NATIONAL ASSOCIATION OF CHAIN DRUG STORES et al v. EXPRESS SCRIPTS, INC. et al

Filing 20

MOTION for Temporary Restraining Order by ANBAR, INC., BROAD AVE PHARMACY LLC, DAVID M. SMITH RPH, INC., HOLLIDAYSBURG PHARMACY LLC, KLINGENSMITH DRUG INC., KOPP DRUG, INC., LECH'S PHARMACY, MJR, LTD., MJRRX, INC., NATIONAL ASSOCIATION OF CHAIN DRUG STORES, NATIONAL COMMUNITY PHARMACISTS ASSOCIATION, PJL PHARMACY, INC., PROFESSIONAL SPECIALIZED PHARMACIES, LLC., SELLERSVILLE PHARMACY, INC., TEP, INC., THOMPSON ENTERPRISES INC., VALUE DRUG COMPANY, VALUE SPECIALTY PHARMACY LLC. (Attachments: # 1 Exhibit A) (Gibbons, Charles)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
________________________________
NATIONAL ASSOCIATION OF CHAIN
DRUG STORES; NATIONAL COMMUNITY
PHARMACISTS ASSOCIATION;
KLINGENSMITH DRUG INC., KOPP
DRUG, INC.; LECH’S PHARMACY, PJL
PHARMACY, INC.; MJR, LTD.; MJRRX,
INC.; DAVID M. SMITH RPH, INC.;
PROFESSIONAL SPECIALIZED
PHARMACIES, LLC; ANBAR, INC.;
SELLERSVILLE PHARMACY, INC.; TEP,
INC.; THOMPSON ENTERPRISES INC.;
BROAD AVE PHARMACY LLC;
HOLLIDAYSBURG PHARMACY LLC;
VALUE DRUG COMPANY; and VALUE
SPECIALTY PHARMACY LLC,
Plaintiffs,
v.

Civil Action No. 2:12-cv-00395-CRE

EXPRESS SCRIPTS, INC.
and MEDCO HEALTH SOLUTIONS, INC.,

Defendants.
________________________________
PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER
Plaintiffs request a Temporary Restraining Order pursuant to Section 16 of the Clayton
Antitrust Act, 15 U.S.C. § 26, and Rule 65 of the Federal Rules of Civil Procedure, to prevent
and restrain the Defendants from violating Section 7 of the Clayton Act, 15 U.S.C. § 18.
Specifically, Plaintiffs request that Defendants be enjoined by a Temporary Restraining Order
from consummating the proposed acquisition of Medco Health Solutions, Inc. (“Medco”) by
Defendant Express Scripts, Inc. (“ESI”) pending entry by the Court of a final judgment in this

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action, or in the alternative, that ESI be ordered to hold separate Medco’s assets and operations
after consummating the proposed acquisition and pending entry by the Court of a final judgment
in this action.
In requesting the restraining order, Plaintiffs ask that this Court maintain the status quo to
preserve competition; to prevent immediate imminent and irreparable harm to them, to patients,
and to plans sponsors; and to preserve remedies available to Plaintiffs under the Clayton Act.
The Motion is based on the following grounds:
1. On July 20, 2011, Defendant Express Scripts, Inc. (“ESI”) and Medco Health Solutions,
Inc. (“Medco”) entered into an Agreement and Plan of Merger, pursuant to which ESI
would ultimately acquire Medco for 0.81 shares of ESI and $28.80 in cash per Medco
share, for a total of approximately $29 billion.
2. In filings before the Securities and Exchange Commission (“SEC”) on March 28, 2012,
Medco and ESI each represented that they may consummate the proposed acquisition as
early as the week of April 2, 2012.
3. On March 29, 2012, Plaintiffs filed a Complaint alleging that Defendant ESI’s proposed
acquisition of Medco violates Section 7 of the Clayton Act, 15 U.S.C. § 18.
4. Unless enjoined by this Court, Plaintiffs will suffer immediate and irreparable harm
resulting from an imminent and irreversible reduction to competition caused by the
intermingling of information and assets held by the Defendants.
5. Such a reduction in competition will also cause serious harm to the public, including
patients, plan sponsors, and state and federal governments. Thus, granting the requested
relief will be in the public interest.

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6. The harm to Plaintiffs and the public will outweigh any hypothetical harm to Defendants
caused by slightly delaying this anticompetitive acquisition or by slightly delaying the
integration of Defendants’ assets.
7. There is a substantial likelihood that Plaintiffs will establish at trial that the acquisition of
Medco by ESI would violate Section 7 of the Clayton Act, 15 U.S.C. § 18.
8. Counsel for Plaintiffs has conferred with counsel for Defendants prior to seeking relief as
required by Rule III.C. of the Practices and Procedures for Magistrate Judge Eddy. The
Fed. R. Civ. P. 65(b) Affidavit regarding the same is attached hereto as Exhibit A.
This emergency motion will be followed with a Memorandum in Support of Plaintiffs’ Motion
for a Temporary Restraining Order to be filed on April 2, 2012.
WHEREFORE, Plaintiffs pray that Defendants be either (1) enjoined from
consummating the proposed acquisition of Medco by ESI pending entry by the Court of a final
judgment in this action, or (2) ordered to hold separate Medco’s assets and operations after
consummating the proposed acquisition.

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DATED: March 30, 2012
Respectfully submitted,

J. Robert Robertson (DC Bar #501873)
(pro hac vice to be filed)
Corey W. Roush (DC Bar #466337)
(pro hac vice to be filed)
Christian M. Rowan (DC Bar #978124)
(pro hac vice to be filed)
HOGAN LOVELLS US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

/s/ Charles B. Gibbons
Charles B. Gibbons (Pa. ID. No. 08284)
David J. Porter (Pa. ID. No. 66125)
Christopher A. Amar
(Pa. ID. No. 309707)
BUCHANAN INGERSOLL &
ROONEY PC
One Oxford Centre, 20th Floor
301 Grant Street
Pittsburgh, PA 15219
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiffs
and
Peter J. Kadzik (pro hac vice to be filed)
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Phone: [phone]
Fax: [phone]
[e-mail]
Attorney for Plaintiffs NACDS and NCPA

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