1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN DOE ONE, et al., Case No. 18-cv-01031-EMC

8 Plaintiffs,

ORDER DENYING DEFENDANTS’

9 v. MOTION TO DISMISS

10 CVS PHARMACY, INC., et al., Docket No. 184 11 Defendants.

12 13 14 Plaintiffs bring this putative class action alleging that five CVS entities—Caremark, 15 L.L.C., Caremark PCS Health, L.L.C, CVS Pharmacy, Inc., Garfield Beach CVS, L.L.C., and 16 Caremark California Specialty Pharmacy, L.L.C. (collectively, “Defendants”)—have 17 discriminatorily denied them benefits under their employer-offered prescription drug benefit plans. 18 Plaintiffs allege that their benefit plans allow them to obtain their HIV/AIDS medications at 19 favorable “in-network” prices only via mail or a CVS pharmacy. Compared to the non-CVS 20 “community pharmacies” from which Plaintiffs were previously able to obtain their medications, 21 the mail order and CVS Pharmacy pickup options do not offer the same level of privacy, 22 convenience, reliability, and service. 23 The Ninth Circuit found that Plaintiffs adequately alleged that they were denied 24 meaningful access to their prescription drug benefits, as required to state a claim for disability 25 discrimination under Section 1557 of the Affordable Care Act (ACA), but remanded the case so 26 that this Court could determine whether Defendants received the requisite “Federal financial 27 assistance” necessary to the application of Section 1557. Doe v. CVS Pharmacy, Inc., 982 F.3d 1 Complaint for failure to state a claim on the basis that no single Defendant CVS entity receives the 2 requisite federal funding and is responsible for the allegedly discriminatory health benefits 3 program. 4 For the reasons discussed below, the Court DENIES Defendants’ motion to dismiss. At 5 this early stage in the proceedings, and drawing all reasonable inferences in Plaintiffs’ favor, 6 Plaintiffs have alleged that the Defendant entities have collectively designed and implemented the 7 allegedly discriminatory program at issue, and that all Defendants are directly or indirectly 8 federally funded through one or more related arms of the enterprise. To permit the CVS entities to 9 escape responsibility as a result of the establishment of corporate structures which cabin their 10 functions would exalt form over substance, and would be antithetical to the overarching purpose 11 of the anti-discrimination provision of the ACA. Additionally, even under the more narrowly 12 worded earlier civil rights statutes referenced in the ACA, the Defendant CVS entities would be 13 considered direct or indirect recipients of federal funding. The Court finds that Plaintiffs have 14 plausibly pleaded that Defendants engage in a “health program or activity, any part of which is 15 receiving Federal financial assistance” under the ACA. 16 I. FACTUAL BACKGROUND 17 Plaintiffs1 are five individuals, proceeding anonymously, who take medicines that treat 18 HIV/AIDS. Docket No. 162 (Second Amended Complaint, or “SAC”) ¶¶ 9–13. Plaintiffs 19 received prescription drug coverage through health plans sponsored by their employers, who once 20 were, but no longer are, defendants in this case. See Docket No. 143 (December 12, 2018 Order). 21 Plaintiffs have brought a claim under Section 1557 of the ACA based on Defendants’ allegedly 22 discriminatory benefits plans. 23 A. CVS’s Prescription Drug Benefits Plans 24 The SAC alleges the following regarding CVS’s prescription drug benefits plans (the 25 “Program”). Under the terms of the Program, HIV/AIDS medications are classified as “specialty 26 1 All Plaintiffs are proceeding under pseudonyms due to the sensitive nature of this action. SAC at 27 1 n.1. Two of the Plaintiffs have passed away and the executors of their estates have substituted 1 medications” and are subject to specific restrictions. SAC ¶¶ 1, 95, 108. In order to qualify for 2 lower “in-network” drug prices, Plaintiffs must obtain their HIV/AIDS medications from 3 Caremark California Specialty Pharmacy (“CSP”), which delivers medications in one of two 4 ways: by mailing the medications to Plaintiffs directly, or by mailing them to a CVS pharmacy for 5 pickup. Id. ¶¶ 1, 15, 16. Otherwise, Plaintiffs “must either pay more out-of-pocket or pay full- 6 price” to procure their HIV/AIDS medication from an “out-of-network” community pharmacy. Id. 7 ¶¶ 1, 69. All drugs designated in the benefit plans as “specialty medications” are subject to the 8 Program’s restrictions, not just drugs that treat HIV/AIDS. Id. ¶¶ 44, 82. Plaintiffs allege that 9 HIV/AIDS patients are “disproportionately impacted by the Program,” due to the “complex nature 10 of their disease and medications.” Id. ¶¶ 93–95. 11 Before their employers enrolled Plaintiffs in the Program, each of the Plaintiffs was able to 12 purchase their HIV/AIDS medications through their benefit plan from any in-network pharmacy, 13 including non-CVS pharmacies, with full insurance benefits. See id. ¶¶ 9–13. Many of them had 14 long obtained their medications from their local “community pharmacies” and had developed 15 relationships with their pharmacists. Id. These in-person appointments with expert pharmacists 16 who were familiar with Plaintiffs and their medical histories serve a critical function because the 17 pharmacists can “detect potentially life-threatening adverse drug interactions and dangerous side 18 effects, some of which may only be detected visually”; immediately prescribe new drug regimens 19 as Plaintiffs’ conditions progress and evolve; and provide essential counseling to help Plaintiffs 20 and their families navigate the challenges of living with a chronic condition. Id. ¶¶ 71, 81–85, 90. 21 Since being enrolled in the Program, however, Plaintiffs have faced numerous difficulties 22 and indignities in their efforts to obtain their HIV/AIDS medications. Those who opted to have 23 the medication mailed to their homes have experienced delivery problems. Id. ¶¶ 25, 47, 52. For 24 example, in some instances the packages containing their medications were left “baking in the 25 afternoon sun,” which could “quickly degrade the potency and stability” of the medication. Id. ¶ 26 25. Out of concerns about parcel theft, some Plaintiffs have had to wait at home on the days their 27 medications are scheduled for delivery, resulting in missed doctor appointments and missed days 1 Pharmacies have also encountered problems. For some, the closest CVS Pharmacy is many miles 2 away. Id. ¶ 35. Some have had to make multiple trips to and from a pharmacy to deal with 3 incorrectly filled prescriptions. Id. Others have experienced “CVS personnel shout[ing] the name 4 of their HIV/AIDS Medications across the room in front of other customers, raising severe privacy 5 concerns.” Id. ¶ 77. Many Plaintiffs have reached out to CVS in an attempt to resolve their 6 problems, only to encounter bureaucracy and long wait-times. See id. ¶¶ 28, 36, 41–42, 46. 