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Counsel should also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf Appeal Record due by 3/13/2025. (Rizio-Hamilton, John) (Main Document 77 replaced on 3/7/2025) (Potter, Carrie). (Entered: 03/06/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/415627006/","id":415627006,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/16065704/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/429333771/","id":429333771,"tags":[],"absolute_url":"/docket/16065704/75/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2025-02-05T06:20:18.857448-08:00","date_modified":"2025-09-18T11:37:49.260648-07:00","sha1":"24a80cb54bb078983f7075ffe00548ea878b77c6","page_count":15,"file_size":203805,"filepath_local":"recap/gov.uscourts.rid.47299/gov.uscourts.rid.47299.75.0_1.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.rid.47299/gov.uscourts.rid.47299.75.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"                      UNITED STATES DISTRICT COURT\n                    FOR THE DISTRICT OF RHODE ISLAND\n\n____________________________________\n                                    )\n                                    )\n                                    )\nIN RE CVS HEALTH                    )\nCORPORATION SECURITIES              )        No. 1:19-cv-434-MSM-LDA\nACT LITIGATION                      )\n                                    )\n                                    )\n____________________________________)\n\n\n                          MEMORANDUM AND ORDER\n\nMary S. McElroy, United States District Judge.\n\n                             I.     INTRODUCTION\n\n      This is the second of two securities cases challenging practices of the CVS\n\nHealth Corporation (\u201cCVS\u201d) and its officers and agents to come before this Court. In\n\n2019, this case was filed as a putative class action by the Waterford (Connecticut)\n\nTownship Police & Fire Retirement System (\u201cWaterford\u201d) seeking to impose liability\n\non CVS for what it claimed were false and misleading statements surrounding CVS\u2019s\n\n2018 acquisition of Aetna Insurance Corporation. Waterford, like other retirement\n\nfunds joining in the action, was an investor in Aetna whose stock was exchanged for\n\nCVS shares as part of the merger. The same year this lawsuit was filed, a group of\n\npension funds that had been investors in Omnicare Corporation, a company acquired\n\nby CVS in 2015, also sued CVS for what it similarly claimed were false and\n\nmisleading statements CVS had made in connection with the Omnicare acquisition.\n\n\n\n\n                                         1\n\fThe lead plaintiff in that case was the City of Miami (Florida) Firefighters\u2019 and Police\n\nOfficers\u2019 Retirement Trust.\n\n         Both the Omnicare and Aetna acquisitions were part of a larger effort by CVS,\n\naccording to the lawsuits, to expand its dominance in the pharmaceutical arena of\n\nthe long-term care world by diversifying its services. Prior to the Omnicare merger,\n\nCVS\u2019s market share was largely in its retail business, anchored by its brick-and-\n\nmortar stores. Omnicare brought it a new customer base of long-term care facilities\n\nto which it sold pharmaceuticals. The acquisition of Aetna took it into the insurance\n\nworld.\n\n         The two lawsuits shared common themes. Each contended that the documents\n\nCVS was required by law to file in connection with the acquisitions contained false\n\nstatements and omitted facts that were so material that their omission made other\n\nstatements misleading. Each contended that CVS painted an overly rosy picture of\n\nits operations to convince shareholders of the companies it was acquiring to vote for\n\nthe merger.      Each maintained that CVS\u2019s stock had lost value because of the\n\nOmnicare acquisition. The Omnicare shareholders complained that CVS\u2019s business\n\npractices had decimated the value of what Omnicare had brought to the merger. The\n\nAetna shareholders complained that CVS\u2019s valuation, in convincing them of the\n\nfavorability of their merger with CVS, failed to accurately inform them of the losses\n\nthe Omnicare acquisition had caused to CVS\u2019s Retail/Long-Term Care unit. Both\n\nlawsuits complained that CVS had concealed the impact of losses of Omnicare\u2019s value\n\nby writing down losses in Omnicare goodwill too late and too slowly.\n\n\n\n                                           2\n\f      The relationship between the two acquisitions, and the two lawsuits, was\n\nsummarized by the First Circuit in upholding this Court\u2019s dismissal of the Omnicare\n\n(City of Miami) lawsuit:\n\n      CVS Health is a publicly traded company that provides integrated\n      pharmacy healthcare services and operates thousands of retail stores\n      and clinics across the United States. In 2015, CVS Health acquired\n      Omnicare, then the leading provider of pharmaceutical services to long-\n      term care (LTC) facilities. Plaintiffs allege that the newly acquired LTC\n      business subsequently \u201chemorrhaged\u201d customers due to CVS Health\u2019s\n      mismanagement, including its decision to centralize and standardize a\n      number of operations that Omnicare had previously tailored to each\n      customer. According to the complaint, CVS Health misleadingly\n      concealed these customer losses and their causes so as not to threaten\n      CVS Health\u2019s ability to acquire financing for another large acquisition\n      planned for 2018.\n\nCity of Miami Fire Fighters\u2019 and Police Officers\u2019 Ret. Tr. v. CVS Health Corp., 46\n\nF.4th 22, 26 (1st Cir. 2022). That other \u201clarge acquisition planned for 2018\u201d was the\n\nacquisition of Aetna. Id.\n\n      The First Circuit\u2019s opinion in City of Miami provides an obvious and instructive\n\nguide for the review of the instant Complaint, one against which the assessment of\n\nthe Complaint both begins and ends. Because of City of Miami\u2019s likely impact, this\n\nWaterford litigation was stayed while City of Miami was pending on appeal. After it\n\nwas decided, these plaintiffs filed an Amended Complaint (ECF No. 51), which is the\n\noperative Complaint. For the same reason that prompted the First Circuit to affirm\n\nthe dismissal of City of Miami, and in the context of pleadings that are similar in\n\nrelevant respect, the Court finds the Amended Complaint wanting under Fed. R. Civ.