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Six Blue Cross and Blue Shield insurers sued CVS Health on Wednesday, claiming the pharmacy overcharged them for generic drugs. The plaintiffs — which include Blues plans in Alabama, Florida, Minnesota, North Carolina, North Dakota and Kansas City — said CVS charged them a higher price for generic prescriptions than customers paid in cash.

Pharmacies are supposed to charge insurers the “usual and customary” price for generic medications, determined in a previous lawsuit against Kmart to be the standard cash price paid by customers. The Blues plans would pay the price negotiated by their pharmacy benefit managers for drugs, unless the usual and customary price is lower than that negotiated rate.

The plaintiffs alleged that CVS misrepresented the usual and customary rate for these drugs by offering a much lower price to customers that participated in its cash discount programs. The company began offering its Health Savings Pass program in 2008, which was later transitioned to its Value Prescription Savings Card program.

By paying a $15 membership fee, customers that paid in cash would have access to more than 400 generics at the price of $12 for a three-month supply. According to the complaint, CVS frequently offered the same cash price to customers who were not enrolled in one of these programs.

The prices that the Blues plans were charged for these same medications was “significantly higher” than the cash prices paid by customers, the plaintiffs said. For example, multiple Blues plans reported overpaying for Nadolol, a generic to treat high blood pressure. BCBS of North Carolina reported paying $257 for the drug, while cash-paying customers in the savings program paid $12, according to court documents.

“Third-party payors then reimbursed CVS based on those higher, inflated prices—instead of the actual, lower, prices CVS offered to the general public, including through its Cash Discount Programs,” the complaint stated.

The Blues plans said this not only caused them to overpay for prescription claims, but it also prevented them from getting better drug prices for their members.

In an emailed statement, CVS Health denied the allegations, saying they were “completely without merit.”

“The CVS Pharmacy Health Savings Pass was a membership program intended for customers who either did not have insurance or chose not to use insurance. The Value Prescription Savings Card Program is a prescription drug card offered and administered by a third-party,” the company stated. “Generic drug prices available through these programs were not the usual and customary price charged by CVS Pharmacy, nor the price available to the general public. Neither of these programs were in any way concealed, nor fraudulent.”

The plaintiffs are seeking injunctive relief, damages, and an award of twice the amount they were overcharged.

Other pharmacy chains have recently faced similar lawsuits. In 2018, Rite Aid was hit with a class action lawsuit for allegedly charging insurers more than it charged customers under its cash membership plans. Walgreens faced a class action lawsuit for similar allegations that year.

Photo credit: zimmytws, Getty Images

If you haven’t been following the saga that is the New York bar exam situation, you can catch up here. To give you the 30-second summary: COVID-19 → New York bar exam postponed until September → Seats limited to first-time takers who went to law school in New York → Everyone else becomes angry → NY BOLE basically says “We’ll get back to you” → Three weeks pass, which brings us to the present. 

Yesterday, the New York Board of Law Examiners (NY BOLE) opened up a second application period for the September 2020 New York Bar Exam.  According to the NY BOLE website: 

A second application period will be open from June 2 through June 12. Beginning on Tuesday, June 2 at 10:00 A.M. Eastern Time, applications will be accepted from any candidate who graduated with a J.D. degree from an ABA-accredited law school located outside of New York, and who has not previously sat for a bar exam in any U.S. jurisdiction. The application period will close on Friday, June 12 at 10:00 A.M. Eastern Time. Please note that, at this time, seating cannot be guaranteed to candidates who register during this application period.

Before, in the old days of last month, I gave the NY BOLE the benefit of the doubt. The situation with COVID-19 was rapidly changing and they needed to make decisions quickly. It is fully possible that they hadn’t thought their decisions all the way through and that they would realize the damage they were doing by excluding repeat takers from taking the bar exam and come up with a solution. 

But, this has been going on for months now. And, the time has come to start preparing for the September bar exam. So, they are literally running out of time to fix this. 

I, for one, would love to know their reasons for categorically excluding repeat takers  (and foreign-educated attorneys who are only allowed to sit for the bar exam in a handful of jurisdictions). What makes first-time takers from New York law schools more deserving of a seat? What makes first-time takers from out-of-state law schools more worthy? What factored into these decisions? 