7 Reportedly, CVS representatives also “appear to have no specialized knowledge about HIV/AIDS 8 Medications or the concerns of HIV patients.” Id. ¶¶ 40, 49, 86. 9 B. Defendants’ Organizational Structure 10 The Second Amended Complaint names both pharmacies and pharmacy benefit managers 11 as defendants: CVS Pharmacy, Inc., CSP, and Garfield Beach CVS, L.L.C. are pharmacies 12 (collectively, the “Pharmacy Defendants”), and Caremark, L.L.C. and Caremark PCS Health, 13 L.L.C. are pharmacy benefit managers, or PBMs (collectively, the “PBM Defendants”). Docket 14 No. 184 (Motion to Dismiss, or “MTD”) at 1. According to the SAC, Defendants “act as agents of 15 one another and operate as a single entity for purposes of administering pharmacy benefits and 16 providing prescription drugs to health plans and health plan members.” SAC ¶ 18. 17 CVS Health Corporation, which is a parent company to all Defendants, was originally a 18 defendant but was voluntarily dismissed by Plaintiffs in May 2018. See Docket No. 63 19 (Stipulation of Voluntary Dismissal) at 1. According to information found in CVS Health 20 Corporation’s 2020 Form 10-K filing with the United States Securities Commission, Defendant 21 CVS Pharmacy, Inc. is a direct subsidiary of CVS Health Corporation.2 CVS Pharmacy, Inc. in 22 turn, is a parent company of the other Pharmacy Defendants and the PBM Defendants. See SAC ¶ 23 135 (establishing that CVS Pharmacy, Inc. is a parent company of Defendant CaremarkPCS 24

25 2 The authenticity of the information contained within CVS Health Corporation’s 10-K is not in dispute, and the SAC relies on this information. See, e.g., SAC ¶¶ 118 & n.72, 121, 132, 134 26 (quoting the 10-K). As a result, the Court may consider the information found in the 10-K without converting this motion to a motion for summary judgment. Parrino v. FHP, Inc., 146 F.3d 699 27 706 (9th Cir. 1998) (“[A] district court ruling on a motion to dismiss may consider a document the 1 Health, L.L.C.); MTD at 5 & n.8 (explaining that CVS Pharmacy, Inc. is the indirect parent 2 company of the two PBM Defendants and Garfield Beach CVS, and that CVS Pharmacy operates 3 CVS retail pharmacy locations, directly and through subsidiaries, throughout the country); see 4 also Docket No. 184-3 (“Form 10-K”) at 192–201 (listing the subsidiaries of CVS Pharmacy, 5 Inc.). In addition to the four named Defendants, Defendant CVS Pharmacy, Inc. appears to have 6 hundreds of other subsidiaries. See Form 10-K at 192–201. 7 CVS Health Corporation “holds itself and its network of subsidiaries out to the public as 8 . . . an integrated health care company that provides a wide range of healthcare services.” SAC ¶ 9 119. Under CVS Health Corporation’s “vertically integrated pharmacy-PBM model,” some of 10 these healthcare services are provided by CVS pharmacies, while others are provided by CVS 11 PBMs. Id. ¶¶ 124, 126, 130, 132. PBMs contract with health plans sponsored by employers, 12 insurers, and government agencies to administer the prescription benefit offered under the client’s 13 health plan. Form 10-K at 2–3. Services that typically fall within the PBM segment include “plan 14 design offerings and administration, formulary management, [and] retail pharmacy network 15 management services,” among other things. SAC ¶ 132. CVS pharmacies, on the other hand, 16 “sell[] prescription drugs and a wide assortment of health and wellness products and general 17 merchandise, provide[] health care services . . . [and] provide[] medical diagnostic testing,” among 18 other things. Id. 19 C. Defendants’ Roles in the Program 20 The SAC alleges that the Pharmacy Defendants and the PBM Defendants are both 21 “directly responsible for the discriminatory conduct at issue in the Complaint.” SAC ¶ 131. CSP, 22 one of the Pharmacy Defendants, is responsible for filling Plaintiffs’ prescriptions and shipping 23 out medications. Id. ¶ 15. Garfield Beach CVS, L.L.C. operates CVS retail pharmacies in 24 California. Id. ¶ 17. Caremark, L.L.C., a PBM Defendant, administers the prescription drug 25 benefits under Plaintiffs’ plans. Id. ¶¶ 15, 16. Caremark, L.L.C. “owns and exercises control over 26 CSP.” Id. ¶ 15. “[A]s a prescription drug benefit administrator,” one of Caremark, L.L.C.’s roles 27 is to “establish and contractually control which, if any, non-CVS pharmacies are ‘in network,’ 1 insurance coverage.” Id. ¶ 69. Caremark, L.L.C. established the “Specialty Pharmacy 2 Distribution Drug List” that imposed the relevant restrictions on Plaintiffs’ HIV/AIDS 3 medications. Id. ¶¶ 16, 95. 4 The SAC alleges that Defendants collectively worked together to control and execute the 5 Program. The Program’s restrictions with regard to the HIV/AIDS medications are described as 6 “acts and decisions exclusively in the control and discretion of” Defendants. Id. ¶ 80. Defendants 7 “conspired” to secure “agreements as to each Plaintiff’s and Class Member’s health plan requiring 8 Class Members to use the wholly-owned [CSP] under the Program.” Id. ¶ 20. “[B]y forcing 9 enrollees to only obtain such medications through their sister co-conspirator and wholly-owned 10 subsidiary CSP,” Defendants keep “hundreds of thousands, if not millions, of dollars in 11 prescription fill fees, possible rebates, and other monies to themselves.” Id. ¶ 79. Defendants are 12 collectively alleged to have “control over the Program,” “control over whether community 13 pharmacies are designated as “out-of-network,” “control over cost-sharing issues and control over 14 CVS pharmacies.” Id. ¶ 155(b). Defendants are collectively alleged to offer “financial 15 inducements” to health plan sponsors—Plaintiffs’ employers—to enroll Plaintiffs in benefit plans 16 subject to the Program. Id. ¶ 2. 17 D. Defendants’ Receipt of Federal Funding 18 The SAC alleges that CVS Pharmacy, Inc. receives “Federal financial assistance” as part 19 of its participation in the Medicare Part D. program. Id. ¶ 135. Garfield Beach CVS, L.L.C. owns 20 and operates CVS retail pharmacies in California and receives Federal financial assistance under 21 the Medicaid 340B program, which subsidizes the cost of pharmaceuticals for low-income 22 individuals. Id. ¶¶ 136, 149. The Pharmacy Defendants and PBM Defendants (as part of the 23 Pharmacy Segment and Retail/LTC Segment of CVS Health Corporation) are “the intended 24 recipients of that government funding for purposes of providing health care services on behalf of 25 government agencies to qualified individuals.” Id. ¶ 150. 