A Van Buren drugstore owner won’t appeal a federal judge’s ruling that allowed a supplier to cut off sales of controlled substances, leading to his business closing late last year, according to the store’s attorney.
Manes’ Pharmacy Inc. lost its case in March against AmerisourceBergen Drug Corp. of Conshohocken, Pennsylvania, when U.S. District Court Judge Timothy L. Brooks ruled in favor of the wholesale distributor’s request to dismiss the case before it even reached a jury.
Mark Manes, the owner of a pharmacy that operated as Super-Sav Drug #3 at 2215 Alma Highway for nearly 40 years, “does not have the funds to fight such a corporation,” said one of Manes’ attorneys, Spencer Vereen of the Fort Smith office of law firm Caddell Reynolds. “This is a small-town pharmacy; as a matter of fact, he went out of business because of their actions.”
AmerisourceBergen, now known as Cencora Inc., is a Fortune 10 company.
“One thing that is so concerning is there’s just such a substantial power difference between local pharmacies and these wholesale suppliers,” Vereen said.
In November 2022, AmerisourceBergen told Manes it was concerned about the drugstore’s sales of controlled substances, which could put both companies at risk for regulatory action, according to records filed in federal court in Fort Smith. The supplier’s “red flags” included Manes dispensing controlled substances for prescriptions from family or general practitioners, or both, and dispensing controlled substances that were prescribed by a dentist in large quantities, according to Brooks’ 11-page memorandum opinion and order.
Manes responded to the letter by saying the pharmacy would change its dispensing practices to comply with the concerns, the order said. But about a week later, AmerisourceBergen said Manes’ response didn’t appropriately address the company’s concerns. As a result, AmerisourceBergen would restrict its controlled substances sales to Manes, the order said.
Manes sued AmerisourceBergen over allegations that included breach of contract.
In a December 2023 deposition, Manes, 72, said that AmerisourceBergen’s decision to stop selling controlled substances resulted in a drop in income for the store.
He estimated that the customer base had been about 3,000 to 4,000 customers who had come in regularly to fill prescriptions. Manes said that he guessed that he lost about 250 customers as a result of AmerisourceBergen’s restrictions.
He started running out of some medications in a matter of weeks.
“There are lots of customers that I told I wasn’t able to order the [Schedule II controlled substances] anymore, and those were sent to other pharmacies,” Manes said at the deposition. A Schedule II drug is one that has high potential for abuse.
By June 2023, Manes was able to re-establish both generic and branded supplies for controlled substances, and a “few” customers came back.
AmerisourceBergen asked Brooks to rule in its favor before the case even reached a jury.
Brooks did. The contract between the two companies provides the supplier “with complete discretion on whether to sell controlled substances to Manes,” Brooks wrote in a March filing. “In other words, and simply put, the contract imposes no duty on [AmerisourceBergen] to sell controlled substances to Manes if it does not wish to do so.”
Cencora declined to comment on the case.
Vereen said that Manes was disappointed in the decision, but won’t appeal it. “He’s not a multimillion-dollar business that can go out and hire us to fight all the way up,” Vereen said.
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