Patrick J. Lynch, as trustee of the Health and Welfare Fund and the Retiree Health & Welfare Fund of the Patrolmen's Benevolent Association of the City of New York and on behalf of all other similarly situated Plans, Plaintiff - Appellant
National Prescription Administrators, Inc.; Express Scripts, Inc.; John Does, 1-25, Defendants - Appellees
Submitted January 13, 2015.
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For Patrick J. Lynch, as trustee of the Health and Welfare Fund and the Retiree Health & Welfare Fund of the Patrolmen's Benevolent Association of the City of New York and on behalf of all other similarly situated Plans, Plaintiff - Appellant: David A. McKay, LAW OFFICE OF DAVID A. MCKAY, Alpharetta, GA; William H. Narwold, MOTLEY & RICE, Hartford, CT.
For National Prescription Administrators, Inc., Express Scripts, Inc., Defendants - Appellees: Mark G. Arnold, Melissa Zigler Baris, Thomas McKee Dee, Christopher A. Smith, HUSCH & BLACKWELL, Saint Louis, MO.
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
BENTON, Circuit Judge.
In 2002, Express Scripts, Inc. (ESI) acquired National Prescription Administrators, Inc. (NPA). In 2003, two health Funds of a police union brought a class action against ESI and NPA. In 2004, the New York Attorney General (AG) sued ESI, resulting in a consent judgment. Based on that consent judgment, ESI moved for summary judgment in the Funds' suit. The district court granted ESI's motion, applying res judicata. The Funds appeal. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.
The Patrolmen's Benevolent Association of the City of New York, Inc. is a union of active and retired New York City police officers. It created the Funds as private trusts to provide prescription drug benefits to its members " in every state of the United States except South Dakota." The trustees are union officers who administer those benefits with money gained by collective bargaining with New York City.
NPA provided pharmacy-benefit-management services to the Funds through July 2002. Alleging various common law and statutory claims, the Funds brought their class action in federal court on behalf of " all current and former self-funded non-ERISA employee benefit Plans for which NPA and/or Express Scripts serve or have served as the Plan's PBM." The Funds never contracted with ESI. The action was transferred to multi-district litigation in the Eastern District of Missouri.
In 2004, the AG sued ESI in New York state court, alleging ESI breached its contract with the " Empire Plan," the State's main employee health plan. According to the complaint's preamble, it was brought by " The People of the State of New York, by their attorney," the AG. In Paragraph 27, the AG specified the bases for its suit:
Plaintiffs commence this action pursuant to: (1) Executive Law § 63(1), under which the Attorney General is empowered to prosecute and defend all actions and proceedings in which the State of New York is interested; (2) Executive Law § 63(12), under which the People of the State of New York, by the Attorney General of the State of New York, are empowered to seek injunctive relief, restitution, damages and costs against any person or business entity that has engaged in repeated fraudulent or illegal acts or otherwise engaged in persistent fraud or illegality in the conduct of a business; and ...