served its customers without reproach. I will be happy towork with you and your counsel to resolve Piper Jaffray’s involvement in these anticompetitiveacts.”334. Jerry Grundhoffer sought and obtained an agreement with Piper Jaffray’s C level officerssubrogating US Bancorp NA and US Bank’s future antitrust judgment liability to Medical Supply fromJerry Grundhoffer to Piper Jaffray.335. Having no other alternative and realizing that liability to Medical Supply in antitrust continued toaccumulate as long as the two companies were commonly owned, US Bancorp announced on February19 th , 2003 that Piper Jaffray was being spun off or separated from US Bancorp NA.336. On December 31 st 2003, US Bancorp announced the completion of its spin off of Piper Jaffray,trading on the NYSE as an independent public offering January 2, 2004.8. US Bancorp, US Bank, Andrew Cesere And Jerry Grundhoffer Realize Because Of TheProspective Injunctive Relief Action Their Antirust Liability To Medical Supply And TheRequirement At Law That They Must Divest Piper Jaffray At A $750 Million Dollar Loss337. GE And GHX, LLC acted against their own short term profit interest and in knowing coordinationwith Neoforma, Inc. in an intentional effort to deprive Medical Supply in June 2003 of its contracted orbargained for capitalization of $350,000.00 to enter the market for hospital supplies, just as Neoforma, Inc.(Unknown Healthcare Entity) and US Bancorp, et al had through combination or conspiracy deprivedMedical Supply of another $350,000.00 obtained through the contract for escrow accounts in November2002.6408-3187 Medical Supply Chain vs. Neoforma Volume XXII 8769

338. The Defendants Foreclosure of Medical Supply’s Attempt Following Attempt To Enter Into theMarket For Hospital Supplies and Hospital Supplies in E-Commerce.339. While seeking a new corporate headquarters for Medical Supply in May 2002 Mr. Liparidiscovered an unused building in the same Blue Springs suburb of Kansas City, Missouri. The building hadbeen purpose built to house information technology workers and had the infra structure including adequatecommunications connections and an electric plant for Medical Supply’s servers.340. GE Transportation acquired the building and its transferable lease when it bought the railroadsignal company Harmon, Inc. and got rid of its employees. GE Transportation sought to escape the $5.4million dollar liability of the remaining 7 year lease because of the $50,000.00 to $60,000.00 dollar amonth payments and insurance on the building that had not been occupied for over 8 months with no sublease offers. Previously the building had been under utilized while GE reduced Harmon’s staff. The highmonthly cost was making the subsidiary fail to meet GE’s economic performance requirements and hurtingthe conglomerate’s bottom line and share price.341. On or about June 1st, 2002, Samuel Lipari, CEO of Medical Supply Chain, Inc. contacted theleasing agent Cohen & Essrey Property Management regarding a building located at 1600 N.E. CoronadoDrive in Blue Springs, MO. The leasing agent indicated the building was already leased but that the lesseecould and would like to sub-lease the building. The building was not occupied so Mr. Lipari made a verbaloffer to sub-lease a portion of the building. The leasing agent declined his offer indicating the existinglessee would not accept anything less than leasing the entire building.342. On or about April 1st, 2003 Mr. Lipari contacted the new leasing agent (B.A. Karbank &Company) in the event the new agent had different instructions regarding a sub-lease of the propertylocated at 1600 N.E. Coronado Drive in Blue Springs, MO. The new leasing agent told him that GE was thelessee seeking to sub-lease the building due to their vacating the building after GE Transportation boughtout of Harmon Industries. The building was still not occupied so again Mr. Lipari made a verbal offer tolease a portion of the building. The leasing agent declined his offer indicating GE Corporate Propertieswould not accept anything less than leasing the entire building.343. On or about April 7 th Mr. Lipari contacted GE and spoke with the GE property manager, GeorgeFrickie regarding Medical Supply’s interest in sub-leasing the building. George Frickie indicated again that6508-3187 Medical Supply Chain vs. Neoforma Volume XXII 8770