Have they considered that minority students statistically fail the bar exam at higher rates? And that this rule, as applied, is having a disparate impact based on race? Is this a gross oversight or an intentional decision? We don’t know because they’ve said nothing. They have given no explanation or reasoning for the prioritization of first-time takers. However, they are literally excluding the most marginalized groups of test-takers, and they aren’t telling us why. 

My frustration with this situation is apparent, but also irrelevant as this problem doesn’t actually affect me. So, I talked to two people who are being directly affected and got their thoughts on the situation. 

Danney Salvatierra and Felicia Roman are two law graduates who were both hoping to retake the bar exam in New York this year. Both Danney and Felicia informed me that they are experiencing increased anxiety as a result of the NY BOLE’s decision to exclude them from taking the bar exam. Felicia spoke to me about the increased financial burden being placed on her to sit for the exam in another jurisdiction, and Danney expressed concern about having to travel to another jurisdiction amid COVID-19. 

When asked what message they felt the NY BOLE was currently sending to repeat takers, Danney responded “that we are not that important to the legal community. They’re making us feel invisible.” Felicia said that “the message I think the NY BOLE is sending with this new policy is that repeat takers DO NOT matter and that we are not good enough to even consider us in this policy. It is sending a very debilitating message to repeat takers and has the potential of causing major insecurities within us.”

I’d like to thank both Danney and Felicia for publicly sharing their stories. They are giving a face and a voice to the thousands of people being impacted by this situation. It can be easy to ignore numbers on a page as just statistics. But, these are real people, whose real lives and careers are being negatively impacted by the decision of the NY BOLE to exclude repeat takers from the September bar exam. 

What remains evident to me is that this current situation is unacceptable, and the NY BOLE needs to either administer the bar exam online or find enough seats to offer the test to every qualified applicant in person. Period.

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Kerriann Stout is a millennial law school professor and founder of Vinco (a bar exam coaching company) who is generationally trapped between her students and colleagues. Kerriann has helped hundreds of students survive law school and the bar exam with less stress and more confidence. She lives, works, and writes in the northeast. You can reach her by email at info@vincoprep.com.

There are a lot of changes going on at Boies Schiller. Most of these changes have been a deliberate effort to move away from the eat-what-you-kill model that resulted in a series of associated fiefdoms and towards a more traditional Biglaw model.

The latest change that puts the firm more in line with its peers is a radical departure on their bonus structure. For a long time, the firm prided itself on its generous bonus formula that includes a revenue share component that affords associates a cut of the matters they work on, which for contingency work can be massive.

According to a report from Law.com, Boies Schiller is making a move towards market rate bonuses:

In a statement, co-managing partner Nick Gravante confirmed that Boies Schiller is adopting a new associate compensation system, although he did not provide further details about the previous formula system or that the new system would be market-based. He said the compensation changes are a “positive step in the firm’s ongoing restructuring, which ensure that associate compensation is aligned with the firm’s strategic goals.”

Gravante also confirmed that current Boies Schiller associates may choose which bonus structure to be compensated with. ”We believe associates are substantially benefited by having the option of staying with our current system or choosing the new system,” he added.

Though Gravante was tightlipped about the new structure, sources at the firm say the scale is “slightly higher than the market rate set by Milbank” last year.

There have also been criticism of Boies’s bonus structure’s opacity. And while junior associates often make out better than peers at other firms, senior associates often compare less favorably than the market standard. And one slow year at the firm can have compounding effects:

Associates who did not hit their minimum hours would be put “in the red,” meaning that they had to make up the money and hours the following year. One former Boies Schiller attorney equated this rollover to a “debtor’s prison.”

The new compensation system is an effort to bring more transparency to the firm, where office managing partners and executive committee members are left in the dark regarding equity and compensation, sources close to the firm said.

It’ll be very interesting to see exactly what the firm’s bonus scale is when the end of 2020 finally rolls around.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

“Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?” asks the 6th Circuit in an opinion quoted by Justice Kavanaugh in his dissent from the majority’s refusal to enjoin restrictions on churches in California.

According to Justices Kavanaugh, Alito, Thomas, and Gorsuch, church attendance involves quickly walking through the pew before dropping a couple of bills on the collection plate en route to the golf course. Similarly, the arrival of the Amazon delivery truck prompts an immediate congregation of neighbors to assemble in close proximity for an hour or two huddled in someone’s rumpus room, raptly absorbing her brave counsel and singing hymns of praise.

