CVS, FTC at odds over court order and timeline to produce PBM records

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CVS is at odds with the Federal Trade Commission over a court order mandating that it hand over documents in the FTC’s civil investigation of its pharmacy benefits manager.

On Monday, U.S. District Judge John D. Bates in the District of Columbia ordered CVS to produce more documentation within 30 days of the Feb. 24 court order.

The documents relate to those created prior to and including Dec. 31, 2023, by not later than Feb. 28, the court said. Bates further ordered CVS to produce all responsive documents created between Jan. 1, 2024, and Dec. 31, 2024, by not later than April 30, 2025.

On Monday, in a motion entered on Thursday, CVS asked the court to deny the motion and the timeline. 

“The FTC has already reneged once on the previously agreed upon cut-off date of December 31, 2023 for responsive materials,” CVS said. “In its reply, the FTC shifts its position yet again, with an even more extreme proposal: requiring CVS to produce responsive documents through December 31, 2024 within 30 days of this court’s order.”

CVS said the FTC reply also misstated basic facts to support its allegation that CVS has “understated the scope of its remaining compliance obligations,” asserting CVS has hundreds of thousands of documents remaining to be produced. The FTC’s own declaration reveals this assertion is wrong, CVS said. 

In addition to the more than 1.2 million documents previously produced by CVS in response to the Civil Investigative Demand (CID), only about 70,000 documents remain to be produced, which will account for only about 5% of the total responsive document set, CVS said.

“The only purported rationale for the new cut-off date is that the FTC requires ‘current’ documents, which the FTC advanced for the first time after CVS pointed out that the FTC ‘could not articulate any benefit’ that would justify the FTC’s previous proposed cut-off date of August 26, 2024.

“For the reasons set forth above and in its original opposition, CVS respectfully requests that the Court deny the FTC’s Petition, including its new proposal that CVS be ordered to produce documents through December 31, 2024 within 30 days of the Court’s order,” CVS said. 

CVS asked that the cut-off date for responsive materials be set for Dec. 31, 2023.

WHY THIS MATTERS

On Jan. 15, FTC sued CVS Health to enforce it to comply with a civil investigative demand from the FTC.

The commission is investigating whether the business practices of CVS and its wholly owned pharmacy benefit manager Caremark unlawfully reduced pharmacy competition or otherwise violated any of the laws enforced by the FTC. 

The FTC issued the CID to CVS in December 2023. Instead of complying, CVS “has delayed and obstructed” for more than a year and has produced only a small fraction of the requested materials, the FTC said.

THE LARGER TREND

Also on Jan. 15, the FTC asked the court to require Cigna to comply with a similar CID in an investigation into whether its business practices and that of its wholly owned pharmacy benefit manager, Express Scripts, unlawfully reduced pharmacy competition or otherwise violated any of the laws.

As in the case of CVS, the FTC said Cigna “delayed and obstructed.”

On Feb. 10, the FTC and Cigna notified the court that the parties had reached an agreement by which Cigna would comply with the Dec. 8, 2023, CID. Cigna agreed to a May 7 deadline.

The court ordered the parties to file a joint status report by no later than May 20.

Email the writer: SMorse@himss.org