\n\nP. 12(b)(6) and GRANTS the Motions to Dismiss (ECF Nos. 52, 53).\n\n\n\n\n                                          3\n\f                                  II. DISCUSSION\n\n\n      A. Elements of the Action\n      This action claims liability on the part of CVS Health under (a) Sections 11,\n\n12(a)(2) and 15 of the Securities Act, 15 U.S.C. \u00a7 \u00a7 77k, 77l and 77o; and (b) Sections\n\n14(a) and 20(a) of the Exchange Act, 15 U.S.C. \u00a7 \u00a7 78n(a) and 78t(a). None of these\n\nsections require that acts be committed with fraudulent intent, but they all impose\n\nliability for statements which are false because they are untrue or are misleading\n\nbecause they omit information or facts necessary to make the statement not\n\nmisleading. While the formulations of this element\u2014falsity or misleading nature\u2014\n\nvary slightly from statute to statute, the essence and defining words are the same. 1\n\n      In City of Miami, the First Circuit focused on what allegations of pleading\n\nwould adequately make out a claim for false or misleading statements, even taking\n\nthe facts pled in the light most favorable to the plaintiff. 46 F.4th at 30. When the\n\n\n\n1 Section 11 of the Securities Act, 15 U.S.C. \u00a7 77k, imposes liability on those signing\n\nor named in a Registration Statement \u201cfor untrue statement[s] of a material fact or\nomission of a material fact required to be stated therein or necessary to make the\nstatements therein not misleading \u2026.\u201d Section 12(a)(2), 15 U.S.C. \u00a7 77l(a)(2), which\ngoverns communications in a prospectus and oral statements, proscribes \u201can untrue\nstatement of a material fact or [omission of] a material fact necessary in order to\nmake the statements, in the light of the circumstances under which they were made,\nnot misleading \u2026.\u201d Section 14(a) of the Securities Exchange Act of 1934, 15 U.S.C. \u00a7\n77o, governs solicitation of proxies by communications \u201c\u201ccontaining any statement\nwhich, at the time and in the light of the circumstances under which it is made, is\nfalse or misleading with respect to any material fact, or which omits to state any\nmaterial fact necessary in order to make the statements therein not false or\nmisleading \u2026.\u201d Finally, both Section 15 of the Securities Act and Section 20(a) of the\nExchange Act impose derivative liability on those who control persons violating\ncertain of the above statutes, thus necessarily incorporating the same false or\nmisleading statement element.\n\n\n                                          4\n\ffacts alleged in this Waterford case are compared to those found wanting in City of\n\nMiami, the Court reaches a similar result\u2014dismissal for failure to state a claim upon\n\nwhich relief can be granted. That comparison is made below.\n\n      The plaintiffs argue that City of Miami is not controlling for two reasons. First,\n\nthey claim that the statutes under which liability was claimed in City of Miami\n\nrequired proof of fraudulent intent, and those proscribing the conduct at issue here\n\ndo not. See Shaw v. Digit. Equip. Corp., 82 F.3d 1194, 1223 (1st Cir. 1996) (fraud not\n\nan element of section 11 and 12 claims). 2      Indeed, each Count of the Amended\n\nComplaint expressly asserts that it \u201cdoes not sound in fraud.\u201d (ECF No. 51 \u00b6\u00b6 330,\n\n343, 355, 360, 375.) Second, the plaintiffs note that the statutes under which liability\n\nwas alleged in City of Miami were different from those at issue. As to the first point,\n\nthe allegations here are not inadequate because of a heightened pleading standard\n\nrelevant only in fraud cases or because of any inadequate pleading of fraudulent\n\nintent. As discussed below they are inadequate because there are insufficient facts\n\npled to show they were false or misleading when made. As to the second point, while\n\nthe statutes are different, the element that both the Amended Complaint and the\n\nCity of Miami complaint insufficiently pled is common to all of them.\n\n      Thus, these are, to be sure, differences but they are differences without a\n\ndistinction under the circumstances here.\n\n\n\n\n2 Shaw has been abrogated on other grounds by statute.     See Silverstrand Invests. v.\nAMAG Pharms., Inc., 707 F.3d 95, 102 (1st Cir. 2013).\n                                            5\n\f      The statements at issue in this case and City of Miami are similar. Here, the\n\nplaintiffs have specified five sets of statements and omissions they allege are\n\nactionable:\n\n\n      1. In the Offering Documents, incorporating the 2016 10-K, stating that\n         Omnicare was a material driver of CVS Health\u2019s financial success.\n         Specifically, an increase in revenues of 12.6% for the year ended Dec. 31,\n         2016, was attributed primarily to \u201cthe acquisition of Omnicare\u2019s LTC\n         operations.\u201d (ECF No. 51 \u00b6 269.)\n\n      2. In the Offering Documents, specifically the 2017 10-K, a representation\n         that the consolidated financial statements, \u201cincluding the results of its\n         annual goodwill impairment testing and goodwill asset values [were\n         prepared] in conformity with U.S.       Generally Accepted Accounting\n         Principles.\u201d Id. \u00b6 281.\n\n      3. In the Offering Materials, specifically the 2016 10-K, 1Q17 10-Q, 2Q17 10-\n         Q, 3Q17 10-Q, and 2017 10-K, the Company \u201cpurported to warn investors\u201d\n         of potential client loss and/or the failure to win new business. Id. \u00b6\u00b6 286,\n         287.\n\n      4. The failure of the Offering Documents to disclose additional information\n         relating to the impact of known trends and uncertainties on revenue. Id. \u00b6\n         303.\n\n      5. Information contained in an investor relations presentation wherein CVS\n         described its LTC business as a \u201c[l]eading provider of pharmacy services in\n         long-term care\u201d through an \u201cintegrated healthcare platform [that] offers\n         better care and convenience at a lower cost\u201d and would \u201cenable [the\n         combined company] to deliver superior outcomes at lower cost.\u201d Id. \u00b6 314. 