This has been a big month for independent pharmacy in the fight against PBMs. We have the strategy. We have ammunition. Now all we need is you.
Let me catch you up, first.
Attorneys presented at the 2023 NCPA Annual Convention early last week where they explained the ins and outs of a class action lawsuit filed against vertically consolidated CVS Health, Caremark, and Aetna, drawing enthusiastic applause to say the least. Katie Funk, an attorney with Baker Donelson, John Roberti, an attorney with Cohen & Gresser, and Josh Davis, an attorney with Berger Montague PC joined NCPA General Counsel Matthew Seiler to talk about the lawsuit filed by NCPA member Matt Osterhaus in September. It's a lawsuit that aims to recoup for independent pharmacies millions of dollars in DIR fees, and it claims that Caremark—the largest PBM in the country—has been assessing pharmacy DIR fees in violation of federal antitrust laws and state laws governing contracts. The lawsuit also challenges CVS' agreements to arbitrate claims as being unfair and unenforceable. (There are precedents, too.)
So, what does this have to do with you?
Everything—but not in a direct way now. Because it's a class action suit, there is no action for you to take. You are already in the class. We are in the early days of what will likely be a long battle.
Since it will be such a long battle, the class action lawsuit is just one aspect of the strategy to fight back against oppressive PBM business practices. So, NCPA set up TRUST LLC, a legal entity that will potentially arbitrate or litigate on behalf of individual pharmacies, most of which could never afford to do so on their own. PBMs have weaponized their nearly unlimited resources—money, time, and attorneys—and they have set up dispute-resolution processes that make gaining access to justice next to impossible. TRUST LLC allows individual pharmacies to pool their claims and hire the best attorneys in the country to represent them. In other words, TRUST LLC is an avenue for you to push forward toward a fair and transparent future.
You can read about it at www.fightPBMs.com, but the broad strokes are these: by "assigning" your right to sue or arbitrate to TRUST LLC to recoup DIR fees, you will allow TRUST LLC to engage attorneys on your behalf.
You might have to spend time assisting in the litigation, but there will be no out of pocket spending for you. When and if a financial award is granted or a settlement is reached, the fees and costs of the attorneys' fees will come out of the recovered money, and the remaining money will go to the prevailing pharmacy. This is a chance to recoup some of the pharmacy DIR fees that your pharmacy has had to write off as lost forever!
If you're as excited as I am about this, I invite you to participate in this aspect of the strategy now. NCPA member locations may join the trust for free today, while non-member locations will cost $1,000 per store to join.
When I say this has been a big month, I don't mean it's going to be over next month. I really mean this has been a big start for independent pharmacy. The coming year (and years) will be pivotal for our entire profession. Opportunities like this rarely come along. Let's take this opportunity to make a difference for our pharmacies and our patients.
To learn more about TRUST LLC, please visit www.fightPBMs.com.
B. Douglas Hoey, Pharmacist, MBA