26 II. PROCEDURAL BACKGROUND 27 Plaintiffs filed their original class action complaint on February 16, 2018. See Docket No. 1 CaremarkRx, L.L.C. and subsequently filed an amended complaint. Docket Nos. 63, 75. On July 2 20, 2018, the original three CVS Defendants (CVS Pharmacy, Inc., CSP, and Caremark, L.L.C.) 3 moved to dismiss the amended complaint. Docket No. 87. On December 12, 2018, the Court 4 dismissed the amended complaint in its entirety and entered judgment for Defendants. Docket 5 Nos. 142, 143. On January 11, 2019, Plaintiffs appealed. Docket No. 146. 6 On December 9, 2020, the Ninth Circuit vacated the dismissal of (1) the ACA claim and 7 (2) the UCL claim to the extent it is predicated on a violation of the ACA, but affirmed dismissal 8 of all other claims. Doe, 982 F.3d at 1215. The Ninth Circuit remanded with instructions that this 9 Court address in the first instance whether Plaintiffs had adequately alleged Defendants’ receipt of 10 “Federal financial assistance.” Id. at 1212 n.2. On March 21, 2021, Defendants filed a petition for 11 a writ of certiorari, which was granted on July 2, 2021. See Docket Nos. 168, 170. On November 12 12, 2021, the U.S. Supreme Court dismissed the petition for a writ of certiorari after the parties 13 jointly stipulated to dismissal. Docket No. 176. 14 After remand, Plaintiffs filed the operative Second Amended Class Action Complaint on 15 March 31, 2021. Docket No. 162. The SAC added two additional CVS entities: Caremark PCS 16 Health, L.L.C., and Garfield Beach CVS, L.L.C. Id. On March 2, 2022, CVS moved to dismiss 17 the SAC. Docket No. 186. 18 III. LEGAL STANDARD 19 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 20 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 21 complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed. R. 22 Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s 23 decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550 24 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the 25 claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th 26 Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the 27 pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & 1 simply recite the elements of a cause of action [and] must contain sufficient allegations of 2 underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” 3 Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 4 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the Defendant is liable for the 6 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 7 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 8 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). 9 If it grants a motion to dismiss, a court is generally required to allow the plaintiff leave to 10 amend, even if no request to amend the pleading was made, unless amendment would be futile. 11 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246–47 (9th Cir. 1990). 12 In determining whether amendment would be futile, the court examines whether the complaint 13 could be amended to cure the defect requiring dismissal “without contradicting any of the 14 allegations of [the] original complaint.” Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 15 1990). 16 IV. DISCUSSION 17 Section 1557 provides in pertinent part that “[a]n individual shall not, on the ground 18 prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the 19 Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 20 U.S.C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the 21 benefits of, or be subjected to discrimination under, any health program or activity, any part of 22 which is receiving Federal financial assistance.” 42 U.S.C. § 18116(a). For an entity to be liable 23 under Section 1557, it must be both administering a “program or activity” as defined under 42 24 C.F.R. § 92.3(b), and a recipient of “Federal financial assistance.” See 42 U.S.C. § 18116(a). The 25 definition of “program or activity” under Section 1557 is broad, and encompasses “all of the 26 operations of entities principally engaged in the business of providing healthcare that receive 27 Federal financial assistance;” for any entity “not principally engaged in the business of providing 1 entity’s operations only to the extent that any such operation receives Federal financial 2 assistance.” 42 C.F.R. § 92.3(b). 3 Defendants move to dismiss on the basis that Plaintiffs have not stated a plausible claim 4 against any single Defendant. In particular, Defendants argue that Plaintiffs have not adequately 5 alleged that: (1) the PBM Defendants receive Federal financial assistance, and (2) the Pharmacy 6 Defendants are responsible for the allegedly discriminatory conduct in the Program. MTD at 6. In 7 short, under Defendants’ theory, no Defendant meets both criteria even though within the CVS 8 family federal funds are received and a program is structured which allegedly discriminates. 9 A. Defendants Have Not Waived Their Arguments Under Rule 12(g)(2) 10 As a threshold matter, Plaintiffs charge that because Defendants failed to challenge 11 whether “Plaintiffs sufficiently alleged a ‘health program or activity’ within the meaning of the 12 ACA” in their first motion to dismiss, they have foreclosed their ability to do so now. Docket No. 13 186 (“MTD Opp.”) at 10. Plaintiffs contend, under Rule 12(g)(2), Defendants have waived any 14 argument that the Pharmacy Defendants are not engaging in “a health program or activity” under 15 the ACA. 16 Rule 12(g)(2) prohibits a party from “raising a defense or objection that was available to 17 the party but omitted from its earlier motion,” except in certain circumstances that are not 18 applicable here. Fed. R. Civ. P. 12(g)(2). Plaintiffs are correct that, other than one section header 19 in Defendants’ initial motion to dismiss, Defendants did not raise this argument in their initial 20 motion to dismiss. In their first motion, Defendants asserted that “[t]he Amended Complaint does 21 not properly allege a health program or activity that receives Federal financial assistance.” See 22 Docket No. 87 (First Motion to Dismiss) (capitalization altered for clarity) at 12. But the problem 23 for Defendants is that this section of their motion focused specifically on whether Plaintiffs had 24 shown that the CVS entities received the requisite federal funding—Defendants did not address 25 whether any CVS entity was engaged in a “health program or activity” within the meaning of the 26 ACA. Id. at 13. In other words, Defendants did not initially argue that dispensing prescription 27 medications and providing pharmaceutical services did not constitute a “health program or 1 In their reply brief, Defendants counter that the question of whether the Defendant-entities 2 are engaged in “a health program or activity” is “inextricably intertwined” with whether they 3 received “Federal financial assistance.” Docket No. 188 (Reply) at 2. This appears accurate: the 4 basic question was raised even if the precise issues were not identified. 