Walgreens motions to stay ESI suit pending arbitration

ESI filed suit Sept. 7

CHICAGO — Walgreens on Thursday morning argued for its motion to stay an Express Scripts suit filed against the Chicago-based pharmacy on Sept. 7, pending arbitration.

In its lawsuit, Express Scripts contends that Walgreens is actively recruiting patients and seeks immediate relief from Walgreens' informing patients that the company's 7,760 stores will not be part of the Express Scripts pharmacy network at the top of the year.

"We confirm that Express Scripts, a pharmacy benefit manager, filed a lawsuit against Walgreens in the federal court in Chicago to stop Walgreens from making certain communications to our patients and the public," Tiffani Washington, Walgreens spokeswoman, shared with Drug Store News in an email. "We think that it is important to inform our patients and the public how this may impact their ability to fill prescriptions at Walgreens next year if Express Scripts serves as the pharmacy benefit manager for their particular healthcare plans; and we regret that Express Scripts has resorted to litigation in an effort to stop us. We obviously intend to vigorously defend against their suit."

"[Express Scripts] now wants to stop Walgreens from truthfully telling its patients that after Jan. 1, 2012, Walgreens plans to be out of the [Express Scripts] pharmacy network," Walgreens stated in court documents filed Thursday morning. "So 10 weeks after Walgreens began giving patients the facts and just a few weeks before what [Express Scripts] terms the 'critical' Medicare Part D open enrollment period begins on Oct. 15, ... [Express Scripts] sued."

In the original Sept. 7 filing, Express Scripts charged Walgreens with false advertising and breach of contract. "The Pharmacy Provider Agreement gives Walgreens access to over 60 million Express Scripts members, including approximately 2.5 million Medicare Part D members," Express Scripts stated. "In exchange for this access, Walgreens agreed to dispense pharmaceuticals to Express Scripts members at negotiated discounted rates and agreed, among other things, that it would not attempt to disenroll any Express Scripts member and or market, promote or prefer any Medicare Part D plan over another plan, including those offered by Express Scripts."

Walgreens countered on Sept. 12 that the same PPA Express Scripts alleges is being violated requires that all disputes between the two parties must be resolved through binding arbitration. "[Express Scripts] disregarded the broad arbitration clause it agreed to and brought its claims in the wrong forum."

Walgreens argued Thursday that "the court should not reward [Express Scripts] belated attempt to muzzle Walgreens in contravention of the parties' agreement to arbitrate, and should grant Walgreens' motion to stay pending arbitration." If Express Scripts thought it had a claim, the pharmacy benefit manager should have filed a demand for arbitration months ago, Walgreens stated. "Instead, [Express Scripts] chose to sit on its claims and then race into court months after it could have initiated arbitration. [Express Scripts] should not be permitted to turn its self-serving refusal to act into an 'emergency' requiring this court's intervention."

"Unless preliminary injunctive relief is issued immediately, Express Scripts will suffer irreparable harm to its reputation, good will and customer base," Express Scripts stated in court documents filed Wednesday. "But if Walgreens is awarded the stay it seeks here, an arbitrator will not even be appointed to hear this dispute for several weeks, if not months. This would deprive Express Scripts of even the opportunity to obtain meaningful relief to prevent irreparable harm."

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