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Express Scripts 2009 Annual Report
41
Amburgy v. Express Scripts, Inc.
(
Case No. 4:0
9
-
CV
-
705
,
United States District Court for the Eastern District of
Missouri) On May 8, 2009, Amburgy filed a class action lawsuit over ESI’s reported data incident in Octobe
r
2008 alleging tha
t
ESI failed to take adequate security measures to protect against theft of the information.
Plaintiff’s claims include negligence, breach of contract, and violations of state data breach notification laws.
Plaintiff sought to certify a nationwide class of all persons whose information was compromised and sought
unspecified monetary damages and injunctive relief. ESI’s motion to dismiss was granted on November 23, 2009,
plaintiff’s time to appeal has lapsed, and we consider this case closed
.
I
rwin v.
W
el
lPoint Health Networks, et. al.
(
Judicial Arbitration and Mediation Services
)
. On March 25, 2003,
Plaintiff filed a complaint in California state court against WellPoint Health Network
s
and certain related entities
,
i
ncluding one of the acquired NextRX subsidiaries (collectively “WellPoint”), Express Scripts, and other PBMs
alleging his right to sue under California’s Unfair Competition Law (UCL). This case purported to be a class
action against the PBM defendants on behalf of self
-
ff
funded
,
no
n
-
ERI
S
A healt
h
plans; and individuals with no
prescription drug benefits that have purchased drugs at retail rates. On May 6, 2004, WellPoint invoked an
arbitration clause and the case against WellPoint was stayed and sent to arbitration. On February 24, 2006,
Pl
a
intiff served an arbitration demand against WellPoint alleging that numerous WellPoint business practices
v
iolated the UCL and making claims on behalf of California residents who paid taxes, California residents who
we
r
e
be
n
e
fi
c
iari
es
o
f n
on
-
ERISA health plan
s
,
and California residents who obtained prescription benefits fro
m
non
-
ERISA health plans. WellPoint filed its response to the arbitration demand, but nothing further has occurred
i
n the last two years. Plaintiff filed a motion to dismiss the original co
u
rt action against ESI on September 18,
2008, so ESI is no longer a party to this suit
.
I
n a
dd
iti
on
t
o the foregoing matters
,
in the ordinary course of our business there have arisen various legal
proceedings, investigations or claims now pending against
us
or
ou
r
subs
i
d
iari
es.
Th
e
e
ff
ec
t
o
f th
ese
a
c
ti
o
n
s
o
n f
u
t
u
r
e
financial results is not subject to reasonable estimation because considerable uncertainty exists about the outcomes. Where
i
nsurance coverage is not available for such claims, or in our judg
m
ent
,
is not cost
-
effective, we maintain self
-
ff
i
n
su
ran
ce
r
eserves to reduce our exposure to future legal costs, settlements and judgments related to uninsured claims. Our self
-
i
nsured reserves are based upon estimates of the aggregate liability for the cost
s
o
f
u
nin
su
r
ed
c
laim
s
in
cu
rr
ed
an
d
th
e
r
etained portion of insured claims using certain actuarial assumptions followed in the insurance industry and our historical
experience. It is not possible to predict with certainty the outcome of these claims, and we can give no assurance that an
y
losses in excess of our insurance and any self
-
ff
i
n
su
ran
ce
r
ese
r
ves
w
ill n
o
t
be
mat
e
rial
.
It
e
m 4
—
Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of security holders during the fou
r
th quarter of 20
0
9
.