Corcoran et al v. CVS Health Corporation

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

ORDERS UPON NINTH CIRCUIT OPINION AND TRIAL SETTING ORDER. Signed by Judge Yvonne Gonzalez Rogers on 8/23/2019.

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 CHRISTOPHER CORCORAN, ET AL., CASE NO. 15-cv-03504-YGR 6 Plaintiffs, ORDERS UPON NINTH CIRCUIT OPINION AND TRIAL SETTING ORDER 7 vs. 8 CVS HEALTH, ET AL., 9 Defendants. 10 On September 5, 2017, this Court granted in part plaintiffs' motion for class certification 11 and granted defendant CVS's motion for summary judgment. (Dkt. No. 327.) The Court entered 12 judgment in favor of CVS on September 13, 2017 (Dkt. No. 339) and plaintiffs timely appealed. Northern District of California United States District Court 13 The Ninth Circuit reversed all of the Court's findings and remanded the action for further 14 proceedings. 15 Based on the Ninth's Circuit's opinion, the Court ORDERS as follows: 16 First, whereas the Court GRANTED IN PART plaintiffs' motion for class certification, 17 certifying a California, Florida, Illinois, and Massachusetts class, but limited only to the PBM that 18 adjudicated each class representative's claim and that limitation was reversed by the Ninth Circuit, 19 the Court HEREBY CERTIFIES the following class without limitation: 20 All CVS customers in California, Florida, Illinois, and Massachusetts, who, between 21 November 2008 and July 31, 2015 (the "Class Period"), (1) purchased one or more generic prescription drugs that were offered through CVS's Health Savings Pass ("HSP") program 22 at the time of the purchase; (2) were insured for the purchase(s) through a third-party payor plan administered by one of the following pharmacy benefit managers: 23 Caremark/PCS, Express Scripts, Medco, MedImpact, or Optum/Prescription Solutions (prior to January 29, 2015); and (3) paid CVS an out-of-pocket payment for the 24 purchase greater than the HSP price for the prescription. 25 Second, whereas the Court GRANTED IN PART defendants' motion to exclude certain opinions by 26 Dr. Hay and to strike Dr. Hay's opinion that CVS's Health Savings Pass ("HSP") prices are the 27 "Usual and Customary" ("U&C") prices as defined in CVS's contracts and was reversed by the 28 Ninth Circuit, the Court HEREBY DENIES the motion to exclude and strike. 1 Third, whereas the Court GRANTED defendants' motion for summary judgment finding no 2 triable issue of fact exists with regard to whether CVS misrepresented its U&C price to the PBMs 3 and the Ninth Circuit reversed, the Court HEREBY DENIES the motion for summary judgment. 4 Based thereon, the Court finds that with those holdings, the parties are returned to the 5 posture of the case in September 2017, except with the holdings changed as noted, and as is 6 standard practice sets a trial date with related deadlines. The Court does not authorize a second 7 summary judgment motion or re-briefing on class certification. 1 8 In that regard, in September 2017, the Court DENIED WITHOUT PREJUDICE plaintiffs' 9 motion to certify a New York and Arizona class because the evidence showed that the proffered 10 plaintiffs did not have any "transactions adjudicated by any of the five PBMs at issue for purposes 11 of class certification during the Class Period." Having denied the motion without prejudice, and in 12 light of the procedural posture of the case, the Court will allow a limited period of time for Northern District of California United States District Court 13 plaintiffs to identify an appropriate plaintiff and appropriate discovery and motion practice. 14 Based on the foregoing, the Court further ORDERS as follows, as slightly modified: 15 FILING DEADLINE FOR MOTION TO SUBSTITUTE CLASS REPRESENTATIVE FOR THE NEW YORK & September 9, 2019 16 ARIZONA CLASSED 17 DEADLINE TO FILE A PROPOSED NOTICE PLAN September 16, 2019 18 DEADLINE TO FILE ANY OPPOSITION TO EITHER THE October 7, 2019 19 MOTION OR NOTICE PLAN 20 DEADLINE TO FILE A REPLY ISO MOTION AND October 21, 2019 NOTICE PLAN 21 HEARING ON PROPOSED NOTICE November 5, 2019 @ 1:00 p.m. 22 DISSEMINATION OF CLASS NOTICE Two Weeks from the date of the Court's 23 decision 24 25 1 26 The Court notes that during the case management conference on August 19, 2019, defendant indicated that the Court had not addressed certain elements of class certification in the 27 September 2017 order. In the September 2017 order, the Court explained that it did not address certain of defendant's arguments because, either it had previously rejected them and so, for the 28 same reasons, did so again (see Dkt. No. 327 at 7 n.4, 8), or the arguments were mooted by the Court's decisions elsewhere within the September 2017 order (see id. at 10-11). 2 1 2 REFERRED FOR PRIVATE MEDIATION TO BE December 6, 2019 COMPLETED BY: 3 COMPLIANCE HEARING (SEE BELOW) February 28, 2020 at 9:01 a.m. 4 JOINT PRETRIAL CONFERENCE STATEMENT: March 20, 2020 5 6 PRETRIAL CONFERENCE: March 27, 2020 TRIAL DATE AND LENGTH: Jury Selection: April 15, 2020 7 Openings & Evidence: April 20, 2020 8 (Presumptively 45 hours, jointly split, including openings and closing) 9 10 Pursuant to the Court's Pretrial Instructions in Civil Cases at Section 2, trial counsel shall 11 meet and confer in advance of the Pretrial Conference. The compliance hearing on Friday, 12 February 28, 2020 at 9:01 a.m. is intended to confirm that counsel have reviewed the Court's Northern District of California United States District Court 13 Pretrial Setting Instructions and are in compliance therewith. The compliance hearing shall be 14 held in the Federal Courthouse, 1301 Clay Street, Oakland, California, in Courtroom 1. Five (5) 15 business days prior to the date of the compliance hearing, the parties shall file a one-page JOINT 16 STATEMENT confirming they have complied with this requirement or explaining their failure to 17 comply. If compliance is complete, the parties need not appear and the compliance hearing will be 18 taken off calendar. Telephonic appearances will be allowed if the parties have submitted a joint 19 statement in a timely fashion. Failure to do so may result in sanctions. 20 As set forth above, the parties are REFERRED to private mediation. A compliance hearing 21 shall be held on Friday, September 27, 2019 on the Court's 9:01a.m. calendar, in the Federal 22 Courthouse, 1301 Clay Street, Oakland, California, in Courtroom 1. The parties shall provide the 23 Court with the name of an agreed-upon mediator by September 20, 2019 by filing a JOINT 24 Notice. Also by September 20, 2019, plaintiffs shall file form orders regarding any dismissals by 25 certain defendants. If compliance is complete, the parties need not appear and the compliance 26 hearing will be taken off calendar. Telephonic appearances will be allowed if the parties have 27 submitted a joint statement in a timely fashion. 28 \\ 3 1 The parties must comply with both the Court's Standing Order in Civil Cases and Standing 2 Order for Pretrial Instructions in Civil Cases for additional deadlines and procedures. All 3 Standing Orders are available on the Court's website at http://www.cand.uscourts.gov/ygrorders. 4 IT IS SO ORDERED. 5 6 Dated: August 23, 2019 YVONNE GONZALEZ ROGERS 7 UNITED STATES DISTRICT COURT JUDGE 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4