5 And in any event, two of the five Defendants were only named in the Second Amended 6 Complaint and have not filed any motion under Rule 12. See Reply at 2 n.1 (“CaremarkPCS 7 Health, L.L.C. and Garfield Beach CVS, L.L.C. . . . were only named in the Second Amended 8 Complaint and have not filed any motion under Rule 12.”). Because CaremarkPCS Health, L.L.C. 9 and Garfield Beach CVS, L.L.C. have not previously filed any motion under Rule 12, they cannot 10 be deemed to have waived the argument. See 3G Licensing, S.A. v. HTC Corp., No. 17-cv-1646, 11 2019 WL 2904670, at *3 (D. Del. July 5, 2019) (finding that newly added defendant had not 12 waived any arguments under Rule 12(g)(2) even where defendant was “related to or associated 13 with an original defendant”); see also Laydon v. Bank of Tokyo-Mitsubishi UFJ, Ltd., No. 12-cv- 14 3419, 2017 WL 1113080, at *3 (S.D.N.Y. Mar. 10, 2017); Lunnon v. United States, No. 16-cv- 15 1152, 2020 WL 1820499, at *6 (D.N.M. Feb. 21, 2020), report and recommendation adopted, No. 16 16-cv-1152, 2020 WL 1329821 (D.N.M. Mar. 23, 2020). 17 It is appropriate for the Court to fully address the arguments by all Defendants. Rule 18 12(g)(2) should be interpreted in light of Rule 1. See In re Apple iPhone Antitrust Litig., 846 F.3d 19 313, 318 (9th Cir. 2017) (“We read Rule 12(g)(2) in light of the general policy of the Federal 20 Rules of Civil Procedure, expressed in Rule 1.”). Rule 1 dictates that the Federal Rules should be 21 construed “to secure the just, speedy, and inexpensive determination of every action and 22 proceeding.” Fed. R. Civ. P. 1. See In re Apple, 846 F.3d at 318 (“Denying late-filed Rule 23 12(b)(6) motions and relegating defendants to the three procedural avenues specified in Rule 24 12(h)(2) can produce unnecessary and costly delays, contrary to the direction of Rule 1.”). And in 25 any event, even if the three original Defendants failed to raise this argument in the original motion 26 to dismiss, these Defendants would not be barred from making this same argument in a Rule 12(c) 27 motion. Rule 12(h)(2) expressly provides that “[f]ailure to state a claim upon which relief can be 1 pleadings. See Fed. R. Civ. P. 12(h)(2)(B); see also Legal Additions LLC v. Kowalski, No. 08-cv- 2 2754-EMC, 2010 WL 335789, at *2 (N.D. Cal. Jan. 22, 2010) (converting Rule 12(b)(6) motion 3 into a Rule 12(c) motion and noting that the legal standards for 12(b)(6) and 12(c) motions are 4 “essentially the same”). 5 The Court will thus consider the merits of Defendants’ argument. 6 B. Section 1557 of the ACA Broadly Applies to any Health Program or Activity, Any Part of 7 Which Receives Federal Funding 8 Section 1557 provides as follows:

9 Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited 10 under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 11 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, 12 be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving 13 Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is 14 administered by an Executive Agency or any entity established under this title (or amendments). 15 16 42 U.S.C. § 18116(a) (emphasis added). 17 Additionally, the implementing regulations for Section 1557 provide that:

18 As used in this part, “health program or activity” encompasses all of the operations of entities principally engaged in the business of 19 providing healthcare that receive Federal financial assistance . . . . For any entity not principally engaged in the business of providing 20 healthcare, the requirements applicable to a “health program or activity” under this part shall apply to such entity’s operations only 21 to the extent any such operation receives Federal financial assistance. . . 22 23 45 C.F.R. § 92.3(b) (emphasis added). 24 To state a claim under Section 1557, then, Plaintiffs must plausibly allege that each 25 Defendant engages in a “health program or activity, any part of which is receiving Federal 26 financial assistance.” Id. Plaintiffs argue that CVS Pharmacy, Inc., is an entity that receives 27 Federal financial assistance that is “principally engaged in the business of providing healthcare,” 1 four subsidiaries by virtue of Section 92.3(b). Opp. at 11, 14. Defendants respond that 2 “operations” cannot plausibly be read to encompass separate entities, so Plaintiffs must show that 3 each Defendant entity received Federal financial assistance to be liable. Reply at 3. 4 As discussed below, the statutory language and relevant caselaw does not clearly convey 5 whether “operations” may encompass the activities of separate subsidiary entities of a business 6 engaged in providing healthcare (as opposed to only such entity’s internal operations). However, 7 the text of Section 1557 and its regulatory history indicates that Section 1557 was intended to 8 reach broadly. Moreover, the caselaw developed from the four civil rights statutes which are 9 incorporated in the ACA provides helpful guidance in determining the parameters of Federal 10 financial assistance under the ACA. These cases indicate that an entity may be considered a 11 recipient of federal funding where it is an “indirect recipient” or where it exhibits “controlling 12 authority” over a federally funded program; the precise corporate form of the operations is not 13 dispositive. See, e.g., Castle v. Eurofresh, Inc., 731 F.3d 901, 909 (9th Cir. 2013) (describing 14 indirect recipient of federal financial assistance theory under the Rehabilitation Act); A.B. by C.B. 15 v. Hawaii State Dep’t of Educ., 386 F. Supp. 3d 1352, 1358 (D. Haw. 2019) (denying motion to 16 dismiss where plaintiff alleged that defendant was subject to Title IX under a controlling authority 17 theory); Barrs v. S. Conf., 734 F. Supp. 2d 1229, 1235 (N.D. Ala. 2010) (same); Williams v. Bd. of 18 Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1294 (11th Cir. 2007) (same). 19 1. The Statutory Text of Section 1557 and Related Provisions 20 “[I]n all cases of statutory interpretation, we begin with the language of the governing 21 statute.” Diva Limousine, Ltd. v. Uber Techs., Inc., 392 F. Supp. 3d 1074, 1085 (N.D. Cal. 2019) 22 (quoting Beal Bank, SSB v. Arter & Hadden, LLP, 42 Cal. 4th 503, 507 (2007)); see Satterfield v. 23 Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009). 