Behnke v. CVS Caremark Corporation et al.

Berger Montague Appeals & Complex Briefing Department is leading the briefing on appeal of the lower court order compelling arbitration in the Ninth Circuit Court of Appeals representing Plaintiffs-Appellants-Cross-Appellees. Berger Montague represents several independent pharmacies in a class action against CVS Caremark, the largest Pharmacy Benefit Manager (“PBM”) in the nation. The lawsuit alleges that CVS Caremark’s anticompetitive conduct has driven independent pharmacies across the United States out of business.

The Participants in the Lawsuit. Osterhaus Pharmacy is representing a proposed class of pharmacies against CVS Caremark, the largest pharmacy benefit manager (“PBM”) in the country. Berger Montague PC, Cohen & Gresser LLP, along with local counsel the Terrell Marshal Law Group PLLC, have filed the class action lawsuit in the United States District Court for the Western District of Washington.

The Nature of the Claims. The lawsuit alleges that CVS Caremark unlawfully purported to use a loophole in Medicare regulations to assess pharmacy DIR fees in violation of federal antitrust laws and state laws governing contracts. Because CVS Caremark is the country’s largest PBM and controls access to Medicare Part D beneficiaries, it was able to force independent pharmacies to accept the unreasonable terms. 

No Need to Sign Up. Independent pharmacies do not need to sign up to benefit from the potential class action. Osterhaus Pharmacy will ask the Court to allow it to pursue its claims on behalf of other pharmacies. If the Court permits that, pharmacies across the U.S. will be able to share in any money or other legal relief that Osterhaus Pharmacy obtains. That is how a class action works. Pharmacies do not need to take any action at this time to gain benefits from the class action if it is successful. 

Contact Information, Updates, and Questions. If you represent a pharmacy, and you would like to make sure we can contact you about developments in this or related legal proceedings, please complete the form on this page. Also, if you have any specific questions, you may contact our litigation team at PBMLitigation@bm.net.   

Read more about the case:

• U.S. District Court decision in Osterhaus a mixed bag, February 14, 2025
• NCPA applauds ruling in class action case against CVS, November 18, 2024.

Berger Montague is one of the nation’s preeminent law firms focusing on complex civil litigation, class actions, and mass torts in federal and state courts throughout the United States. The firm is active in the fields of antitrust, commercial litigation, consumer protection, defective products, environmental law, employment law, securities, and whistleblower cases, among many other practice areas. For more than 50 years, Berger Montague has played lead roles in precedent-setting cases and has recovered over $50 billion for its clients and the classes they have represented. Berger Montague is headquartered in Philadelphia and has offices in Chicago, Minneapolis, San Diego, San Francisco, Toronto, Washington, D.C., and Wilmington, DE.

About Cohen & Gresser LLP. Cohen & Gresser LLP is an international law firm with offices in New York, Paris, Washington, DC, and London. It has an outstanding record of success in high-stakes and high-profile litigation, investigations, and transactions for its clients, including major financial institutions and companies across the world. The firm has been recognized in a wide range of publications, including Chambers, The Legal 500, Global Investigations Review, Managing IP, U.S. News & World Report’s “Best Law Firms,” Décideurs, and Benchmark Litigation. It has also been named to The National Law Journal’s “Midsize Hot List” and the BTI Client Service A-Team, and over half of its U.S.-based attorneys have been recognized by Super Lawyers.