Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Mo.: AIDS Healthcare Foundation missed its chance to sue Express Scripts, (Aug 26, 2026)

By Kenneth H. Ryesky, M.B.A., J.D.

Dismissal of previous case settled all claims brought in second case, including the federal antitrust claims that could have been initially asserted but were not.

The federal district court in St. Louis, Missouri has dismissed a lawsuit by the AIDS Healthcare Foundation against Express Scripts, Inc. The lawsuit detailed several ways Express Scripts allegedly harms competition, including its use of opaque and one-sided contracts that imposed non-negotiable contract terms on a take-it-or-leave-it basis. These contracts purportedly contained complex and conditional reimbursement formulas that make it nearly impossible for specialty pharmacies to determine actual reimbursement rates for drugs. The Foundation had filed a separate action in the same court based on the same actions, which had been dismissed. Express Scripts argued, and the court agreed, that the present claims were barred by the doctrine of claim preclusion. Specifically, the claims were barred by the claim splitting doctrine because they stemmed from the same contracts that were at issue in the previously dismissed case (AIDS Healthcare Foundation v. Express Scripts, Inc., No. 4:24-cv-01043-MAL (E.D. Mo. Aug. 25, 2026)).

Background. The AIDS Healthcare Foundation (AHF) operates specialty pharmacies that specialize in HIV/AIDS and hepatitis C medications. Express Scripts, Inc. (ESI) is a pharmacy benefits manager (PBM) that dominates pharmacy benefits in Louisiana and elsewhere in the United States. Accredo Health Group, Inc. (Accredo) is a specialty pharmacy operator wholly owned by ESI.

In 2022, AHF sued ESI (but not Accredo) alleging (1) breach of contract; and (2) breach of implied covenant of good faith and fair dealing; (3) unconscionability; and (4) unfair trade practices under various state statutes. The 2022 lawsuit was dismissed in its entirety on February 28, 2023 [AIDS Healthcare Foundation v. Express Scripts, Inc., 658 F. Supp. 3d 693 (E.D. Mo. 2023)]. In dismissing that case, the court acknowledged "AHF's concerns and its needs with respect to its particularly vulnerable patient base" while noting that the federal Center for Medicare and Medicaid Services (CMS) was better postured to address those issues and had already begun to do so. The court there concluded that it "simply cannot remedy those concerns within the rubric of contract law or equity."

In July 2024, AHF sued ESI and Accredo alleging Sherman Act causes of action, as well as breach of contract and breach of implied covenant of good faith and fair dealing. ESI moved to dismiss AHF's amended complaint based on issue preclusion.

Claim preclusion. The court found that the Missouri claim preclusion doctrine was applicable. The 2022 lawsuit was brought under the court's diversity jurisdiction in the Eastern District of Missouri, so Missouri's procedural law, including its claim preclusion doctrine, applied, and the 2022 case's outcome determined its preclusive effect under Missouri's claim preclusion doctrine. Furthermore, AHF's federal antitrust claims could have been asserted by it in the 2022 case, and were thus precluded from assertion in the 2024 case.

Claim preclusion-claim splitting. The judge determined that AHF had improperly split its claims under the Missouri claim preclusion doctrine. Here, AHF's claims arose "from the same facts and circumstances as its claims in its prior case against Express Scripts." The claims were all based upon the 2017 Pharmacy Provider Agreement contract between AHF and ESI. In both the 2022 case and the instant case, AHF had alleged that ESI possessed and abused its bargaining power to impose terms that caused AHF's specialty pharmacies to be reimbursed at lower rates. All of AHF's rights with respect to its claims against ESI in the 2022 lawsuit were thus extinguished with the dismissal of the case.

The operative facts of the respective cases were not "completely different" as AHF had argued; they were merely new legal theories. Moreover, the alleged "new facts" asserted in the 2024 case were not ultimate facts, but evidentiary details that would not affect the ultimate outcome of the case, mostly from a report issued by the FTC. This federal agency report put the entire industry on notice that the FTC was investigating the conduct of PBMs.

Moreover, the fact that ESI's subsidiary Accedo was not named as a defendant in the 2022 case did not bar the preclusive effect of the 2022 lawsuit's dismissal. Accedo was in privity of contract with its parent ESI, and therefore had the opportunity to litigate or otherwise assert its interests against AHF in the previous lawsuit.

The Case is No. 4:24-cv-01043-MAL.

Judge: Lanahan, M.

Attorneys: Brian E. McGovern (McCarthy Leonard LC) for Aids Healthcare Foundation. Eric Christopher Lyttle (Quinn Emanuel LLP) for Express Scripts, Inc.

Companies: Express Scripts, Inc.; Aids Healthcare Foundation

Cases: Antitrust MissouriNews