24 Section 1557 incorporates long-standing anti-discrimination laws (the Rehabilitation Act, 25 Title IX, Title VI, and the Age Discrimination Act) and applies them to healthcare. Section 1557 26 further provides in more expansive language that an individual shall not “be subjected to 27 discrimination under, any health program or activity, any part of which is receiving Federal 1 prior anti-discrimination statutes referenced in Section 1557: the Rehabilitation Act, Title IX, 2 Title VI, and the Age Discrimination Act prohibit discrimination under “any program or activity 3 receiving Federal financial assistance,” in contrast to the Act which applies to “any health program 4 or activity, any part of which is receiving Federal financial assistance.” Compare 42 U.S.C. § 5 18116(a) (emphasis added), with 29 U.S.C. § 794, 42 U.S.C. § 2000d, 20 U.S.C. § 1681; and 42 6 U.S.C. § 6102. 7 Furthermore, the implementing regulations of Section 1557 state that “health program or 8 activity” encompasses “all of the operations of entities principally engaged in the business of 9 providing healthcare that receive Federal financial assistance,” again apparently emphasizing the 10 broad reach of the statute. See 42 C.F.R. § 92.3(b) (emphasis added.) 11 Plaintiffs rely in the first instance on the regulations, in particular on the “all of its 12 operations” provision. Plaintiffs begin by focusing on CVS Pharmacy, Inc., the parent company 13 of the other Defendants. Opp. at 6 n.2; MTD at 5 & n.8. The SAC alleges that CVS Pharmacy, 14 Inc., is an entity that is principally engaged in the business of providing healthcare and receives 15 substantial amounts of federal assistance. SAC ¶ 135; see also Opp. at 11. Under Section 92.3(b), 16 then, “all of the operations of” CVS Pharmacy fall within Section 1557’s anti-discrimination 17 provision. See 42 C.F.R. § 92.3(b) (“‘[h]ealth program or activity’ encompasses all of the 18 operations of entities principally engaged in the business of providing healthcare that receive 19 Federal financial assistance . . . ”). Plaintiffs conclude that “all of” CVS Pharmacy’s “operations” 20 with regard to the Program at issue includes the Defendant subsidiaries insofar as they are 21 involved in the Program. Opp. at 11. 22 2. Heart of CardDon 23 In support of its argument that CVS’s “operations” should be broadly interpreted to include 24 the four Defendant subsidiaries, Plaintiffs point to examples where the “operations” of a covered 25 entity has been construed broadly in analogous contexts. In Heart of CarDon, for example, the 26 court found that an ERISA benefit plan defendant was subject to Section 1557 as part of the 27 “operations” of a separate entity, which was responsible for designing and funding the health plan. 1 (S.D. Ind. Mar. 16, 2021), reconsideration denied, motion to certify appeal granted, No. 1:20-cv- 2 01699, 2021 WL 2946447 (S.D. Ind. July 14, 2021). As Heart of CarDon reasoned:

3 CarDon is a covered ‘health program or activity’ subject to Section 1557 because it is principally engaged in the business of providing 4 healthcare and receives federal financial assistance in the form of Medicaid and Medicare payments . . . So, as soon as CarDon 5 accepted funds through Medicaid and Medicare programs (“Federal financial assistance”), it was “‘bound to adhere to the mandates of 6 [Section 504],’ in “all of [its] operations,” 29 U.S.C. § 794(b). This, of course, included implementation of the Plan, which, according to 7 T.S., “is designed, funded and controlled entirely by CarDon.” (Filing No. 40 at 22; see also Filing No. 31 at 3 (“As ‘Plan Sponsor,’ 8 CarDon designs the benefits to be offered under the Plan.”).) “All operations” means “all operations,” after all. Because “all of” 9 CarDon’s operations are covered by Section 504 of the Rehabilitation Act, T.S.’s claim under Section 1554 [sic] of the 10 ACA can, at this stage in the litigation, proceed. 11 Id. (cleaned up). Importantly, Heart of CarDon found that “operations” could include a separate 12 entity. To be clear, the defendant entities in Heart of CarDon consisted of a health care provider 13 and an employee benefit plan (which constitutes a separate legal entity under ERISA, see 29 14 U.S.C. § 1132(d)(1)), so the precise question at issue differs in some respect. Even so, Heart of 15 CarDon supports Plaintiffs’ theory that “operations” may sweep across corporate entity lines. See 16 29 U.S.C. § 1132(d)(1) (“An employee benefit plan may sue or be sued under this subchapter as 17 an entity.”). 18 Defendants respond that “operations” are functions that an agency performs; entities 19 themselves are not operations and thus operations cannot include the work of other separate legal 20 entities. Reply at 3. Defendants point out that the implementing regulation in 45 C.F.R. § 92.3(b) 21 includes both “operations” and “entities,” and contend that this language makes clear that 22 “operations” is distinct from “entities.” Id. at 3–4. But the fact that the regulations refer to the 23 “operations” of the “entities” does not imply that “operations” cannot include subsidiary entities. 24 Entities such as corporations may conduct their operations not only through, e.g., divisions or 25 departments, but often through subsidiaries. The regulation does not state that the “operations” of 26 an entity cannot include other entities assigned to carry out some portion of the operations.3 27 1 The SAC plausibly alleges that the Pharmacy Defendants and PBM Defendants engage in 2 a “health program or activity” under Section 1557. See Callum v. CVS Health Corp., 137 F. Supp. 3 3d 817, 852–53 (D.S.C. 2015) (CVS pharmacies are “principally engaged in the business of 4 providing healthcare” under Section 1557); cf. Corcoran v. CVS Health Corp., 169 F. Supp. 3d 5 970, 976 (N.D. Cal. 2016) (noting that CVS pharmacies “dispense prescription medications”). 6 As entities principally engaged in the business of providing healthcare, “all of the 7 operations” of CVS Pharmacy, Inc. and the other Pharmacy Defendants are covered by Section 8 1557. See 42 C.F.R. § 92.3(b). 9 Defendants argue that such a broad interpretation disregards corporate identity and the 10 privacy of corporate forms. But holding that subsidiaries of an enterprise engaged in providing 11 healthcare are subject to Section 1557 does not otherwise undermine the corporate structure for 12 other legal purposes. The holding only involves the construction of Section 1557 of the ACA. In 13 that regard, to confine the reach of Section 1557, as argued by Defendants, would conflict with the 14 broad remedial purpose of Section 1557. To ignore the overall interrelationship among the entities 15 which, in the case at bar, design and implement the allegedly discriminatory program and permit 16 the CVS interrelated entities to escape responsibility would exalt form over substance and impair 17 the effectiveness of the anti-discrimination provision of the ACA. 18 3. Regulatory Guidance Emphasizes the Breadth of Section 1557 19 In 2016, the Department of Health and Human Services (HHS) issued guidance addressing 20 the Federal financial assistance requirement of Section 1557 in response to comments 21 recommending that the rule apply “only to the specific health program for which the entity 22 receives Federal financial assistance.” See 81 Fed. Reg. 31375, 31385 (May 18, 2016). These 23 commentators asserted that “applying the rule to operations or products that are not the direct 24 recipients of Federal financial assistance conflicts with the plain meaning of Section 1557.” Id. at 25 31386. HHS unequivocally disagreed and explained that:

