Independent Pharmacy Files Lawsuit Against CVS Health, Caremark, Aetna Based on DIR Fees

Ashley Gallagher, Associate Editor

The National Community Pharmacists Association said the action was sent into motion by wrongful penalties for Medicare Part D prescriptions, called pharmacy direct and indirect remuneration fees.

Osterhaus Pharmacy Inc has filed a class action lawsuit against CVS Health, Caremark, and Aetna, seeking damages for violating federal antitrust laws and state laws that govern contracts.

According a statement by the National Community Pharmacists Association (NCPA), the action was sent into motion by wrongful penalties for Medicare Part D prescriptions, called pharmacy direct and indirect remuneration (DIR) fees. Berger Montague and Cohen & Gresser announced the lawsuit yesterday.

“Finally, community pharmacies have a chance to recover DIR fees that were unfairly taken. [Pharmacy benefit mangers (PBMs)] have been gaming the system for a long time, and it’s time to turn the tables,” Douglas Hoey, the CEO of NCPA, said in a statement.

According to the legal action, Osterhaus Pharmacy is bringing 5 claims against the entities: 1.) “a tying claim under federal antitrust law;” 2.) “breach of covenant of good faith and fair dealing;” 3.) “declaratory judgment that the DIR fees that CVS Caremark imposed are unconscionable;” 4.) “unjust enrichment;” and 5.) “quantum meruit.”

In 2021, an arbitrator awarded $23 million to the AIDS Healthcare Foundation, finding that Caremark breached covenant of good faith and fairness by implementing DIR fees, according to the NCPA statement. Further, in 2022, an arbitrator awarded $2.1 million in wrongfully collected fees and $1.5 million in attorney and interest due to Caremark’s contract being unconscionable, according to the ruling.

As written in the legal action, Osterhaus Pharmacy brings this lawsuit on behalf of itself and other pharmacies that are not part of the 3 biggest PBM entities and are considered independent of the PBMs, are located in the United States, and paid any DIR fees directly to CVS Caremark from September 26, 2019, until the time of the trial.

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