CVS Caremark and pharmacy benefit managers win summary judgment in group boycott antitrust litigation
Clients CVS Caremark Corporation
Judge David Folsom, United States District Court for the Eastern District of Texas, Texarkana, granted summary judgment in favor of Jones Day client Caremark and its co-defendants in a group boycott case arising under Sections 1 and 2 of the Sherman Act and state law. The action was brought by Rx.com, an internet pharmacy, against three major pharmacy benefit managers (PBMs) in the United States. Plaintiff challenged its denial of access to the retail networks of the PBMs and claimed that defendants conspired to destroy its internet-based pharmaceutical distribution business and attempted to monopolize network-based retail pharmaceutical distribution services in violation of the antitrust laws.
The summary judgment ruling addressed defendants' assertion that Rx.com's action was time-barred under the statute of limitations applicable to antitrust claims. Rx.com claimed that its earlier complaint to the FTC and the FTC's investigation and denial of access to defendants' PBM retail networks did not put it on notice of the potential antitrust claim it would have had against defendants. In ruling for defendants, the Court found that plaintiff, had it exercised proper diligence, had enough information to have filed suit against defendants within the antitrust limitations period. The court also rejected as without foundation plaintiff's argument that defendants engaged in acts of fraudulent concealment such that the statute of limitations was tolled. On April 22, 2009, the United States Court of Appeals for the Fifth Circuit issued its opinion affirming the district court decision.
Rx.com, Inc. v. Medco Health Solutions, Inc., et al., No. 5-04-227-DF (E.D. Tx. 2008), aff'd, No. 08-40388 (5th Cir. Apr. 22, 2009)