26

27 2004), and a business enterprise may conversely refer to a conglomerate of corporate entities. See Section 1557 prohibits discrimination under “any health program or 1 activity, any part of which is receiving Federal financial assistance. . . .” By applying the prohibition if “any part” of the health program 2 or activity receives Federal financial assistance, the law provides that the term “health program or activity” must be interpreted in a 3 manner that uniformly covers all of the operations of any entity that receives Federal financial assistance and that is principally engaged 4 in health insurance, health insurance coverage, or other health coverage, even if only part of the health program or activity receives 5 such assistance. This interpretation serves the central purposes of the ACA, and effectuates Congressional intent, by ensuring that 6 entities principally engaged in health services, health insurance coverage, or other health coverage do not discriminate in any of 7 their programs or activities, thereby enhancing access to service and coverage. 8 9 Id. HHS then added that:

10 This approach is consistent with the approach Congress adopted in the CRRA, which amended the four civil rights laws referenced in 11 Section 1557 and defines “program or activity” to mean “all the operations of . . . an entire corporation, partnership, or other private 12 organization, or an entire sole proprietorship. . . which is principally engaged in the business of providing,” among other things, a range 13 of social and health services. The CRRA establishes that the entire program or activity is required to comply with the prohibitions on 14 discrimination if any part of the program or activity receives Federal financial assistance. The CRRA has been consistently applied since 15 its enactment in 1988, and we believe that Congress adopted a similar approach with respect to the scope of health programs and 16 activities covered by Section 1557. If any part of a health care entity receives Federal financial assistance, then all of its programs 17 and activities are subject to the discrimination prohibition. 18 Id. 19 While the guidance does not expressly address the precise question at issue—namely, 20 whether a corporation’s “operations” can encompass, e.g., subsidiaries and affiliated corporate 21 entities—the guidance demonstrates that Section 1557 was intended to reach broadly so that 22 “entities principally engaged in health services” “do not discriminate in any of their programs or 23 services, thereby enhancing access to service and coverage.” Id. Importantly, the guidance also 24 indicates that the scope of Section 1557 with regard to federal funding for a “program or activity” 25 draws upon the four civil rights statutes which are incorporated in Section 1557. 26 C. Indirect Recipients Under Prior Civil Rights Statutes Involving Federal Funding 27 There is an additional basis to find that the CVS entities are subject to Section 1557. Even 1 entities would be considered direct or indirect recipients of federal funding under the “controlling 2 authority” theory. 3 1. The Civil Rights Statutes Incorporated By Section 1557 4 Section 1557 incorporates by reference the grounds protected by four earlier 5 nondiscrimination statutes—the Rehabilitation Act, Title VI of the Civil Rights Act of 1964 6 (“Title VI”), 42 U.S.C. § 2000d, Title IX of the Education Amendments Act of 1972 (“Title IX”), 7 20 U.S.C. § 1681, and the Age Discrimination Act of 1972, 42 U.S.C. § 6101 (the “ADA”). See 8 42 U.S.C. § 18116(a). The Ninth Circuit has recognized that the incorporated civil rights statutes 9 can provide useful guidance into Section 1557. See Schmitt v. Kaiser Found. Health Plan of 10 Washington, 965 F.3d 945, 951–52 (9th Cir. 2020) (“Applying section 1557 requires an 11 understanding of its relationship to previous civil rights statutes.”). These civil rights statutes are 12 helpful for present purposes because—like Section 1557—an essential element of a claim under 13 the Rehabilitation Act, Title IX, and Title VI is that the relevant program or activity is receiving 14 federal financial assistance. See 20 U.S.C. § 794; 42 U.S.C. § 2000d; 20 U.S.C. § 1681; 42 U.S.C. 15 § 6101. These laws have generated an expansive body of caselaw describing the circumstances 16 where one entity’s direct receipt of federal funding may bind another entity. 17 For instance, it is well established under funding statutes that receipt of “federal financial 18 assistance can be direct or indirect.” Sharer v. Oregon, 581 F.3d 1176, 1181 (9th Cir. 2009) 19 (alterations, citation, and quotation marks omitted). But an entity that “merely benefits from 20 federal funding” is not a recipient of federal funds. See Nat’l Coll. Athletic Ass’n v. Smith, 525 21 U.S. 459, 468 (1999) (emphasis added). 22 In Smith, the Supreme Court reviewed the narrow question of whether the NCAA, which 23 received dues from recipients of federal funds, is for the same reason, a recipient itself. See id. at 24 469. After revisiting its prior decisions in Grove City College v. Bell, 465 U.S. 555 (1984) and 25 United States Department of Transportation v. Paralyzed Veterans of America, 477 U.S. 597, 606 26 (1986), the Supreme Court held, “Entities that receive federal assistance, whether directly or 27 through an intermediary, are recipients within the meaning of [these statutes]; entities that only 1 “no allegation that NCAA members paid their dues with federal funds earmarked for that 2 purpose.” Id. Because NCAA merely benefitted economically from the receipt of dues from its 3 members, NCAA was not covered under Title IX. Id. at 470. The Court expressly declined to 4 consider whether NCAA was covered under Title IX because it allegedly exercised “controlling 5 authority over a federally funding program.” Id. at 469–70. 