Payback Time! Community Pharmacists Cheer Class Action Lawsuit Against PBMs to Recoup DIR Fees

BY NATIONAL COMMUNITY PHARMACISTS ASSOCIATION
Published 6:48 AM MDT, September 27, 2023

(GLOBE NEWSWIRE) -- The National Community Pharmacists Association loudly applauded a class action lawsuit filed against vertically consolidated CVS Health, Caremark, and Aetna that aims to recoup for independent pharmacies millions of dollars in what the lawyers say are wrongful back-end penalties for Medicare Part D prescriptions, otherwise known as pharmacy direct and indirect remuneration fees.

“It’s payback time,” said NCPA CEO B. Douglas Hoey. “Finally, community pharmacies have a chance to recover DIR fees that were unfairly taken. PBMs have been gaming the system for a long time, and it’s time to turn the tables.”

The lawsuit, announced today by the law firms Berger Montague PC and Cohen & Gresser LLP, claims that Caremark – the largest pharmacy benefit manager in the country and a subsidiary of Fortune 6 corporation CVS Health – has been assessing pharmacy DIR fees in violation of federal antitrust laws and state laws governing contracts. The lawsuit also challenges Caremark’s agreements to arbitrate claims as being unfair and unenforceable.

In 2021, an arbitrator awarded a judgment of $23 million to the AIDS Healthcare Foundation, finding that Caremark breached the covenant of good faith and fairness in implementing its DIR practices. A district court in Arizona confirmed the award in 2022.

In 2022, an arbitrator awarded a judgment of $2.1 million in wrongfully collected fees, plus an additional $1.5 million in attorneys and interest, because Caremark’s contract was unconscionable. A district court confirmed the award in 2023.

Despite these two awards, Caremark has done nothing to change its ways, other than to modify its dispute resolution processes to make it more expensive and more difficult for pharmacies to bring claims against them.

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