Express Scripts, Inc. v. Walgreen Co.

Filing 9

MOTION by Plaintiff Express Scripts, Inc. for preliminary injunction (White, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EXPRESS SCRIPTS, INC,
a Delaware Corporation,
Plaintiff,
v.
WALGREEN CO.,
an Illinois Corporation
Defendant.

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Case No. 11cv06223
Judge Marvin E. Aspen
Magistrate Judge Morton Denlow

MOTION FOR PRELIMINARY INJUNCTION
Plaintiff, Express Scripts, Inc. (“Express Scripts”), pursuant to Fed. R. Civ.
P. 65(a), respectfully requests that this Court grant its Motion for a Preliminary
Injunction against Defendant Walgreen Co., (“Walgreens”).
Under the terms of a Pharmacy Provider Agreement, Walgreens dispenses
pharmaceuticals to individuals who participate in Prescription Drug Programs
provided by Express Scripts for Medicare Part D participants, health plans, and
other plan sponsors.
The Pharmacy Provider Agreement gives Walgreens access to over 60
million Express Scripts members. In exchange for this access, Walgreens agreed
to dispense pharmaceuticals to Express Scripts’ members at discounted rates and
agreed, among other things, that it would not attempt to disenroll any Express
Scripts’ member and that it would not market, promote, or prefer, any Medicare
Part D Plan over another plan, including those offered by Express Scripts.
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The

current Walgreens/Express Scripts Pharmacy Provider Agreement expires at the
end of 2011.
Recognizing that its relationship with Express Scripts is ending, Walgreens
has launched an aggressive campaign of false advertising and marketing designed
to disenroll and steer members away from Express Scripts, disparage Express
Scripts in communications with its clients and members, and to promote and
prefer other Medicare Part D programs to the exclusion of those offered through
Express Scripts. This is exactly what Walgreens expressly said that it would not
do in its contract with Express Scripts, and Walgreens actions are in direct
violation of the Pharmacy Provider Agreement. In addition to the clear breach of
the Provider Agreement, the false statements in Walgreens’ campaign also violate
the Lanham Act (15 U.S.C. § 1125(a)(1)(B)) and are separately actionable.
Express Scripts is entitled to a preliminary injunction in this matter because
it has suffered and will continue to suffer irreparable harm if Walgreens’ actions
and ongoing contract breaches are not enjoined, because it has no adequate
remedy at law, and because it is more than likely to succeed on the merits of this
case. Unless enjoined by this Court, Walgreens’ ongoing breach of the Pharmacy
Provider Agreement will greatly disrupt the orderly transition of tens of thousands
of plan participants’ prescriptions, and cause irreparable and immeasurable
damage to Express Scripts and its clients. Under these circumstances, the balance
of the equities strongly supports the issuance of an injunction.

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In support of its Motion, Express Scripts submits its Memorandum of Law
in Support of its Motion for a Preliminary Injunction.
Wherefore, the reasons set forth above, as well as in its Memorandum of
Law and Verified Complaint, Express Scripts requests that this Court grant its
request for a preliminary injunction, including the following specific relief:
a. Preliminary and permanent injunctive relief prohibiting Walgreens from
engaging in any conduct or communications that direct or attempt to
direct any members to disenroll in Express Scripts’ Medicare Part D
programs during the term of the Pharmacy Provider Agreement, or
through January 1, 2012;
b. Preliminary and permanent injunctive relief prohibiting Walgreens from
engaging in any conduct or communications that promote or prefer any
Medicare Part D program over any Express Scripts’ program during the
term of the Pharmacy Provider Agreement, or through January 1, 2012;
c. Preliminary and permanent injunctive relief prohibiting Walgreens from
engaging in any conduct or communications including, but not limited
to, contacting any media or any Sponsor or Sponsor’s Members or other
party, designed to disparage Express Scripts, or disenroll or steer
members away from Express Scripts, during the term of the Pharmacy
Provider Agreement, or through January 1, 2012;

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d. Preliminary and permanent injunctive relief prohibiting Walgreens from
stating, or making statements suggesting that, it cannot accept a valid
prescription from an Express Scripts’ member after December 31, 2011;
e. any and all money damages that can be proven by Express Scripts,
although such money damages will not provide Express Scripts with an
adequate remedy and must be paired with injunctive relief;
f. its reasonable attorneys’ fees and costs for investigating and bringing
this claim; and
g. all other necessary and appropriate relief.

September 8, 2011

Respectfully Submitted,

EXPRESS SCRIPTS, INC.
By:

James P. White
James F. Monafo (pro hac pending)
Christopher J. Valeriote (pro hac pending)
Christopher A. Smith (pro hac pending)

HUSCH BLACKWELL LLP
120 South Riverside Plaza
Suite 2200
Chicago, IL 60606
Phone: [phone]
Fax: [phone]

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s/James P. White
One of Its Attorneys

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 8th day of September, 2011, the
foregoing was filed electronically with the Clerk of the Court for the United States
District Court for the Northern District of Illinois, Eastern Division, and was served via email and U.S. Mail, postage prepaid, upon the following counsel for Defendant:
Peter B. Bensinger, Jr.
Hamilton H. Hill
Asha L.I. Spencer
Bartlit Beck Herman Palenchar & Scott LLP
54 W. Hubbard Street, Suite 300
Chicago, Illinois 60654
[e-mail]
[e-mail]
[e-mail]
Office: 312.494.4426
Office Fax: [phone]

/s/ James P. White

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