6 Following Smith, courts have considered Congress’s intent and a party’s ability to accept 7 or reject the federal funding to determine whether a party is an “indirect recipient” or “mere 8 beneficiary” of federal funds. Alfano v. Bridgeport Airport Servs., Inc., 373 F. Supp. 2d 1, 6 (D. 9 Conn. 2005) (citing Paralyzed Veterans and Grove City); Castle, 731 F.3d at 909 (denying 10 Rehabilitation Act claim where plaintiff “presented no evidence that Eurofresh affirmatively chose 11 to receive federal monies, and in so doing accepted the concomitant responsibilities of complying 12 with” the Rehabilitation Act). Thus, for instance, the processing and collection of 13 Medicare/Medicaid payments on behalf of another entity may show the ability to accept or reject 14 federal financial assistance. See Mullen v. S. Denver Rehab., LLC, No. 18-cv-01552, 2020 WL 15 2557501, at *14 (D. Colo. May 20, 2020) (finding that there was a genuine issue of material fact 16 as to whether entity was covered under the ACA and Rehabilitation Act where entity maintained 17 and renewed approvals needed for participation in Medicare programs, prepared and filed 18 Medicare reports and claims, and administered and collected private party insurance, Medicare, 19 Medicaid, and other receivables). 20 In Alfano, the plaintiff adequately alleged that defendants Bridgeport Airport Services Inc. 21 and Executive Air Support received Federal financial assistance under the Rehabilitation Act in 22 connection with federal funding that the City of Bridgeport received to redevelop an airport. 23 Alfano, 373 F. Supp. 2d at 7. Plaintiff specifically alleged that in “1999, 2000, 2001, and 2002 the 24 City of Bridgeport obtained grants from the Federal Aviation Administration to pay for physical 25 improvements at the Bridgeport Airport,” that “the terms of the grants included compliance with 26 the Rehabilitation Act,” and that “on information and belief, Defendants were the intended indirect 27 recipients/beneficiaries of the federal grant money because the improvements were for 1 Id. at 5. Alfano held that “[a]t this stage of the proceedings, these allegations adequately state a § 2 504 claim” and “[w]hether defendants were among Congress’s intended recipients of the funds 3 and whether defendants were in a position to accept or reject the funds are questions that await 4 further factual development.” Id. at 7. That the two defendants were distinct entities did not 5 preclude coverage under the Rehabilitation Act. 6 Other courts have decided that an entity that has “controlling authority” over a federally 7 funded program is subject to the antidiscrimination provisions under Title IX, even when the 8 entity does not directly receive federal funding. In A.B. by C.B., for instance, the plaintiff brought 9 a putative Title IX class action against the Hawaii Department of Education and an unincorporated 10 athletic association composed of Department of Education schools. A.B. by C.B. v. Hawaii State 11 Dep’t of Educ., 386 F. Supp. 3d 1352, 1354–55 (D. Haw. 2019). The athletic organization moved 12 to dismiss on the basis that it did not receive any federal funds. Id. at 1355. A.B. concluded that 13 the plaintiff adequately alleged that an unincorporated athletic association was covered under Title 14 IX by virtue of its controlling authority over the federally funded interscholastic athletic programs.

15 Because the Complaint alleges that the OIA had controlling authority over the DOE’s interscholastic athletic programs, 16 including “competitive facilities; scheduling of seasons, games, and tournaments; travel; publicity and promotion; and budget,” 17 [Complaint at ¶ 16,] the Court concludes that Plaintiffs have provided sufficient factual matter to plausibly allege that the OIA is 18 the controlling authority over the federally funded DOE’s athletic programs. Therefore, the Complaint plausibly alleges that the OIA 19 may be subject to the anti-discrimination provisions of Title IX under a “controlling authority” theory. 20 21 Id. at 1357–58. 22 Courts outside of the Ninth Circuit have also applied the “controlling authority” test to find 23 that an entity is covered under Title IX. See, e.g., Horner v. Ky. High Sch. Athletic Ass’n, 43 F.3d 24 265, 271–72 (6th Cir. 1994) (holding that because Kentucky’s state laws conferred authority to the 25 Kentucky State Board of Education (“BOE”) and Kentucky High School Athletic Association 26 (“KHSAA”) to control certain activities for the federally funded Kentucky Department of 27 Education, the BOE and KHSAA were both subject to Title IX); Cmtys. for Equity v. Mich. High 1 exercises controlling authority over a federally funded program is subject to Title IX, regardless of 2 whether that entity is itself a recipient of federal aid”); Barrs v. S. Conf., 734 F. Supp. 2d 1229, 3 1235 (N.D. Ala. 2010) (denying motion to dismiss where plaintiffs alleged that defendant 4 “governs, regulates, operates, and controls” the intercollegiate athletics of its member schools and 5 those schools “delegate and assign the authority to do so” to defendant). In choosing to find an 6 entity with controlling authority covered, the Eleventh Circuit reasoned that “if we allowed 7 funding recipients to cede control over their programs to indirect funding recipients but did not 8 hold indirect funding recipients liable for Title IX violations, we would allow funding recipients to 9 receive federal funds but avoid Title IX liability.” Williams v. Bd. of Regents of Univ. Sys. of Ga., 10 477 F.3d 1282, 1294 (11th Cir. 2007) (citing Cmtys. for Equity, 80 F. Supp. 2d at 733–734). 11 In sum, the federal funding cases under the Rehabilitation Act and Title IX establish that 12 an entity that does not directly receive federal funding may nonetheless be covered where the 13 entity has some ability to accept or reject the federal funding or exercises controlling authority 14 over a federally funded program. Importantly, an entity may be liable, even though an entirely 15 distinct legal entity is the one which directly receives the federal funds. The central teaching of 16 the cases is that the legal distinctness of the entities involved is not dispositive; rather, what is 17 important is their functional role relative to decisions to receive federal funds or their control over 18 the funded program. 19 As noted above, Section 1557 bans discrimination in “any health program or activity, any 20 part of which is receiving Federal financial assistance,” language which, if anything, is broader 21 than that of the Rehabilitation Act, Title IX, Title VI, and the Age Discrimination Act, which 22 while prohibiting discrimination under “any program or activity receiving Federal financial 23 assistance,” do not contain the italicized language of Section 1557. Compare 42 U.S.C. § 24 18116(a) (emphasis added), with 29 U.S.C. § 794, 42 U.S.C. § 2000d, 20 U.S.C. § 1681, and 42 25 U.S.C. § 6102. 26 Turning to the instant matter, the Court concludes that even under the narrower prior 27 statutes, the CVS Defendants would be covered as direct or indirect recipients of federal funds. 