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PharmacyChecker.com v. Nat'l Ass'n of Bds. of Pharmacy

Lanham Act Counterclaim Dismissed; Defendant Is Not a 'Market Participant'

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OPINION & ORDER PharmacyChecker.com (“PCC”) brings this Action against the National Association of Boards of Pharmacy (“NABP”), Alliance for Safe Online Pharmacies (“ASOP”), Center for Safe Internet Pharmacies Ltd. (“CSIP”), and Partnership for Safe Medicines (“PSM”; collectively, “Defendants”) alleging that Defendants unlawfully conspired to restrain trade in violation of §1 of the Sherman Act, 15 U.S.C. §1, and that NABP falsely advertised or promoted in violation of §43(a) of the Lanham Act, 15 U.S.C. §1125. (See generally Am. Compl. (Dkt. No. 82).)1 NABP brings counterclaims against PCC for violations of §43(a) of the Lanham Act; §§349 and 350 of the New York General Business Law (“GBL”), N.Y. G.B.L. §§349, 350; and the D.C. Consumer Protection Procedures Act (“CPPA”), D.C. CODE §28-3904. (See generally NABP’s Answer & Counterclaims (Dkt. No. 148).)2 Before the Court is PCC’s Motion To Dismiss NABP’s Counterclaims pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (See Not. of Mot. (Dkt. No. 190).) For the following reasons, PCC’s Motion is granted. I. Background A. Factual Background The following facts are drawn from the Counterclaims and are assumed to be true for the purposes of resolving the instant Motion. See Div. 1181 Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94 (2d Cir. 2021) (per curiam). 1. Background to the Parties NABP is a §501(c)(3) non-profit organization organized under the corporate laws of Kentucky and with its principal place of business in Illinois. (See Counterclaims

14, 21.) NABP was founded in 1904 to support and work with state and jurisdictional boards of pharmacy to protect the public health; its membership consists of all 50 state boards of pharmacy in addition to the boards of pharmacy in the District of Columbia, Guam, Puerto Rico, the U.S. Virgin Islands, the Bahamas, and all 10 Canadian provinces. (See id.

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