Corcoran et al v. CVS Health Corporation

Northern District of California, cand-4:2015-cv-03504

Declaration Declaration of Thomas Moffatt

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1 Enu Mainigi (Pro Hac Vice) F. Lane Heard III (Pro Hac Vice) 2 Grant A. Geyerman (Pro Hac Vice) WILLIAMS & CONNOLLY LLP 3 725 Twelfth Street, NW Washington, DC 20005 4 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 5 Edward W. Swanson (State Bar No. 159859) 6 August Gugelmann (State Bar No. 240544) SWANSON & McNAMARA LLP 7 300 Montgomery Street, Suite 1100 San Francisco, CA 94104 8 Telephone: (415) 477-3800 Facsimile: (415) 477-9010 9 Attorneys for CVS Pharmacy, Inc. 10 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 16 CHRISTOPHER CORCORAN, et al., No. 15-CV-03504-YGR 17 Plaintiffs, CLASS ACTION 18 v. DECLARATION OF THOMAS S. MOFFATT IN SUPPORT OF CVS 19 CVS PHARMACY, INC. PHARMACY, INC.'S ADMINISTRATIVE MOTION TO SEAL 20 Defendant. RE: CVS'S MOTIONS IN LIMINE AND OMNIBUS OPPOSITION TO 21 PLAINTIFFS' MOTIONS IN LIMINE (May 5, 2020) 22 23 24 25 26 27 28 1 I, Thomas S. Moffatt, pursuant to 28 U.S.C. § 1746, hereby affirm that I am over 18 years 2 of age and am competent to make the following Declaration: 3 1. I have personal knowledge of the matters stated herein, and they are true and 4 correct to the best of my knowledge. I am authorized to make this Declaration on behalf of 5 Defendant CVS Pharmacy, Inc. ("CVS"). I authorize the use of this Declaration in connection 6 with the above-captioned lawsuit. 7 2. I have been employed by CVS since August 1997 and currently hold the position 8 of Vice President, Secretary and Assistant General Counsel – Corporate Services of CVS. 9 3. I submit this Declaration in support of CVS's Administrative Motion to File Under 10 Seal Materials Designated as Confidential Re: CVS's Motions In Limine and Omnibus Opposition 11 to Plaintiffs' Motions In Limine ("Motion") (May 5, 2020), which seeks to file under seal portions 12 of certain motions in limine and documents, or portions thereof, attached to CVS Pharmacy, Inc.'s 13 Motions In Limine. CVS seeks to seal all exhibits listed in this Motion in their entirety unless 14 indicated otherwise. 15 4. The following exhibits are declarations from third-party witnesses that reveal 16 various types of confidential information concerning business decisions, strategy, non-public 17 financial data, confidential communications, contractual relationships with non-parties, pricing 18 structures, methodologies, and models. CVS seeks to seal these documents in their entirety. 19 a. Exhibit 11: Declaration of Bretta Grinsteinner (April 1, 2019) 20 b. Exhibit 12: Declaration of Justin Kaiser (March 6, 2019) 21 c. Exhibit 13: Declaration of Darren Gettings, R.Ph. (March 8, 2019) 22 5. The following exhibits are excerpts from copies of CVS's agreements with business 23 partners who are not parties to this lawsuit. These agreements contain, inter alia, highly 24 confidential pricing terms, reimbursement formulae, and information regarding the internal 25 operations and proprietary systems of CVS and/or its counterparties that if disclosed publicly 26 would give competitors of CVS or CVS's counterparties an unfair advantage. CVS does not 27 routinely disclose publicly its agreements with business partners; the agreements are confidential, 28 and CVS is bound to keep the agreements listed in ¶¶ 5.a to 5.f confidential. DECLARATION OF THOMAS MOFFATT -1- 15-CV-03504-YGR 1 a. Exhibit 17: OptumRx, Inc. Pharmacy Network Agreement (Jan. 29, 2015) 2 b. Exhibit 18: Prescription Solutions Prescription Drug Services Agreement 3 (June 1, 1999) 4 c. Exhibit 19: PCS Health Systems, Inc. Provider Agreement (Mar. 31, 1997) 5 d. Exhibit 20: Express Scripts, Inc. Pharmacy Provider Agreement (Jan. 18, 6 2008) 7 e. Exhibit 21: Medco Health Solutions, Inc. Retail Pharmacy Agreement (Jan. 1, 8 2005) 9 f. Exhibit 22: MedImpact Pharmacy Network Agreement (Feb. 1, 2008) 10 6. The following exhibits are reports from Plaintiffs' and CVS's experts that reveal 11 various types of CVS's confidential business information, including but not limited to confidential 12 sales data and proprietary internal pricing formulae, which reflect sensitive commercial 13 information and non-public aspects of the company's internal business operations and finances. 14 Disclosure of data revealing the relative proportions of different types of prescription transactions 15 (e.g., insurance, cash, cash discount) in specific geographic markets, as well as CVS's proprietary 16 price-setting formula, could be used by CVS's competitors to obtain an unfair advantage. CVS 17 seeks to seal the exhibits listed in ¶¶ 6.a and 6.f in part and redact the confidential information. 18 a. Exhibit 24: Expert Report of Professor Joel W. Hay, Ph.D. 19 b. Exhibit 25: Rebuttal Report of Professor Joel W. Hay, Ph.D. 20 c. Exhibit 26: December 9, 2016 Report of Brett E. Barlag 21 d. Exhibit 27: Declaration of Professor Joel W. Hay, Ph.D. 22 e. Exhibit 29: January 27, 2017 Rebuttal Report of Brett E. Barlag 23 24 25 26 27 28 DECLARATION OF THOMAS MOFFATT -2- 15-CV-03504-YGR 1 7. The following exhibits reflect, discuss, or summarize the named Plaintiffs' 2 prescription purchases, medical conditions, and/or other personal information. CVS seeks to seal 3 the exhibits listed in ¶¶ 5.a to 5.3 in part and redact Plaintiffs' personal information. 4 a. Exhibit 31: Deposition Excerpts of Plaintiff Carl Washington (Aug. 30, 2016) 5 b. Exhibit 32: Deposition Excerpts of Plaintiff Tyler Clark (Oct. 26, 2016) 6 c. Exhibit 33: Deposition Excerpts of Plaintiff Darlene McAfee (Sept. 25, 2019) 7 d. Exhibit 34: Deposition Excerpts of Plaintiff Deborah Barrett (Sept. 16, 2016) 8 e. Exhibit 35: Deposition Excerpts of Plaintiff Robert Jenks (July 28, 2016) 9 8. The following excerpts of CVS's Motions In Limine should remain confidential 10 for the reasons which follow: 11 a. Pages 2:16–23 & nn. 5–6 and 3:1 & n.7 of Motion In Limine #3 quotes and 12 reflects portions of declarations from third-party witnesses that reveal various 13 types of confidential information concerning business decisions, strategy, 14 contractual relationships with non-parties, and pricing structures. 15 b. Page 2:21–22 of Motion In Limine #5 refers to portions of CVS's confidential 16 agreements with business partners who are not parties to this lawsuit, and 17 related confidential documents. These agreements contain, inter alia, highly 18 confidential pricing terms, reimbursement formulae, and information 19 regarding the internal operations and proprietary systems of CVS and/or its 20 counterparties that, if disclosed publicly, would give competitors of CVS or 21 CVS's counterparties an unfair advantage. CVS does not routinely disclose 22 publicly its agreements with business partners, the agreements are 23 confidential, and CVS is bound to keep the agreements confidential. 24 25 26 27 28 DECLARATION OF THOMAS MOFFATT -3- 15-CV-03504-YGR