It’s quite an assumption, and one that Justice Roberts was unwilling to go along with, siding with the four liberal Justices late Friday night to uphold California’s emergency coronavirus restrictions capping church attendance at 25 percent of maximum occupancy or 100 people.

Late Friday night, the Supreme Court released a 5-4 decision in South Bay United Pentecostal Church v. Gavin Newsom, upholding the California governor’s emergency restrictions and signaling that the court is unlikely to side with the Justice Department’s push to treat stay-at-home orders as violations of the First Amendment.

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment,” he wrote for the majority. “Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”

Which acknowledges the fact that, here on planet earth, churches are the loci of multiple “super spreader” events, and grocery stores are not. Because you’re highly unlikely to inhale enough droplets to get infected with the virus in the five seconds when you scurry past someone else in the pasta aisle, but among 61 choir members who attended a March 10 choir practice in Skagit County, Washington, 53 were diagnosed with the virus after 2.5 hours of deep breathing in a confined space.

But apparently, four Justices who haven’t assembled in the same room for months and who are taking the unprecedented step of hearing oral arguments over Zoom, disagree, writing in dissent, “In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment.”

Because CHURCH is to MOVIE THEATER as GROCERY STORE is to … RELIGIOUS PERSECUTION! Indisputably.

ON APPLICATION FOR INJUNCTIVE RELIEF [SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL., 590 U. S. ____ (2020) (May 29, 2020)]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

We invite you to join a conversation between Myisha Frazier (Google Legal Director) and Catherine Kemnitz (Axiom SVP, Head of Legal) on Thursday, June 4th, 2020 at 2 p.m. ET / 11 a.m. PT.

This free webinar is intended to provide the best practices for building a values-based foundation to enable resilient legal teams, including but not limited to:

• Prioritizing work for the business for an evolving landscape;
• Realigning workstreams to shifting priorities; and
• Empowering talent to seize leadership opportunities.

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A billion-dollar Biglaw firm has announced even more COVID-19 austerity measures. Reed Smith, which already announced salary cuts, told associates today that their salary cuts would be extended through the end of the year and that they’d be deeper than before.

Back in March, the firm announced that they were slowing partner cash distributions, emphasizing that business is good, but made the move as a “precaution” and “bracing for the short-term and potential long-term economic impacts of COVID-19” before even more partner compensation cuts were announced. Then in April, they announced associate pay will be cut by 15 percent for May through the end of August.

Now we hear that the salary cuts will continue through the end of the year, and they’re getting bigger. According to sources at the firm:

Reed Smith held an all associates call today. The previously announced 15% salary cuts for associates will continue until August, and from August to December it will increase to 20%. Associates are pissed, especially those who have remained extremely busy and are billing hours normally throughout this time.

Sandy Thomas, Reed Smith’s global managing partner, provided the following statement outlining the austerity measures, which contextualizes the pay cuts on an annualized basis (which reflects a smaller number than the 20 percent cuts to their paycheck that associates can expect from August to December):

Since the beginning of the COVID-19 pandemic, our priorities have always been to protect the health and wellbeing of our people, to safeguard jobs wherever possible, to provide the highest quality service to our clients, and to manage the firm prudently. As a result of the prolonged economic uncertainty caused by COVID-19, we have made the difficult decision to take further actions to ensure our business emerges from the pandemic in a position of strength.

Reed Smith’s owners, rightly, continue to bear the largest share of the financial burden of the firm’s actions. As we continue to manage the challenges created by the crisis, today we are taking further actions that affect the firm’s lawyers and professional staff across the United States, Europe and the Middle East. They include:

· The previously implemented lawyer compensation reductions will be extended through the end of the year. On an annualized basis, compensation reductions will be 14% for Fixed Share Partners, 12.5% for Counsel, and 12% for Associates.

· Most professional assistants and other select professional staff will move to a four-day week, with corresponding compensation reductions, and a small number of employees will be furloughed on a temporary basis.

· The salaries of professional staff annually earning more than $100,000 (or equivalent), who are not subject to other employment actions, will be reduced nearly 6% on an annualized basis.

· In London, the firm’s largest office, we are initiating a targeted redundancy process that will impact a small number of lawyers and staff.

The firm expects most of these measures to be temporary, and during this time, healthcare and other benefits will remain intact for all lawyers and staff.

In Asia, similar actions affecting a small percentage of lawyers and professional staff were already undertaken earlier this year.

Like all well-run businesses, during the normal course of managing the firm we continually evaluate the size and shape of our global organization to ensure that it matches the needs of our clients. This practice is as important as ever during the pandemic.

