Dear Colleague,
This week saw frigid temperatures for much of the country, and especially the Midwest. St. Louis-based Express Scripts experienced icy conditions with a new court ruling that allowed a class action lawsuit alleging anti-competitive behavior to continue in Washington state. Express Scripts was also given the cold shoulder by a judge in its hometown, who rejected its bid for a preliminary injunction in its case challenging the constitutionality of the Federal Trade Commission.
In my last Executive Update column, I wrote about litigation being NCPA's third leg of the stool, along with advocacy and marketplace solutions. Last week, two courts issued orders in the Osterhaus class action cases against ESI and CVS Caremark that will have a major impact on NCPA's litigation efforts.
In the ESI ruling, the judge denied ESI's attempt to move the case to its home turf in St. Louis. ESI's contracts are some of the most aggressive at requiring pharmacies with legal complaints to hash it out in their backyard. Sort of a home field advantage built into their take-it-or-leave-it contracts. In fact, ESI argued that the whole case should be thrown out because ESI's contract terms govern the dispute. The judge disagreed and said Osterhaus' class action case alleging horizontal price fixing can continue and stay in the court in Seattle.
In another class action case, Osterhaus v. CVS Caremark, there were also some positive results. This case is about trying to recapture pharmacy DIR fees that were stolen from pharmacies. On the plus side, the judge found three aspects of the Caremark arbitration clauses unconscionable. But on the downside, he ruled that plaintiffs must arbitrate their claims.
This is where NCPA's third leg of the stool comes in. Knowing the difficulties of sustaining a class action against the PBMs' take-it-or-leave-it contracts, NCPA set up the TRUST LLC, which enables pharmacies to assign their arbitration claims to the TRUST to pursue those claims against the likes of CVS. Thousands of pharmacy locations have done so already, and in the coming weeks, the TRUST LLC will be noticing all those claims against CVS, and separately, claims against Prime.
Litigation moves slowly, so when there's progress it's notable. As a reminder, the Osterhaus class action lawsuits were brought initially by Matt Osterhaus, a longtime Iowa pharmacy owner and NCPA member who has been active in the profession his entire career. If you are a pharmacy owner, you are automatically represented in the remaining class action lawsuits. No action on your part required. However, if you want to participate in the CVS or Prime arbitrations, you should consider assigning your claims to the TRUST LLC. You can learn more at www.fightpbms.com.
The window for this opportunity is closing fast, so please check out www.fightpbms.com and make a decision soon.
Next week there will be a webinar for TRUST members to go into more detail and share next steps. If you're a TRUST member, look in your email for the webinar information.
Sincerely,
B. Douglas Hoey, Pharmacist, MBA
NCPA CEO
