Express Scripts Asks Judge to Toss Medco Deal Objection

Express Scripts Inc. (ESRX) asked for court dismissal of a lawsuit by pharmacy trade groups trying to prevent its $29.1 billion takeover of Medco Health Solutions Inc. (MHS)

The groups sued St. Louis-based Express Scripts and Medco March 29, claiming the transaction would violate U.S. antitrust laws by reducing competition and raising consumer prices. They filed an injunction request the next day.

The acquisition was first agreed upon in July. Express Scripts completed its purchase of Medco on April 2 while the request for an order blocking the deal was still before U.S. District Judge Cathy Bissoon in Pittsburgh.

“Plaintiffs spent the intervening months between the announcement and consummation of the merger attempting to convince the government to challenge the transaction, but failed to take any action on their own to challenge the merger in court,” Express Scripts and Medco told Bissoon in papers filed yesterday.

‘Inexcusable’ Delay

The merging companies called their opponents’ delay “inexcusable,” and said the trade groups had failed to support their claim of irreparable harm.

The deal creates the largest pharmacy benefits manager in the U.S. Express Scripts and Franklin Lakes, New Jersey-based Medco act as middlemen among drugmakers, pharmacies and health- plan sponsors to manage patients’ benefits.

The Federal Trade Commission approved the purchase by a 3-1 vote on April 2. Clearance was unconditional, with the majority of the commissioners saying their eight-month review of the deal found “a competitive market for pharmacy benefit management services.”

The National Association of Chain Drug Stores, the National Community Pharmacists Association and independent pharmacies had filed their emergency request to “hold separate Medco’s assets and operations,” hours after the acquisition closed.

Bissoon has scheduled a hearing on April 10 for oral arguments on the groups’ request to block the deal.

Chris Krese, a spokesman for the Alexandria, Virginia-based National Association of Chain Drug Stores, declined to immediately comment. Valerie Briggs, a spokeswoman with the Alexandria, Virginia-based National Community Pharmacists Association, didn’t immediately return calls or e-mails seeking comment after regular business hours.

The case is National Association of Chain Drug Stores v. Express Scripts, 2:12-cv-00395, U.S. District Court, Western District of Pennsylvania (Pittsburgh).

To contact the reporters on this story: Andrew Harris in Chicago at aharris16@bloomberg.net; Tom Schoenberg in Washington at tschoenberg@bloomberg.net

To contact the editor responsible for this story: Andrew Dunn at adunn8@bloomberg.net

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