Case 1:14-cv-11689-RWZ Document 93 Filed 02/17/15 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ZOGENIX, INC.,
Plaintiff,
v.
CHARLES D. BAKER, in his official capacity as
the GOVERNOR OF MASSACHUSETTS,1
MONICA BHAREL, MD, MPH, in her official
capacity as DEPARTMENT OF PUBLIC HEALTH
COMMISSIONER,
CANDACE LAPIDUS SLOANE, M.D., et al., in
their official capacities as members of the
MASSACHUSETTS BOARD OF
REGISTRATION IN MEDICINE,

CIVIL ACTION
No. 1:14-cv-11689-RWZ

KAREN M. RYLE, MS, R.PH, et al., in their

official capacities as members of the
MASSACHUSETTS BOARD OF
REGISTRATION IN PHARMACY, and
DIPU PATEL-JUNANKAR, PA-C, et al., in their
official capacities as members of the
MASSACHUSETTS BOARD OF
REGISTRATION OF PHYSICIAN ASSISTANTS,
Defendants.

DEFENDANTS NOTICE OF SUPPLEMENTAL AUTHORITY

Defendants hereby notify the Court and Plaintiff that, on February 13, 2015, the United
States Court of Appeals for the First Circuit issued a decision in Caesars Massachusetts
Management Company, LLC, et al. v. Crosby, et al., No. 14-1681, that provides supplemental
authority for Defendants pending motion to dismiss Zogenixs third amended complaint (Doc.

Certain of the original named defendants, sued in their official capacities, no longer hold those
offices. The new officeholders have been substituted.
1

Case 1:14-cv-11689-RWZ Document 93 Filed 02/17/15 Page 2 of 3

No. 81). (A copy of the Caesars decision is attached hereto as Exhibit 1 for the Courts
convenience.) In Caesars, The First Circuit affirmed dismissal of plaintiffs complaint for
failure to state a claim upon which relief could be granted on two pivotal grounds, including its
determination that a class-of-one equal protection claim did not lie in the face of state law
authorizing the exercise of highly discretionary judgment . . . . Exhibit 1 hereto at 3. Relying on
Enquist v. Oregon Dept of Agric., 553 U.S. 591 (2008), the First Circuit noted that [a]lthough
Enquists specific subject was public employment, its reasoning extends beyond its particular
facts, and we agree with those federal courts that have found the case applicable beyond
government staffing. Exhibit 1 hereto at 17. The court explained:
The scope of the Enquist rationale, we think, is expressed in the Supreme Courts
explanation that public hiring for at-will employment is an example of those
forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments . . . [in
which] treating like individuals differently is an accepted consequence of the
discretion granted. 553 U.S. at 603. The price of such discretion as is
considered reasonable at the systemic level is thus the absence of a crucial
element of Olechs class-of-one cause of action, the existence of a clear
standard against which departures, even for a single plaintiff, could be readily
assessed. Id. at 602.
Id. at 18.
This supplemental authority supports Defendants reliance on Enquist in support
of dismissal of Zogenixs class-of-one equal protection claim.

Case 1:14-cv-11689-RWZ Document 93 Filed 02/17/15 Page 3 of 3

Respectfully submitted,
DEFENDANTS
By their counsel,
MAURA HEALEY
ATTORNEY GENERAL
/s/ Jo Ann Shotwell Kaplan
Jo Ann Shotwell Kaplan (BBO #459800)
Eric Gold (BBO #660393)
Anne McLaughlin (BBO #666081)
Julia Kobick (BBO #680194)
Assistant Attorneys General
One Ashburton Place, 20th Floor
Boston, MA 02108

Dated: February 17, 2015

Certificate of Service
The undersigned counsel hereby certifies, this 17th day of February 2015, that this
document was filed through the Electronic Case Filing (ECF) system and thus copies will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing
(NEF); paper copies will be sent to any non-registered parties so indicated on the NEF.
/s/ Jo Ann Shotwell Kaplan
Jo Ann Shotwell Kaplan