3\n\n\n3 The false and misleading statements claimed in City of Miami were summarized by\n\nthe Circuit as:\n   1. Representations about the financial performance of the LTC business,\n      including statements from the 2015 Form 10-K filed in February 2016 and the\n      quarterly and annual filings for 2016, that an increase in CVS\u2019s Retail/LTC\n      segment \u201cwas primarily driven by the acquisition of Omnicare.\u201d City of Miami,\n      46 F.4th at 27-28. These statements omitted the disclosure \u201cthat Omnicare\n      LTC customers were fleeing.\u201d Id. at 28.\n   2. A December 2016 claim at an annual investor conference \u201cthat CVS Health\n      had \u2018a leadership position in long-term care with Omnicare.\u2019\u201d Id.\n                                         6\n\f      The alleged false or misleading statements of this case and City of Miami are\n\nnot one-for-one the same, but they share the overall themes that, while CVS Health\n\nwas touting the success of the merger and the contribution of Omnicare to its position\n\nas a \u201cleader\u201d in the LTC industry, the Omnicare customer base was in fact\n\nhemorrhaging; that while CVS Health was promoting the success of its \u201csynergies,\u201d\n\nthe integration of the Omnicare business into the CVS model was in actuality a\n\nfailure contributing to the loss of customers; that customer loss was suggested only\n\nas a \u201cfuture\u201d risk when in fact it was happening at a steady rate at the time; and that\n\nCVS\u2019s failure to write-down the Omnicare goodwill contemporaneously with the loss\n\nof its value presented a misleadingly positive picture of CVS Health\u2019s financial\n\nsituation.\n\n      \u201cFor allegedly false statements to support a claim of securities fraud, they must\n\nbe \u2018false when made.\u2019\u201d City of Miami, 46 F.4th at 30 (quoting Gross v. Summa Four,\n\nInc., 93 F.3d 987, 994 (1st Cir. 1996)). While City of Miami spoke in terms of pleading\n\n\n\n\n   3. Statements touting CVS\u2019s \u201cdeep understanding of [consumers\u2019, payors\u2019, and\n      providers\u2019] diverse needs through [CVS Health\u2019s] unique integrated model\u201d\n      that benefited CVS Health\u2019s ability to attract customers, as well as calls in\n      August 2015 and August 2017 proclaiming the success by CVS Health in\n      making it more compelling to facilities and their residents. Id. (brackets\n      original)\n   4. Statements that in a February 2016 earnings call that Omnicare was\n      performing well, in line with expectations due to realization of some\n      \u201canticipated synergies,\u201d and a repetition of that assessment a few months later\n      in a May 2016 earnings call. Id.\n   5. Statements alerting only to future risks facing the LTC business concerning\n      problems retaining existing customers and attracting new ones, repeated in a\n      number of SEC filings, when, according to the plaintiffs, those risks were\n      \u201calready occurring.\u201d Id.\n                                          7\n\f(and ultimately proving) fraud, the \u201cwhen made\u201d admonition applies equally to non-\n\nfraud allegations. It is proof of the falsity or misleading nature of the statements that\n\nis the factual issue tied to timing, not the intent with which the statements are made.\n\nIn other words, there must be a correlation between the time frame of the assertion\n\nand the \u201ctrue\u201d state of affairs. The burden is on the plaintiffs to plead sufficient facts\n\nto support an inference that, for example, at the time the defendants said the\n\nOmnicare acquisition was driving the CVS increase in revenue, it actually was doing\n\nthe opposite; that when the defendants said CVS Health had successfully employed\n\nits anticipated synergies to integrate Omnicare\u2019s business into its Retail Unit, those\n\nsynergies were either not successfully integrated or were causing a drain; and that\n\nwhen the defendants said risks of adverse trends were possible, they had in fact\n\nalready caused an impairment of goodwill.\n\n      It is significant to note that this Court did not find that the fraud or scienter\n\nallegations were insufficiently plead in City of Miami. Instead, this Court found the\n\nevidence insufficient to show falsity or misleading content. In an opinion the First\n\nCircuit called \u201con the mark,\u201d City of Miami, 46 F.4th at 26, this Court \u201c[did] not reach\n\nthe issue of whether the complaint fails to adequately allege scienter\u201d because it\n\nfound no actionable misstatements. City of Miami Firefighters\u2019 and Police Officers\u2019\n\nRet. Tr. v. CVS Health Corp., 519 F. Supp. 3d 80, 86 (D.R.I. 2021). 4 The First Circuit\n\n\n\n4 This Court found the statements not actionable because they were mere puffery,\n\nwere statements of opinion and hope for future success, were protected \u201cforward-\nlooking statements,\u201d or were \u201csimply too vague to have been material.\u201d City of Miami,\n519 F. Supp. 3d at 87-90.\n\n\n                                            8\n\fspecifically noted that \u201c[t]he district court did not reach defendants\u2019 alternative\n\nargument that the complaint failed to adequately plead the element of scienter.\u201d City\n\nof Miami, 46 F.4th at 29. Thus, neither this Court\u2019s decision, nor the Circuit\u2019s that\n\naffirmed it, turned on an allegation of fraud or was a consequence of a heightened\n\nstandard of pleading. 5   Instead, the City of Miami complaint failed under Rule\n\n12(b)(6) because of its \u201coverarching failure to allege material facts inconsistent with\n\ndefendants\u2019 public statements.\u201d Id. at 33.\n\n      An example of that shortcoming was its \u201cfailure to establish a reasonably clear\n\ntimeline of customer losses inconsistent with the company\u2019s goodwill disclosure.\u201d Id.\n\nWhile the plaintiffs here appended a timeline of statements and events in what was\n\npresumably an attempt to make up for the City of Miami Complaint shortcomings,\n\nECF No. 51- 1, a close examination of the Amended Complaint here reveals the same\n\nabsence of direct inconsistencies between CVS\u2019s performance and its representations\n\nthat would support a conclusion of falsity.