1 deemed to be an indirect recipient of federal funds if: (1) it had the ability to accept or reject the 2 federal funding that another entity received, or (2) it exercised controlling authority over a 3 federally funded program. As explained below, the SAC alleges that the Pharmacy Defendants 4 accepted federal funds for the drugs they sold and that the PBM Defendants designed and 5 effectively controlled the discriminatory program at issue. See, e.g., SAC ¶¶ 135, 136, 149 6 (alleging that the Pharmacy Defendants received federal funding); id. ¶¶ 15, 16, 80 (alleging that 7 Caremark, L.L.C. designed and exhibited control over CSP and various elements of the Program). 8 The direct recipients of federal funds are alleged to have ceded control over the design of the 9 pharmacy benefit program at issue here to the PBM Defendants. Moreover, CVS Pharmacy, Inc., 10 the parent of the other named defendants, is alleged to have directly received federal financial 11 assistance. SAC ¶ 135. 12 As to the first basis for finding indirect receipt of federal funds, Plaintiffs have not clearly 13 alleged that the PBM Defendants are in a position to accept or reject the federal funding provided 14 to the Pharmacy Defendants. It is not clear, for instance, whether the PBM Defendants process 15 and collect Medicare payments on behalf of the Pharmacy Defendants, which other courts have 16 found may confer indirect recipient status. See Mullen, 2020 WL 2557501, at *14 (“The Court 17 finds that these responsibilities, particularly the processing and collection of Medicare/Medicaid 18 payments on behalf of Orchard Park, establish CCHC may have had (or has) the ability to accept 19 and/or reject federal financial assistance provided to Orchard Park.”). Plaintiffs explained in their 20 opposition brief that “specific financial information at the CVS subsidiary level is not publicly 21 available,” see Opp. at 9 n.4, so it may be that Plaintiffs do not have access to this information. 22 See, e.g., Melton by and through Mosier v. California Dep’t of Developmental Servs., No. 20-cv- 23 06613-YGR, 2021 WL 5161929, at *14 (N.D. Cal. Nov. 5, 2021) (“[T]he vast majority of courts 24 faced with the issue of whether an entity receives federal financial assistance within the meaning 25 of the civil rights laws have concluded that the resolution of the issue requires inquiry into factual 26 matters outside the complaint and, accordingly, is a matter better suited for resolution after both 27 sides have conducted discovery on the issue.”). 1 the Pharmacy Defendants which receive federal funds directly. SAC ¶¶ 135, 149. Receipt of 2 funding through Medicare Part D is sufficient for Section 1557. See Callum, 137 F. Supp. 3d at 3 852. Indeed, Defendants do not dispute that the Pharmacy Defendants receive Federal financial 4 assistance. See MTD at 6–8 (asserting that Plaintiffs fail to show that the PBM Defendants 5 receive Federal financial assistance). 6 As to the PBM Defendants, as noted above, “an entity that exercises controlling authority 7 over a federally funded program is also subject to the anti-discrimination provisions of Title IX.” 8 A.B., 386 F. Supp. 3d at 1357; see also Barrs, 734 F. Supp. 2d at 1233 (finding complaint alleged 9 that defendant was “an indirect recipient of federal funding” where defendant “operates” and 10 “controls” federally funded program and is delegated authority by funding recipients). 11 Taking all of Plaintiffs’ allegations as true, the SAC plausibly alleges that the PBM 12 Defendants exercise controlling authority over the Program. The SAC alleges that Caremark, 13 L.L.C., one of the PBM Defendants, controls key components of the Program. In particular, 14 Caremark, L.L.C established the “Specialty Pharmacy Distribution Drug List” that imposed the 15 relevant restrictions on Plaintiffs’ HIV/AIDS medications. SAC ¶¶ 16, 95. Caremark, L.L.C. also 16 “owns and exercises control over CSP.” Id. ¶ 15. CSP is the entity that fills prescriptions and 17 ships out medications under the Program. Id. The SAC further alleges that the “reduction or 18 elimination of the drug benefit is effectuated by way of CSP’s and [Defendants’] control over the 19 Program, [Defendants’] control over whether community pharmacies are designated “out-of- 20 network,” and [Defendants’] control over cost-sharing issues and control over CVS pharmacies 21 that allow Defendants to establish CVS pharmacies as drop shipment locations and limit or 22 effectively bar in-person consultations, advice, and monitoring by pharmacists knowledgeable 23 about HIV/AIDS Medications.” Id. ¶ 155(b). 24 Additionally, the SAC alleges that at least one of the PBM Defendants exercises 25 controlling authority over at least one of the Pharmacy Defendants. As noted above, the SAC 26 alleges that Caremark, L.L.C. “owns and exercises control over CSP.” SAC ¶ 15. The SAC also 27 alleges that “[t]he decision to force Class Members to accept CSP as their exclusive provider 1 Defendants. Id. ¶ 80. Given these allegations, Plaintiffs have plausibly alleged that Caremark 2 L.L.C., one of the PBM Defendants, exercise controlling authority over CSP, which in turn 3 directly receives federal funding. 4 Thus, the SAC plausibly alleges that the PBM Defendants may be indirect recipients under 5 a “controlling authority” theory. See A.B., 386 F. Supp. 3d 1352, 1357–58 (finding that defendant 6 may be subject to Title IX under a “controlling authority” theory where complaint alleged that 7 defendant had controlling authority over Hawaii State Department of Education’s federally funded 8 athletic programs). In sum: even under the more narrowly worded civil rights statutes referenced 9 in the ACA, the Defendant CVS entities would be considered direct or indirect recipients of 10 federal funding. 11 V. CONCLUSION 12 The SAC plausibly alleges that the Defendant CVS entities function as a cohesive, 13 integrated enterprise in the provision of healthcare under the Program. All four Defendant entities 14 are plausibly part of the operations of Defendant CVS Pharmacy, Inc., which receives federal 15 funding. Additionally, even under the more narrowly worded civil rights statutes referenced in the 16 ACA, the Defendant CVS entities would be considered direct or indirect recipients of federal 17 funding. As a result, the Court finds that Plaintiffs have plausibly stated a claim that each 18 Defendant engages in a “health program or activity, any part of which is receiving Federal 19 financial assistance” under Section 1557. 20 Defendants’ motion to dismiss is therefore DENIED because Plaintiffs may plausibly 21 succeed on their claims against Defendants based on the allegations in the SAC. 22 This order disposes of Docket No. 184. 23 24 IT IS SO ORDERED. 25 26 Dated: August 5, 2022 27 ______________________________________