GE would not be interested in sub-leasing a portion of the building but rather would be interested in leasingthe entire building. Mr. Lipari requested the name of the owners and Mr. Frickie gave him the name andnumber of Barry Price with Cherokee Properties L.L.C. Mr. Lipari contacted Mr. Price, he was referred toScott Asner who also had a substantial interest in the building. While speaking with Mr. Asner he providedMr. Lipari the background and current details on the building lease with GE, terms and a price to purchasethe building. The lease was transferable and GE was still obligated for 7-years out of a 10-year lease. Mr.Asner agreed to sell Medical Supply the building for the remaining balance of the GE 7-year lease ($5.4million) and provided Mr. Lipari with a letter of intent to sell the building to Medical Supply.344. On or about April 15th, Mr. Lipari contacted Mr. Frickie with GE Commercial Properties andindicated that he had an interest in purchasing the building. Mr. Lipari ask Mr. Frickie if GE had an interestin buying out the remainder of their lease so that Medical Supply could occupy the building following thepurchase. Mr. Frickie offered GE’s lease payments for the remainder of 2003 ($350,000) as a buy out offer.345. On or about May 1st, 2003 Mr. Lipari tentatively contacted several local Banks, knowing that USBank had threatened his company with a malicious USA PATRIOT Act report to keep Medical Supplyfrom entering the hospital supply market where US bank was affiliated with Neoforma, an existingelectronic marketplace for healthcare supplies. Mr. Lipari knew Medical Supply could not get a loanbecause of the threat and extortion, but knew he needed input from bankers familiar with the commercialreal estate market in Blue Springs. Mr. Lipari felt Medical Supply could form a holding company to obtainthe property without US Bank realizing he could enter the hospital supply market. Mr. Lipari spoke withAllen Lefko President of Grain Valley Bank, Pat Campbell branch manager of Gold’s Bank and RandyCastle Senior Vice-President of Jacomo Bank. Each of the banks indicated a willingness to provide themortgage because they felt the property was worth far more than the price offered by Cherokee PropertiesL.L.C., but the mortgage was too large for the regulatory size of their bank and they each suggested anational bank as an alternative. Due to US Bank’s extortion and racketeering, including the pretext andvery real threat of a malicious USA PATRIOT Act suspicious activity report (SAR) against MedicalSupply since Mr. Lipari had tried to enter the hospital supply market in October of 2002, Mr. Lipari knewhe was unable to solicit a national bank for the real estate loan.6608-3187 Medical Supply Chain vs. Neoforma Volume XXII 8771

346. On or about May 7th, Medical Supply contracted a financial consultant (Joan Mark) for advice onhow to put a mortgage together to buy the building which has a 7-year revenue stream from GE in theamount of $5.4 million, the identical amount offered to purchase the building and for which MedicalSupply had a letter of intent from the owner Cherokee Properties L.L.C. Mrs. Mark suggested Mr. Liparipropose a mortgage arrangement directly to George Frickie with GE Corporate. Mrs. Mark explained how apurchase of the $10 Million dollar property for $5.4 Million was a great deal for any mortgage lender. Mrs.Mark also explained if GE provided a $5.4 million dollar mortgage on a $10 million dollar property andeliminated a $5.4 million dollar lease obligation that GE would directly benefit from a $15 million dollarswing to their balance sheet.347. Without realizing the existence of a combination and conspiracy between the Defendants,including the existence of a secret market allocating and tying agreement between Neoforma, Inc. and G.Eand Premier’s electronic market place, GHX, LLC. Samuel Lipari prepared an offer on the building for GETransportation.348. The afternoon of May 15th, Mr. Frickie responded, leaving a taped voicemail message and statinghe had spoke with the business leaders at GE corporate and that they will accept Medical Supply’sproposal.May 15th 2003-George Frickie“Bret, George Frickie, ah…. I know I sent you an email saying that my counsel way out ah…and Ifollowed up with another email but I spoke to the business leaders and we will accept thattransaction ah… let’s start the paper work ah… if you want to do some drafting of lease terminationor if you would like us to do that, give me a holler 203-431-4452.”349. The second e-mail Mr. Frickie referenced on the phone conversation explicitly stated that GEwould accept Medical Supply’s proposal and initialed the written acceptance in addition to the electronicsignature file for the e-mail:From: Fricke, George (CORP) To: Bret Landrith Cc: Newell, Andrew (TRANS) ; Payne, Robert J(TRANS) ; Davis, Tom L (TRANS) ; Jakaitis, Gary (CORP)Sent: Thursday, May 15, 2003 6:05 PMSubject: RE: Lease buyout GE/Harmon building Bret, I would like to confirm our telephoneconversation in that GE will accept your proposal to terminate the existing Lease. Robert PayneGE Counsel will start working on the document. He is out of the office until Monday 19th. GCF350. On or about May 20th, 2003, Medical Supply was given a walk through of the property toinventory the buildings furniture and fixtures and discuss building maintenance and operational procedures.Tom Davis, the property manager for GE Transportation in Blue Springs and John Phillips, the GE6708-3187 Medical Supply Chain vs. Neoforma Volume XXII 8772