\n\n      To be considered false, statements must show some contradiction between\n\ntheir content and the actuality. In Glassman v. Computervision Corp., 90 F.3d 617,\n\n634 (1st Cir. 1996), for example, the defendants had claimed that their orders were\n\n\u201cgenerally\u201d shipped within 30 days when the truth was that only 61% of the orders\n\nwere shipped in that time frame. Finding a 61% shipment rate \u201cconsistent\u201d with the\n\n\n\n\n5 The Private Securities Litigation Reform Act (\u201cPSLRA\u201d) requires, as to all Section\n\n11 and 12(a)(2) that the plaintiff specify which alleged statements or omissions were\nfalse or misleading and the reason(s) why. In re SeaChange Intern., Inc., No. 02-\n12116-DPW, 2004 WL 240317, at *3 (D. Mass. Feb. 6, 2004).\n                                             9\n\fword \u201cgenerally,\u201d the First Circuit held there was no material misstatement. Id.\n\nMoreover, while taking issue with the word \u201cgenerally,\u201d the plaintiffs had only noted\n\ndata from one portion (the last month) of one quarter. Id. Thus, as in City of Miami,\n\nthe time span of purportedly contradictory data did not adequately line up with the\n\nperiod covered by the alleged false statement.\n\n      The absence of a time correlation sufficiently precise to allow the conclusion\n\nthat events during a specific time period were inconsistent with the characterization\n\nof them was the fundamental flaw in the City of Miami pleading.\n\n      Two of these allegations cover such broad swaths of time that they\n      effectively provide no date limitation. The second describes a particular\n      competitor who had been pulling an unspecified number of CVS\n      customers \u201csince 2015.\u201d The third notes that a regional division of\n      Omnicare suffered customer losses \u201cfrom 2015 to 2019.\u201d For all we can\n      discern from these capacious timeframes, these two losses may not have\n      come anywhere close to their ultimate scale until shortly before the\n      complaint was filed. And we certainly have no basis for finding that CVS\n      Health experienced these losses before it took an appropriate write-\n      down or made an inconsistent statement\u2014indeed, that some losses of\n      customers occurred \u201csince 2015\u201d or \u201cfrom 2015 to 2019\u201d is entirely\n      consistent with CVS Health\u2019s reporting.\n      City of Miami, 46 F.4th at 32.\n\nEven those allegations that were \u201ctethered to some more precise timeframe,\u201d\n\nallegations of events occurring \u201conly within particular years\u201d\u2014i.e., \u201cin 2015, \u201cin 2016\u201d\n\nand \u201cimmediately after the Acquisition\u201d\u2014were insufficiently precise. Id.\n\n      The Amended Complaint\u2019s allegations here suffer from the same generalities.\n\nFor example, a statement in the 3Q17 10-Q, incorporated by reference into the\n\nRegistration Statement, claimed no impairment of goodwill \u201cduring the three months\n\nended September 30, 2017.\u201d (ECF No. 51 \u00b6 271.) The seven pieces of data cited to\n\n\n\n                                          10\n\fdemonstrate the falsity of that statement, recount a substantial loss of Omnicare\n\nbusiness \u201cfollowing CVS\u2019s acquisition of Omnicare,\u201d a reported loss of one-half of the\n\nOmnicare business \u201cby one year after the acquisition,\u201d a loss of business \u201cduring the\n\n2016-2017 timeframe,\u201d \u201ca loss of beds \u201cin 2016 and 2017,\u201d a loss of 80,000 \u2013 90,000\n\nbeds \u201ca year leading up to its acquisitions\u201d and particularly \u201cby the summer of 2017,\u201d\n\na loss of 25% of the business in \u201cspring 2017,\u201d a loss of beds \u201cby June 2017,\u201d and \u201can\n\naccelerating loss of beds leading up to, and following, Omnicare\u2019s acquisition by CVS.\u201d\n\n(ECF No. 51-1 at 1-2.) Many of these references are \u201csuch broad swaths of time that\n\nthey effectively provide no date limitation.\u201d City of Miami, 46 F.4th at 32. In\n\naddition, as did the City of Miami complaint, the plaintiffs did not address whether\n\nincreases of customer beds were offsetting the losses.           Indeed, the timeline\n\nacknowledges that \u201cOmnicare acquired pharmacies in the 2016-2017 timeframe to\n\nmake up for the loss of business,\u201d but when it then notes it lost \u201csubstantial shares of\n\nthe acquired business\u201d it refers to broad and imprecise timeframes of \u201cthree to six\n\nmonths following the acquisition\u201d and \u201cmost likely in the first half of 2017.\u201d (ECF\n\nNo. 51-1 at 3.) There are no absolute numbers alleged: in other words, the Amended\n\nComplaint does not compare, for example, a total net number of beds at any given\n\ntime. See City of Miami, 46 F.4th at 32 (\u201c[T]he complaint provides us with no reason\n\nto think that that 2015 loss by itself was both material and not offset by new\n\nbusiness.\u201d). 6\n\n\n\n6 An example of the plaintiffs\u2019 unsuccessful attempt to cure the City of Miami\ncomplaint is the addition to the original allegation (pre-City of Miami complaint) that\nwhile \u201cbed loss had always been an issue, [] it did improve for a short time during\n                                          11\n\f      The second category of alleged untrue and misleading facts involves CVS\u2019s\n\nwarnings that risks existed which could result in losses in the future. (ECF No. 51\n\n\u00b6\u00b6 286-302.) The plaintiffs contend that at the time CVS was warning of future risks,\n\ntrends were already occurring that jeopardized revenue. For example, the plaintiffs\n\ncontend that warnings in the 2016 and 2017 10-K and 10-Qs, also incorporated into\n\nthe Registration Statement, of \u201csanctions and remedial actions\u201d relating to\n\nreimbursements by government programs had already translated into findings of\n\nviolations. Allegedly, CVS was refilling prescriptions without refill authorizations or\n\nnew prescriptions. The Amended Complaint refers to this as a \u201crollover practice,\u201d\n\ndescribing that in filling prescriptions CVS Health simply \u201crolled over\u201d the previous\n\nprescription into an authorization for more medication without actually receiving a\n\nrenewed or new authorization.        The failure to acknowledge these \u201cwidespread\n\nviolations,\u201d the Amended Complaint alleges, constituted omissions that made the\n\nwarnings implying only a future adverse impact misleading. But again, against that\n\n2016 and 2017 timeframe, the data alleged to show a contemporaneous threat\n\nconsisted of, for example, Former Employee 24\u2019s disclosure that while he was Director\n\nof Operations from 2015 through November 2019, 1,500 assisted living communities\n\n\u201cbroke state and federal law.