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WASHINGTON — The ranks of retail pharmacy have diverged in the wake of a federal judge’s dismissal of most of the claims made in a lawsuit against the merger of Express Scripts Inc. and Medco Health Solutions Inc.
The National Community Pharmacists Association (NCPA) and five pharmacy operators filed an amended lawsuit against the Express Scripts-Medco merger earlier this month, but the National Association of Chain Drug Stores and four other participants in the original suit filed notices of voluntary dismissal without prejudice.
“With this filing, NACDS and member companies preserve their rights to file future claims if necessary,” says Chris Krese, senior vice president of marketing, communications and media relations for NACDS. “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.”
In addition to NACDS, four pharmacy operators, Klingensmith Drug, Kopp Drug, Hometown Pharmacies and Thompson Pharmacy, decided to voluntarily dismiss their claims.
However, NCPA as well as the five independent pharmacy operators opted to continue with the lawsuit and filed an amended complaint.
In a decision issued in late August, Judge Cathy Bissoon dismissed most of the claims that were made in the original antitrust lawsuit which was filed in March by NCPA, NACDS and the nine previously named pharmacy operators.
She rejected the plaintiffs’ claim that the merger of the two pharmacy benefits managers (PBMs) would have an anticompetitive impact on retail pharmacies in their role as purchasers and/or providers of prescription drugs and pharmacy services to consumers and large employers.
However, Bissoon did allow the plaintiffs’ claim that the combined entity would be able to use its market power to force specialty drug patients to use its own mail-order and in-house specialty pharmacies.
In its amended complaint that was filed on September 10 NCPA and the five independent pharmacies claim that the combined PBM will be able to lower the quality of prescription drug care by reducing its prescription drug reimbursements to retail pharmacies well below competitive levels and by forcing patients to use the PBM’s own proprietary mail-order and specialty pharmacies.
In addition, the complaint says that with reduced competition stemming from the merger, patient health care costs will escalate through increased PBM fees and higher prescription drug prices.
“These anticompetitive effects violate the antitrust laws and require that the merger be unwound, that ESI divest assets acquired from Medco to protect pharmacies and consumers, or that the court take such action as it sees fit to protect those pharmacies and consumers,” the amended suit claims.
