NCPA and several independents file amended claim against ESI-Medco

 PITTSBURGH — The National Community Pharmacists Association and a number of independent pharmacy entities on Monday refiled its complaint against Express Scripts concerning its acquisition of Medco, demanding either Express Scripts be compelled to "unwind their merger" or alternatively be required to divest assets acquired from Medco. The independent pharmacy plaintiffs are also suing for the cost of the suit as well as "such other relief as the Court may deem just and proper."

In late August, U.S. District judge Cathy Bissoon had dismissed many of the claims levied against Express Scripts by the National Association of Chain Drug Stores, NCPA and the other parties. The one claim not dismissed concerned Express Scripts' new dominance in the specialty pharmacy arena. However, the ruling left the door open for the plaintiffs to amend other claims.

The amended claim alleges the Express Scripts-Medco merger impedes the purchase of retail community pharmacy services — dispensing pharmaceuticals, educating patients on side effects and counseling patients on drug interactions — in state markets. Consequently, the merger also would impede ancillary pharmacy services, such as health screenings, immunizations, nutrition counseling and medication adherence counseling that many independents provide. The suit charges that should a pharmacy benefit manager significantly reduce reimbursement rates, independent pharmacies could not reasonably find a substitute buyer for their services in any given state. "If a hypothetical monopsonist (created by a merger or agreement between the parties) of PBM purchasing pharmacy services in a given state were to reduce reimbursement rates by a small, but significant amount for a nontransitory period of time, retail community pharmacies could not reasonably sell pharmacy services to PBMs operating exclusively in other states," the amended suit reads. "Thus, such a reimbursement decrease would be profitable to the hypothetical monopsonist."

"In addition to including amended claims, the complaint also includes a specialty claim, which is virtually unchanged and which has already survived a motion to dismiss," Kevin Schweers, NCPA VP public affairs, stated in an email late Tuesday night. "NCPA and the other plaintiffs believe that this merger poses such significant competitive problems for small business community pharmacies and the patients that they serve, that [the parties] felt compelled to further pursue the litigation."

The National Association of Chain Drug Stores and four independent pharmacies — Hometown Pharmacies, Klingensmith Drug, Kopp Drug and Thompson Pharmacy — that were all original filers no longer are plaintiffs in the amended suit.

"In response to the Court’s ruling in August, NACDS last night notified judge Cathy Bissoon that it is suspending at this time its participation in the lawsuit challenging the Express Scripts-Medco merger," noted Chris Krese, NACDS SVP marketing, communications and media relations, in an email to DSN. "Formally, NACDS filed a Notice of Voluntary Dismissal without Prejudice in the U.S. District Court for the Western District of Pennsylvania. With this filing, NACDS and member companies preserve their rights to file future claims," he continued. "NACDS will remain vigilant in evaluating the ramifications of the merger for patient care and for industry competitiveness, and will take any necessary actions to address them."

To read the amended complaint in its entirety, click here.