\u201d It also cites \u201clongstanding lack of legal compliance . . .\n\nwhich had been ongoing since at least 2012.\u201d         One would have to assume that\n\n\n\nwhich Omnicare lost only 80,000-90,000 beds a year. Bed loss \u2018creeped back up\u2019\n(above the 80,000-90,000 bed annual level) following the 2015 CVS acquisition, and\nsubsequently got worse.\u201d (ECF No. 51-2 \u00b6 139.) This paragraph still lacks absolute\nnumbers or even the specific allegation that the loss of 80,000-90,000 beds was a net\nloss, not offset by new beds.\n                                           12\n\f\u201congoing\u201d meant \u201call the time\u201d to find that the threat of sanctions was\n\ncontemporaneous with the warnings. But more importantly, while there are plenty\n\nof allegations that reimbursement violations had occurred at some point, there are\n\nno factual allegations that any significant sanctions had in fact been imposed at a\n\ntime when CVS Health was simply warning of the future possibility of them. So\n\nperhaps certain government agencies were paying attention to the \u201crollover practices\u201d\n\nand issuing warnings about them, but the Amended Complaint does not provide any\n\nbasis for believing that those warnings would or had turned into sanctions that\n\nthreatened CVS Health\u2019s continuing business or revenue.\n\n      There is \u201cno absolute duty to disclose all material information,\u201d and only that\n\ninformation which securities law imposes a \u201cspecific obligation\u201d to disclose must be\n\ndisclosed. Cooperman v. Individual, Inc., 171 F.3d 43, 49-50 (1st Cir. 1999). Only\n\nmaterially misleading statements are forbidden. A materially misleading statement\n\nomits a fact which, had it been disclosed, \u201cwould have been viewed by the reasonable\n\ninvestor as having significantly altered the \u2018total mix\u2019 of information made available.\u201d\n\nIn re WebSecure, Inc. Sec. Litig., 182 F.R.D. 364, 369 (D. Mass. 1998) (quoting In re\n\nComputervision Sec. Litig., 869 F. Supp. 56, 62 (D. Mass. 1994)). For example, a\n\nstatement that a company endorsed its business model as key to its growth did not\n\nrequire the additional disclosure that only a majority of its board, faced with a\n\nminority\u2019s opposition, favored the approach. Cooperman, 171 F.3d at 51. Thus, even\n\nif rollover practices were receiving unwelcome attention, there would be no\n\n\n\n\n                                          13\n\fcontradiction of the CVS warning of future adverse actions if no sanctions were being\n\nimposed or were imminent.\n\n       The third set of allegations relates to the same complaint made in City of\n\nMiami; that CVS wrote down its goodwill far too late, that goodwill was being\n\nimpaired over a long time and was not acknowledged in the financial statements until\n\nthe first goodwill write-down\u2014of some $2.3 billion\u2014was taken in November 2016\n\nand, after that date, was written down far too slowly. Instead, the 2017 10-K reported\n\nthat goodwill \u201ccould, in the future, become impaired.\u201d (ECF No. 51 \u00b6 274.) The 2017\n\n10-K repeated the admonition noted above that any problems with government\n\nbenefit reimbursements were future risks, and the Amended Complaint takes the\n\nsame issue with the temporal accuracy of that warning as discussed above. There is\n\nno greater specificity in the Amended Complaint about the actual state of CVS\n\nHealth\u2019s LTC business than there was in City of Miami. As the First Circuit said in\n\nthat case, \u201cdespite its length, [the complaint] fails to allege sufficiently specific facts\n\nabout the state of the LTC business at particular points in time to enable us to\n\nconclude that any of the goodwill write-downs were too late or that any of defendants\u2019\n\nalleged misstatements contradicted the state of that business as it then stood.\u201d City\n\nof Miami, 46 F.4th at 31.\n\n       The Amended Complaint also repeats CVS\u2019s touting of the synergies that\n\nenabled it to successfully integrate the Omnicare business into the protocols for its\n\nown retail business. In fact, the plaintiffs complain, CVS was never able integrate\n\nits business model and the CVS model was antithetical to the practices that had made\n\n\n\n                                            14\n\fOmnicare successful\u2014 individual relationships between customers and sales\n\npersonnel, decentralized distribution, and accommodation of individual customer\n\nneeds. That may have been the case, but the plaintiffs\u2019 proffer of proof is the losses\n\nsuffered in Omnicare customers and, again, there is not a sufficiently precise\n\ncorrelation of time.\n\n       Finally, the plaintiffs assert that the Amended Complaint alleges an\n\nindependent basis for liability under Section 11 of the Securities Act and Item 303 of\n\nRegulation S-K: \u201cpure omissions\u201d liability for an issuer\u2019s failure to \u201cmake mandated\n\ndisclosures \u2026 in a registration statement.\u201d While Section 11(a) creates liability for a\n\n\u201cpure omission,\u201d see Macquarie Infrastructure Corporation v. Moab Partners, L.P.,\n\n601 U.S. 257, 264 (2024), this is not a pure omission case. The facts as pled, described\n\nabove, advance a theory that CVS\u2019s statements were misleading, but that it did make\n\ndisclosures on the topics the plaintiffs\u2019 claims challenge.\n\n                                 III. CONCLUSION\n\n       For all these reasons, the Court GRANTS the Motions to Dismiss (ECF Nos.\n\n52, 53).\n\nIT IS SO ORDERED.\n\n\n\n____________________________________\nMary S. McElroy,\nUnited States District Judge\nFebruary 5, 2025\n\n\n\n\n                                           15\n\f","ocr_status":2,"date_upload":"2025-09-17T08:43:28.570814-07:00","document_number":"75","attachment_number":null,"pacer_doc_id":"16102314140","is_available":true,"is_free_on_pacer":true,"is_sealed":null,"document_type":1,"description":"Memorandum and Order","acms_document_guid":""}],"date_created":"2025-02-05T06:20:18.843989-08:00","date_modified":"2025-09-18T11:37:49.224838-07:00","date_filed":"2025-02-05","time_filed":"08:34:33","entry_number":75,"recap_sequence_number":"2025-02-05.001","pacer_sequence_number":466,"description":"MEMORANDUM AND ORDER : For reasons stated within, the Court GRANTS the Motions to Dismiss (ECF 52, 53 ). So Ordered by District Judge Mary S. McElroy on 2/5/2025. (Potter, Carrie) (Entered: 02/05/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/415627000/","id":415627000,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/16065704/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/429333766/","id":429333766,"tags":[],"absolute_url":"/docket/16065704/76/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2025-02-05T06:20:18.745598-08:00","date_modified":"2025-09-18T11:37:49.301572-07:00","sha1":"1cc339d7dc4c4cd756f8908fc37f7f93e33b0b4f","page_count":1,"file_size":94165,"filepath_local":"recap/gov.uscourts.rid.47299/gov.uscourts.rid.47299.76.