Transportation building maintenance engineer provided the three-hour walk through in addition to thebuilding maintenance and operational procedures. John Philips also provided the blue prints of the buildingand allowed me to make copies. Mr. Lipari returned the original blue prints after he made copies. Theyboth stated they were being dismissed from employment by GE since they would no longer be necessary.351. On May 22nd, 2003 Mr. Lipari spoke with Doug McKay with GE Capital who had called earlierthat week with regard to the mortgage outlined in Medical Supply’s proposal. Doug asked that Mr. Liparisend our company information regarding the mortgage. Mr. Lipari indicated that he could meet him thefollowing Tuesday because Medical Supply had a loan package for him that included its financials, theproposal that George Frickie and GE’s business leaders accepted, the letter of intent from the owners andour Dunn &Bradstreet report showing Medical Supply’s good credit and strong financial condition. Mr.Lipari gave the information to McKay and McKay indicated he needed to speak with GE Transportation tosee how they wanted to handle the terms of the accepted proposal.352. On or about June 2nd, 2003 Mr. Lipari called McKay to see how they were doing on closing andMcKay indicated that the person he needed to speak with was at corporate and that he needed to speak withhim before moving forward.353. As the June 15, 2003 closing date approached, medical Supply had not received any definitiveclosing date so Medical Supply’s corporate counsel called and sent George Frickie and email stating that adelay in closing would not effect the lease buyout of $350,000. Medical Supply’s counsel later again calledMr. Frickie when he receive no response and Mr. Frickie became extremely angry and hung up the phone.354. Medical Supply then proceeded to speak with GE’s counsel Kate O’Leary to determine if thecontract had been repudiated. Supporting statutes and the antitrust basis and damages implications wereexplained to Ms O’Leary.355. Medical Supply gave GE a deadline to June 10th to clarify whether there had been a repudiation.Mrs. O’Leary later faxed a letter on the 10th requesting that Medical Supply not speak to anyone at GE andthat any correspondence relating to this matter be directly to her. Medical Supply then emailed a letterstating that if no earnest money were deposited to indicate the contract was not being repudiated, MedicalSupply would file on June 16th for antitrust and breach of contract.6808-3187 Medical Supply Chain vs. Neoforma Volume XXII 8773

356. George Fricke, property manager for The General Electric Company who Medical Supply hadbeen told by Fricke and his agents, was the authority for the building at 1600 NE Coronado Dr. telephonedMedical Supply Chain’s Missouri headquarters and placed a message on its answering machine stating hehad been instructed by “business leaders” to accept Medical Supply’s proposal and he was calling to do so.Then, George Fricke sent a written acceptance via e-mail with his initials added a signature at the end ofthe email message. No terms were disputed and the acceptance confirmed The General Electric Companywould make its subsidiary GE Transportation LLC. pay $350,000 for the buy out of the lease and its GECapital subsidiary provide the $6.4 million dollar mortgage and closing at 5.4% for twenty years with afirst year moratorium on payments. In diversity actions, the Court applies the substantive law, includingchoice of law rules, that Kansas state courts would apply. See Moore v. Subaru of Am., 891 F.2d 1445,1448 (10th Cir. 1989). Kansas courts apply the doctrine of lex loci contractus, which requires that the Courtinterpret the contract according to the law of the state in which the parties performed the last act necessaryto form the contract. See Missouri Pac. R.R. Co. v. Kansas Gas and Elec. Co., 862 F.2d 796, 798 n.1 (10thCir. 1988) (citing Simms v. Metropolitan Life Ins. Co., 9 Kan. App. 2d 640, 642-43, 685 P.2d 321 (1984)).357. George Fricke’s signed written acceptance referenced the proposal he had received from MedicalSupply earlier that day. The set of documents then became an bilateral contract completed with the last actexchanging mutual promises (D.L. Peoples Group, Inc. v. Hawley, — So.2d — (2002 WL 63351, Ct. App.,Fla., 2002) enforceable for the sale of the lease interest and the benefit of the bargain obtained by MedicalSupply under its clear and complete terms meeting the writing requirements of a real estate purchasecontract in Missouri and the writing and definiteness requirement of a credit agreement under Missouristatute RMS 432.045.2 .358. The formation of an enforceable contract in a set of documents created in correspondence is wellsettled See Estate of Younge v. Huysmans, 127 N.H. 461, 465-66, 506 A.2d 282, 284-85 (1965). Sincestate law requires a writing, the e-mail acceptance and signature of George Fricke is valid and enforceableunder 15 USC §7001, the federal Electronic Signatures in Global and National Commerce Act, widelyknown as "E-SIGN." Section 101(a) of E-SIGN states that "(1) a signature, contract, or other recordrelating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in6908-3187 Medical Supply Chain vs. Neoforma Volume XXII 8774