Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc.

305 F. Supp. 3d 337
CourtDistrict Court, D. Rhode Island
DecidedMarch 31, 2018
DocketC.A. No. 16–46 WES; C.A. No. 16–447 WES
StatusPublished
Cited by6 cases

This text of 305 F. Supp. 3d 337 (Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheet Metal Workers Local No. 20 Welfare & Benefit Fund v. CVS Pharmacy, Inc., 305 F. Supp. 3d 337 (D.R.I. 2018).

Opinion

William E. Smith, Chief Judge *340Presently before the Court is Plaintiffs' Motion for Leave to File First Amended Complaint (ECF No. 56), in which they ask permission to update their story about alleged fraud spearheaded by Defendant CVS Pharmacy, Inc., ("CVS"). In particular, Plaintiffs would like to revise their complaint to comport with information they learned in discovery, namely, that Pharmacy Benefit Managers ("PBMs"), who facilitated generic-drug purchases between Plaintiffs and CVS, were allegedly aware of and abetted CVS's fraud. But not only do Plaintiffs seek to amend their factual allegations; they also hope to add two claims under the Racketeer Influence and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 - 1968. For the reasons that follow, Plaintiffs' Motion is GRANTED.

I. Background1

Alleging negligent misrepresentation, unjust enrichment, and violations of state-consumer-protection acts, Plaintiffs had it in their original complaint that CVS overcharged them by collecting more for generic drugs than it was allowed under the National Council for Prescription Drug Program ("NCPDP").See Sheet Metal Workers Local No. 20 Welfare and Benefit Fund v. CVS Health Corp., 221 F.Supp.3d 227, 229-31 (D.R.I. 2016) (denying CVS's motion to dismiss). According to this complaint, a key component of CVS's fraud was its Health Savings Pass ("HSP") program, which CVS developed to compete with big-box retailers (e.g., Wal-Mart, Inc.) who had recently slashed prices on certain generic drugs. See id. at 229-30.

Instituted November 2008 and discontinued February 2016, the HSP program allowed individual cash-paying CVS customers to access discounted prices by paying an annual membership fee. (Pls.' Proposed First Am. Compl. ("PAC") 3, ECF No. 58-1). Though nominal, the fee paid substantial dividends. CVS saved large sums by purposefully structuring the HSP program to prevent Plaintiffs, and others similarly situated, from accessing the program's discounts while remaining (or so it thought) in compliance with NCPDP's requirement that CVS charge Plaintiffs no more than the general public, that is, no more than the "Usual and Customary" ("U & C") price for drugs. (Id. at 1-4, 43.) The thought was that because the HSP price was not available to cash customers, but only to HSP members, CVS was not required to offer that price to Plaintiffs, but could instead report the higher price paid by non-HSP-member cash customers as the U & C price.2 (Id. at 25.) This allowed CVS to retain cash customers without passing on the price cut to purchasers like Plaintiffs. (Id. at 20-24.)

Since filing its original complaint, Plaintiffs claim discovery has revealed a more complex scheme whereby CVS did not act alone, but rather enlisted the help of various *341other entities to develop and conceal the gambit described above to bilk Plaintiffs and others out of billions of dollars. (Id. at 31-43.) One of these entities was Caremark, LLC, ("Caremark"). Caremark helped CVS design the HSP program, and in particular, developed the nominal-membership-fee feature as a way to compete with the big-box stores for cash customers without offering similar savings to Plaintiffs. (Id. at 20-24). Caremark also administered the HSP program from its inception in 2008 to 2013, when Medical Security Card Company ("ScriptSave") took it over. (Id. at 26-27.) Both Caremark and ScriptSave recognized that the program allowed CVS to " 'protect' loyalty member price[s] from third parties." (Id. at 29.) But, anticipating that these third parties would consider such protection a bug, not a feature, of the program, they worked with CVS to keep it a secret. (Id. at 31.)

Plaintiffs also allege that four of the country's largest PBMs-Caremark, Express Scripts, Inc., OptumRx, Inc., and MedImpact Healthcare Systems, Inc.-were in on the scheme, too. (Id. at 31-43.) PBMs contract with health plans like Plaintiffs to reimburse pharmacies like CVS when a plan's members fill their prescriptions. (Id. at 4-5, 10.) PBMs ostensibly work on behalf of their health-plan clients to, among other things, negotiate low pharmacy drug prices. (Id. ) The interests of PBMs and health plans are not perfectly aligned, however. (See id. at 15-17.) Health plans want cheap drugs; PBMs want the difference between what they pay pharmacies for drugs and what they charge health plans for those drugs to be as large as possible. (Id. ) In other words, the difference between what PBMs pay and what they charge is their gain, but the health plans' loss. (See id. )

The PBMs allegedly increased this spread by deliberately hiding from health plans the fact that CVS was not reporting its HSP price as its U & C price. (Id. at 31.) Each PBM developed an internal policy interpreting definitions of U & C price in their respective contracts with CVS as excluding HSP prices. (Id. at 31-43.) Plaintiffs allege that this was no coincidence-that CVS prompted the PBMs to keep the ruse a secret, and that each PBM knew the others had agreed to do so. (Id. ) This assurance was paramount to the scheme, for if any one PBM had confessed, the health plans would have put a stop to it, insisting they pay no more than CVS's cash customers in accordance with their contracts with the PBMs. (Id. at 45.) Indeed, Plaintiffs say that, in a competitive market, such insistence would have been unnecessary, as one or more PBMs would have adopted HSP prices sua sponte in an effort to attract plan business. (Id. at 51-57.)

According to Plaintiffs, fraud operated here on more than a wink and a nod. Plaintiffs allege that it "was orchestrated out of the corporate headquarters of CVS, Caremark, each remaining PBM, and ScriptSave" and "required those headquarters to communicate directly and frequently by U.S. Mail and interstate wire facilities." (Id. at 60-61.) Plaintiffs aver that these parties "share[d] information regarding various cash discount programs, the structure of those programs, and whether they [were] reporting those prices as U & C prices." (Id. at 66.) For example, in a back-and-forth between CVS executives and executives at Indiana Carpenters Welfare Fund's PBM, Medco Health Solutions, Inc., (now owned by Express Scripts), Medco assured CVS that it would interpret its definition of U & C price-"the lowest net cash price a cash ... customer would have paid ... inclusive of all applicable discounts"-as excluding CVS's HSP price, even though Medco had previously determined that it would consider Wal-Mart, *342Inc.'s discounted price for generics as its U & C price. (Id.

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Bluebook (online)
305 F. Supp. 3d 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheet-metal-workers-local-no-20-welfare-benefit-fund-v-cvs-pharmacy-rid-2018.