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.rid.47299/gov.uscourts.rid.47299.76.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:19-cv-00434-MSM-LDA       Document 76     Filed 02/05/25     Page 1 of 1 PageID #:\n                                       2440\n\n\n\n                       UNITED STATES DISTRICT COURT\n                     FOR THE DISTRICT OF RHODE ISLAND\n\n____________________________________\n                                    )\n                                    )\n                                    )\nIN RE CVS HEALTH                    )\nCORPORATION SECURITIES              )         No. 1:19-cv-434-MSM-LDA\nACT LITIGATION                      )\n                                    )\n                                    )\n____________________________________)\n\n\n\n\n                                      JUDGMENT\n\n\nIT IS ORDERED AND ADJUDGED:\n\nJUDGMENT enters in accordance with the Memo and Order of 2/5/2025\n\n                                                    Enter:\n\n                                                    /s/ Carrie L. Potter\n                                                    Deputy Clerk\n\nDated:2/5/2025\n\f","ocr_status":2,"date_upload":"2025-09-17T08:42:23.565439-07:00","document_number":"76","attachment_number":null,"pacer_doc_id":"16102314143","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Judgment","acms_document_guid":""}],"date_created":"2025-02-05T06:20:18.710993-08:00","date_modified":"2025-09-18T11:37:49.285196-07:00","date_filed":"2025-02-05","time_filed":"08:36:52","entry_number":76,"recap_sequence_number":"2025-02-05.002","pacer_sequence_number":468,"description":"JUDGMENT enters in accordance with the Memo and Order of 2/5/2025. So Ordered by District Judge Mary S. McElroy on 2/5/2025. (Potter, Carrie) (Entered: 02/05/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/414277908/","id":414277908,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/16065704/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/427913520/","id":427913520,"tags":[],"absolute_url":"/docket/16065704/74/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2025-01-22T14:20:53.188874-08:00","date_modified":"2025-09-18T11:37:49.199155-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"74","attachment_number":null,"pacer_doc_id":"16102309160","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice (Other)","acms_document_guid":""}],"date_created":"2025-01-22T14:20:53.173318-08:00","date_modified":"2025-09-18T11:37:49.179086-07:00","date_filed":"2025-01-22","time_filed":"16:31:41","entry_number":74,"recap_sequence_number":"2025-01-22.001","pacer_sequence_number":463,"description":"NOTICE by Los Angeles Fire and Police Pensions re 73 Notice (Other), [Response to Defendants' January 17, 2025 Notice of Supplemental Authority] (Rizio-Hamilton, John) (Entered: 01/22/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/413869063/","id":413869063,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/16065704/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/427481620/","id":427481620,"tags":[],"absolute_url":"/docket/16065704/73/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2025-01-17T08:18:27.347274-08:00","date_modified":"2025-09-18T11:37:49.141377-07:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"73","attachment_number":null,"pacer_doc_id":"16102307477","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice (Other)","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/427482404/","id":427482404,"tags":[],"absolute_url":"/docket/16065704/73/1/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2025-01-17T08:22:57.012172-08:00","date_modified":"2025-09-17T08:41:16.717844-07:00","sha1":"","page_count":10,"file_size":228128,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"73","attachment_number":1,"pacer_doc_id":"16102307478","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Exhibit A","acms_document_guid":""}],"date_created":"2025-01-17T08:18:27.328705-08:00","date_modified":"2025-09-18T11:37:49.120140-07:00","date_filed":"2025-01-17","time_filed":"11:09:57","entry_number":73,"recap_sequence_number":"2025-01-17.001","pacer_sequence_number":461,"description":"NOTICE by Nancy-Ann M. Deparle, David W Dorman, Anne M. Finucane, Jean-Pierre Millon, Mary L. Schapiro, Richard J. Swift, William C. Weldon, Tony L. White, Eva C. Boratto, Eva C. Borratto, CVS Health Corporation, Larry J Merlo, David M Denton, Richard M Bracken, C David Brown II, Alecia A. DeCoudreaux Re Supplemental Authority (Attachments: # 1 Exhibit A)(Farina, Steven) (Entered: 01/17/2025)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/407649721/","id":407649721,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/16065704/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/419390887/","id":419390887,"tags":[],"absolute_url":"/docket/16065704/72/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2024-11-08T13:22:25.533855-08:00","date_modified":"2025-09-18T11:37:49.096140-07:00","sha1":"2ed3191b108f17bca6bcee17182c321a4303ebf6","page_count":2,"file_size":296489,"filepath_local":"recap/gov.uscourts.rid.47299/gov.uscourts.rid.47299.72.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.rid.47299/gov.uscourts.rid.47299.72.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:19-cv-00434-MSM-LDA                   Document 72       Filed 11/08/24   Page 1 of 2 PageID #:\n                                                   2408\n         B E R NS T EI N LITO WI T Z BE R GE R & G ROS S M AN N LLP\n                                            ATTORNEYS AT LAW\n     NEW YORK \u25cf CALIFORNIA \u25cf DELAWARE \u25cf ILLINOIS \u25cf LOUISIANA\n\nJohn Rizio-Hamilton\njohnr@blbglaw.com\n(212) 554-1505\n\n\n\n\n                                                           November 8, 2024\n\nVia ECF\n\nThe Honorable Mary S. McElroy\nU.S. District Court for the District of Rhode Island\nOne Exchange Terrace\nProvidence, RI 02903\n\n          Re:         In re CVS Health Corp. Securities Act Litigation,\n                      Master File No. 1:19-cv-00434-MSM-LDA\n\nDear Judge McElroy:\n\n        Bernstein Litowitz Berger & Grossmann LLP (\u201cBLB&G\u201d) serves as Lead Counsel for Lead\nPlaintiff Los Angeles Fire and Police Pensions (\u201cLAFPP\u201d) in this matter. We write to inform the\nCourt that Anya Freedman has joined BLB&G as a partner, effective November 1, 2024.