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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,

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.

CIVIL ACTION

No. 1:14-cv-11689-RWZ

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.

1 Certain of the original named defendants, sued in their official capacities, no longer hold those

offices. The new officeholders have been substituted.

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

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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 decision- making 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.

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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

Dated: February 17, 2015 Boston, MA 02108

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

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