CVS’s abrupt dismissal of SCOTUS case was surprise to opposing counsel

By Alison Frankel: For Complete Post, click here…

Public interest lawyer Gerald Flanagan of Consumer Watchdog was deep in preparations for his first-ever U.S. Supreme Court argument when he saw what he called a “strangely worded” press release issued Wednesday by CVS Pharmacy Inc, Flanagan’s opponent in a case scheduled to be argued on Dec. 7.

The press release touted CVS’s partnership with disability rights groups to assure equal access to healthcare. That’s the issue in Flanagan’s case, in which several John Doe plaintiffs with HIV challenged a CVS policy that required them to receive their medication only by mail, not in person at store pharmacies. CVS’s argument at the Supreme Court has been that the ACA and a 1973 predecessor bar only intentionally discriminatory policies, not those that have a disparate impact on disabled people.

The press release didn’t exactly renounce that argument, but it dropped a bomb in its second paragraph: CVS said it was dropping the Supreme Court case.

That was news to Flanagan and his co-counsel from Whatley Kallas and Public Citizen. “We got no heads up before the press release,” Flanagan said. In fact, he said, the first official word he received about the demise of the case was an email early Thursday morning from CVS counsel Lisa Blatt of Williams & Connolly.

“There is a selfish disappointment,” Flanagan told me Friday. “But that’s irrational. We won unanimously at the 9th [U.S. Circuit Court of Appeals]. I’m relieved that our clients are not at risk of losing at the Supreme Court.”

So why did CVS ditch the case just weeks before oral argument? CVS counsel Blatt declined to comment. CVS spokespeople provided an email statement that’s short on specifics: “We’ve agreed to pursue policy solutions in collaboration with the disability community to help protect access to affordable health plan programs that apply equally to all members,” the statement said.

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