\n\n        Ms. Freedman previously worked in the Public Pensions General Counsel Division in the\nOffice of the Los Angeles City Attorney (the \u201cLA City Attorney\u2019s Office\u201d) beginning in April\n2015, serving as a Deputy City Attorney, and then as Assistant City Attorney, until she left the LA\nCity Attorney\u2019s Office on July 12, 2024. In these roles, Ms. Freedman, along with the team of\nlawyers in this Division of the LA City Attorney\u2019s Office, served as counsel to the three City of Los\nAngeles public pension plans, including LAFPP. Part of Ms. Freedman\u2019s responsibilities included\nsupervising outside counsel that represent LAFPP and the other City of Los Angeles public pension\nplans in securities litigation and other specialized matters. Consistent with the City of Los Angeles\nCharter, all engagements of outside counsel for LAFPP and the other City pension plans are based\non a transparent and competitive selection process, and subject to the joint approval of the City\nAttorney and the pension plan\u2019s board.\n\n        BLB&G and Ms. Freedman did not discuss the possibility of Ms. Freedman joining the firm\nat any time during Ms. Freedman\u2019s service with the LA City Attorney\u2019s Office. Ms. Freedman has\nno financial interest in this case. Ms. Freedman will be walled off from this litigation, until after the\nconclusion of all existing contracts between BLB&G and the City of Los Angeles, and until after at\nleast two years have elapsed since her last day of City service (July 12, 2026). Ms. Freedman\u2019s\njoining of BLB&G after leaving her position with the LA City Attorney\u2019s Office had no connection\nto LAFPP\u2019s past decisions to retain BLB&G in this or any other matter. As background, BLB&G\nwas retained by LAFPP following a robust and competitive selection process, and the decision to\nretain BLB&G in this matter preceded by nearly five (5) years Ms. Freedman\u2019s subsequent\ndecisions to leave the LA City Attorney\u2019s Office in July 2024.\n\fCase 1:19-cv-00434-MSM-LDA           Document 72       Filed 11/08/24     Page 2 of 2 PageID #:\n                                           2409\nHon. Mary S. McElroy\nNovember 8, 2024\nPage 2\n\n        In this regard, BLB&G was first selected to serve on LAFPP\u2019s outside securities monitoring\nand litigation panel in March 2018 through a competitive process that included responding to a\nRequest for Proposals, an interview with LAFPP staff, and an interview with the LAFPP Board of\nCommissioners, prior to BLB&G\u2019s ultimate selection by the LAFPP Board of Commissioners at a\npublic meeting. Thereafter, on October 3, 2019, BLB&G was selected by the LAFPP Board of\nCommissioners to represent LAFPP in connection with the above-captioned matter. This retention\nalso followed a competitive process that involved responding to a case-specific Request for\nProposals and an interview with the LAFPP Board of Commissioners. Following this retention, on\nOctober 15, 2019, LAFPP moved for appointment as Lead Plaintiff and requested the Court\u2019s\napproval of BLB&G as Lead Counsel for the Class, which the Court granted on August 26, 2020.\n\n       On November 5, 2024, BLB&G informed the LA City Attorney\u2019s Office and LAFPP that\nMs. Freedman joined BLB&G as a partner.\n\n\n                                           Respectfully submitted,\n\n                                           /s/ John Rizio-Hamilton\n                                           John Rizio-Hamilton\n                                           BERNSTEIN LITOWITZ BERGER &\n                                           GROSSMANN LLP\n                                           1251 Avenue of the Americas\n                                           New York, NY 10020\n                                           Telephone: (212) 554-1400\n\n                                           Counsel for Los Angeles Fire and Police Pensions\n\n\ncc: Counsel of Record (via ECF)\n\f","ocr_status":2,"date_upload":"2024-11-08T13:29:01.423868-08:00","document_number":"72","attachment_number":null,"pacer_doc_id":"16102285279","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice (Other)","acms_document_guid":""}],"date_created":"2024-11-08T13:22:25.518792-08:00","date_modified":"2025-09-18T11:37:49.075668-07:00","date_filed":"2024-11-08","time_filed":"16:05:41","entry_number":72,"recap_sequence_number":"2024-11-08.001","pacer_sequence_number":459,"description":"NOTICE by Los Angeles Fire and Police Pensions (Rizio-Hamilton, John) (Entered: 11/08/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/405768316/","id":405768316,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/16065704/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/416826066/","id":416826066,"tags":[],"absolute_url":"/docket/16065704/71/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2024-10-21T13:19:28.263574-07:00","date_modified":"2025-09-18T11:37:49.052114-07:00","sha1":"96465a9441efd60be2aa3ec7dccb4d683b0c7a97","page_count":1,"file_size":281752,"filepath_local":"recap/gov.uscourts.rid.47299/gov.uscourts.rid.47299.71.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.rid.47299/gov.uscourts.rid.47299.71.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:19-cv-00434-MSM-LDA            Document 71        Filed 10/21/24       Page 1 of 1 PageID #:\n                                            2407\n\n\n\n                             UNITED STATES DISTRICT COURT\n                               DISTRICT OF RHODE ISLAND\n\n\n                                                      Master File No. 1:19-cv-00434-\n  IN RE CVS HEALTH CORPORATION                        MSM-LDA\n  SECURITIES ACT LITIGATION\n                                                      CLASS ACTION\n\n\n                             NOTICE OF WITHDRAWAL OF\n                         APPEARANCE OF JAI CHANDRASEKHAR\n\n           PLEASE TAKE NOTICE THAT, pursuant to LR Gen 206(d) of the Local Rules of the\n\n United States District Court of Rhode Island, Bernstein Litowitz Berger & Grossmann LLP,\n\n (\u201cBernstein Litowitz\u201d) hereby withdraws Jai K. Chandrasekhar as counsel of record for Lead\n\n Plaintiff Los Angeles Fire and Police Pensions (\u201cLead Plaintiff\u201d) in the above-referenced matter.