If your firm or organization is slashing salaries, closing its doors, or reducing the ranks of its lawyers or staff, whether through open layoffs, stealth layoffs, or voluntary buyouts, please don’t hesitate to let us know. Our vast network of tipsters is part of what makes Above the Law thrive. You can email us or text us (646-820-8477).

If you’d like to sign up for ATL’s Layoff Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the layoff alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each layoff, salary cut, or furlough announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Over the past few days, protestors and journalists have been met with unjust and illegal police brutality. History has taught us that the police who commit these acts will not be prosecuted. The videos below highlight the divergent rules that apply to police compared to the rest of the populace, particularly people of color. The rule of law is an aspiration, and one that centuries-old institutions like organized police forces purport to champion. Until the law is applied equally to those institutions — especially when they use undue force against those standing up against, and highlighting, institutional racism — we will never break the cycle of injustice.

People across the United States continue to document this police brutality. Take a look for yourself.

Denver, Colorado

Atlanta, Georgia

Louisville, Kentucky

Minneapolis, Minnesota

New York City, New York

Erie, Pennsylvania

Salt Lake City, Utah

Richmond, Virginia

Seattle, Washington

Compilation Of Additional Videos

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Kyle McEntee is the executive director of Law School Transparency, a 501(c)(3) nonprofit with a mission to make entry to the legal profession more transparent, affordable, and fair. You can follow him on Twitter @kpmcentee and @LSTupdates.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

“First there was his self-pity — everything was someone else’s fault — and then there was his self-will — no one must oppose him on anything at any time ever.”

I just finished reading Antonia Fraser’s 1994 book, The Wives of Henry VIII, and I found that description of King Henry VIII — he of the six wives, two beheaded, and the English Reformation) on page 336. I just had to share it with you.

But that’s an aside showing how our zeitgeist infects even my recreational reading. (It may also show more than you care to know about my idea of recreational reading, but I suppose that’s another story, too.)

The substance of this post is about the cadence of meetings.

Cadence is a communications concept. If a group is working on a project, the group should meet frequently to make sure the group maintains its momentum. If a group does general oversight — the board of directors — then the group should meet less frequently.

The desire to set a cadence means, I fear, that people frequently set meetings for no reason at all.

“The appropriate cadence for this team to meet is once per month. That’s about enough for the nature of the work that the group performs.”

What happens?

“Oh, my God! The next meeting in the cycle is set for this Wednesday! We had forgotten about that. We don’t have an agenda. Can anybody gin up a few speakers to talk about something that’s arguably relevant to the group so that we fill the time?”

That conversation is routine. You hear it before many, many meetings.  And it’s an admission of defeat: “We don’t really have anything to talk about, but we have to gin up irrelevant crap to fill the time.”

At the end of the meeting, of course, everyone will praise the meeting: “Great meeting! Good speakers! Glad we did it!” Praising the meeting is no skin off the attendees’ teeth, and it’s better for your career to praise meetings than to criticize them (or to say that the meetings were entirely unnecessary). But don’t ignore the truth, despite what people say: People (or at least the people you’d like to retain) couldn’t have helped noticing that there was no reason at all to hold the meeting, no one learned anything of importance, and everyone just lost an hour out of their day.

I’m not opposed to all meetings.

Sometimes you meet because a project demands that people discuss what’s happening. That’s an extraordinarily good reason for a meeting.

I don’t mind quarterly oversight meetings. If all the group is doing is oversight, then surely some things that require oversight have occurred in the prior three months.

Sometimes scheduling meetings regularly serves a purpose, even when the participants really have nothing to discuss: “We have 1,000 illegal contracts!  We’d better get them corrected pronto. We must assign someone to be responsible for this task, and we must then schedule weekly meetings between (1) the person responsible for the task and (2) a very important person in the firm, at which we’ll discuss the progress being made on the task.” Those meetings serve a purpose: The person doing the task understands that he’s under the gun and, more importantly, he understands that God is watching him. “God is watching” meetings serve a purpose, even if the job could be accomplished without them.

In a world when we’re allowed to meet in person, meetings can improve collegiality, even if the agenda is light.

But please consider canceling meetings when you realize that you have a meeting scheduled for next week and nothing to communicate. Canceling the meeting is an entirely legitimate alternative to burdening your audience with drivel because you have nothing to say.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.