Green et al v. Paz et al

Filing 15

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 2769) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 4/5/2017. Associated Cases: MDL No. 2769, MOE/4:16-cv-01900, NYS/1:16-cv-03338, NYS/1:16-cv-03399, NYS/1:16-cv-07500 (TLL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: EXPRESS SCRIPTS HOLDING COMPANY
SECURITIES, DERIVATIVE AND EMPLOYEE
RETIREMENTINCOME SECURITY ACT (ERISA)
LITIGATION

MDL No. 2769

ORDER DENYING TRANSFER

Before the Panel:* The Express Scripts defendants1 move under 28 U.S.C. § 1407 to
centralize this litigation in the Eastern District of Missouri. This litigation currently consists of four
actions pending in two districts, as listed on Schedule A. Plaintiffs in all actions and defendant
Anthem, Inc. (Anthem) oppose centralization. In the alternative, plaintiffs in the Southern District
of New York actions and Anthem request that district.
On the basis of the papers filed and the hearing session held, we conclude that centralization
is not necessary for the convenience of the parties and witnesses or to further the just and efficient
conduct of the litigation. The actions unquestionably share common factual allegations concerning
ESI’s provision of pharmacy benefit management services for Anthem health plans and, in particular,
ESI’s alleged failure to provide competitive pricing for prescription drugs. But where only a
minimal number of actions are involved, the proponent of centralization bears a heavier burden to
demonstrate that centralization is appropriate. See In re: Transocean Ltd. Sec. Litig. (No. II), 753
F. Supp. 2d 1373, 1374 (J.P.M.L. 2010). Moving defendants have failed to do so here.
There are only four actions in this litigation, and three actions already are proceeding as
related cases before the same judge in the Southern District of New York.2 The Express Scripts

*

One or more Panel members who could be members of the putative classes in this litigation
have renounced their participation in these classes and have participated in this decision.
1

Express Scripts Holding Company (ESHC); Express Scripts, Inc. (ESI); and the following
alleged current and former officers and directors of ESHC: George Paz, Timothy Wentworth, Eric
Slusser, David Queller, James M. Havel, Maura C. Breen, William J. DeLaney, Elder Granger,
Nicholas J. LaHowchic, Thomas P. MacMahon, Frank Mergenthaler, Woodrow A. Myers, Jr.,
Roderick A. Palmore, William L. Roper, Seymour Sternberg, Christopher A. McGinnis, Gary G.
Benanav, and Christopher Knibb.
2

The Southern District of New York court also presides over an additional action between
Anthem and ESI that likely involves discovery related to the actions on the motion.

-2defendants are represented principally by two counsel in the underlying actions, who are wellpositioned to coordinate the litigation across the four actions. All responding parties except for
movants agree that informal coordination of discovery and pretrial proceedings is practicable and
preferable to centralization.
Additionally, the ERISA action raises case-specific factual and legal issues concerning the
extent of overpayments allegedly made by Anthem plan participants, ESI’s and Anthem’s duties
under ERISA, and putative classes not implicated in any other action. These case-specific issues are
likely to undermine the alleged efficiencies that could be gained from centralizing an already
minimal number of actions.
Although movants believe that the filing of related actions is likely, the mere possibility of
additional actions does not support centralization. See, e.g., In re: California Wine Inorganic
Arsenic Levels Prods. Liab. Litig., 109 F. Supp. 3d 1362, 1363 (J.P.M.L. 2015).
Given the limited number of involved counsel and actions, and the presence of significant
non-overlapping issues in one action, informal coordination of discovery and pretrial motions is
preferable to centralization. See, e.g., In re: United Healthcare Servs., Inc., Harvoni (Ledipasvir and
Sofosbuvir) Health Ins. Litig., — F. Supp. 3d —, 2016 WL 4153604 (J.P.M.L. Aug. 5, 2016); see
also Manual for Complex Litigation, Fourth, § 20.14 (2004).
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles A. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: EXPRESS SCRIPTS HOLDING COMPANY
SECURITIES, DERIVATIVE AND EMPLOYEE
RETIREMENT INCOME SECURITY ACT (ERISA)
LITIGATION

MDL No. 2769

SCHEDULE A

Eastern District of Missouri
GREEN, ET AL. v. PAZ, ET AL., C.A. No. 4:16-01900
Southern District of New York
IN RE EXPRESS SCRIPTS HOLDINGS COMPANY SECURITIES LITIGATION,
C.A. No. 1:16-03338
IN RE EXPRESS SCRIPTS/ANTHEM ERISA LITIGATION, C.A. No. 1:16-03399
CARPENTERS PENSION FUND OF WEST VIRGINIA v. BREEN, ET AL.,
C.A. No. 1:16-07500