\n\n The Bernstein Litowitz attorneys of record will continue to represent the Lead Plaintiff in this\n\n matter.\n\n  Dated: October 21, 2024                           Respectfully submitted,\n\n                                                    BERNSTEIN LITOWITZ BERGER\n                                                     & GROSSMANN LLP\n\n                                                     /s/ John J. Rizio-Hamilton\n                                                    John J. Rizio-Hamilton\n                                                    1251 Avenue of the Americas\n                                                    New York, New York 10020\n                                                    Telephone: (212) 554-1502\n                                                    johnr@blbglaw.com\n\n                                                    Lead Counsel for Lead Plaintiff\n\f","ocr_status":2,"date_upload":"2024-10-21T13:21:10.761550-07:00","document_number":"71","attachment_number":null,"pacer_doc_id":"16102279097","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Notice (Other)","acms_document_guid":""}],"date_created":"2024-10-21T13:19:28.247040-07:00","date_modified":"2025-09-18T11:37:49.033755-07:00","date_filed":"2024-10-21","time_filed":"15:25:48","entry_number":71,"recap_sequence_number":"2024-10-21.001","pacer_sequence_number":457,"description":"NOTICE by Los Angeles Fire and Police Pensions [Notice of Withdrawal of Appearance of Jai Chandrasekhar] (Rizio-Hamilton, John) (Entered: 10/21/2024)","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/393060148/","id":393060148,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/16065704/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/402118489/","id":402118489,"tags":[],"absolute_url":"/docket/16065704/70/waterford-township-police-fire-retirement-system-v-cvs-health/","date_created":"2024-06-07T08:18:33.641459-07:00","date_modified":"2025-09-18T11:37:48.954180-07:00","sha1":"ad667df2a44064a881a607047869b172b082bb35","page_count":49,"file_size":259485,"filepath_local":"recap/gov.uscourts.rid.47299/gov.uscourts.rid.47299.70.0.pdf","filepath_ia":"https://archive.org/download/gov.uscourts.rid.47299/gov.uscourts.rid.47299.70.0.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"Case 1:19-cv-00434-MSM-LDA   Document 70   Filed 06/07/24   Page 1 of 49 PageID #:\n                                   2358                                              1\n\n\n\n 1                  IN THE UNITED STATES DISTRICT COURT\n                      FOR THE DISTRICT OF RHODE ISLAND\n 2\n\n 3\n\n 4    * * * * * * * * * * * * * * * * * * 19-CV-434-MSM\n      WATERFORD TOWNSHIP POLICE & FIRE *\n 5    RETIREMENT SYSTEM, Individually   *\n      and on Behalf of All Others       *\n 6    Similarly Situated,               *\n                           Plaintiff    *\n 7                                      *\n                     vs.                * MAY 6, 2024\n 8                                      *\n      CVS HEALTH CORPORATION,           *\n 9    et als,                           *\n                           Defendants   *\n10                                      * VIA VIDEO CONFERENCE\n      * * * * * * * * * * * * * * * * * *\n11\n\n12\n\n13\n                    BEFORE THE HONORABLE MARY S. McELROY\n14\n                                  DISTRICT JUDGE\n15\n                              (MOTIONS TO DISMISS)\n16\n\n17\n\n18    APPEARANCES:\n\n19    FOR THE PLAINTIFF:              K. JOSEPH SHEKARCHI ESQ.\n                                      Shekarchi Law\n20                                    240 Chestnut Street\n                                      Warwick, RI 02888\n21\n                                      JOHN RIZIO-HAMILTON, ESQ.\n22                                    JESSE L. JENSEN, ESQ.\n                                      Bernstein Litowitz Berger\n23                                    & Grossmann LLP\n                                      1251 Avenue of the Americas\n24                                    Floor 44\n                                      New York, NY 10020\n25\n\fCase 1:19-cv-00434-MSM-LDA   Document 70   Filed 06/07/24   Page 2 of 49 PageID #:\n                                   2359                                              2\n\n\n\n 1\n\n 2    FOR THE DEFENDANTS:             MELISSA COLLINS, ESQ.\n      CVS DEFENDANTS                  Williams & Connolly LLP\n 3                                    680 Maine Avenue SW\n                                      Washington, DC 20024\n 4\n                                      GEOFFREY R. CHEPIGA, ESQ.\n 5    AETNA DIRECTOR                  Paul Weiss Rifkind Wharton &\n      DEFENDANTS:                     Garrison LLP\n 6                                    1285 Avenue of the Americas\n                                      New York NY 10019-6064\n 7\n\n 8    Court Reporter:                 Denise P. Veitch, RPR\n                                      One Exchange Terrace\n 9                                    Providence, RI 02903\n\n10\n\n11\n\n12\n\n13\n\n14\n\n15\n\n16\n\n17\n\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\fCase 1:19-cv-00434-MSM-LDA   Document 70    Filed 06/07/24   Page 3 of 49 PageID #:\n                                   2360                                               3\n\n\n\n 1      Via Video Conference\n\n 2      6 MAY 2024 -- 10:00 A.M.\n\n 3               THE COURT:     Good morning.         I'm just waiting for\n\n 4      everybody to connect.\n\n 5               Are we ready to proceed on motions to dismiss\n\n 6      which are at ECF 52 and 53?\n\n 7               MS. COLLINS:     Yes, your Honor.\n\n 8               THE COURT:     Okay.      I'll ask counsel to identify\n\n 9      themselves and the parties that they're representing\n\n10      for the record, please.\n\n11               MS. COLLINS:     Good morning.          Melissa Collins of\n\n12      Williams & Connolly on behalf of the CVS Defendants.\n\n13               THE COURT:     Good morning.\n\n14               MR. SHEKARCHI:      Good morning, your Honor.\n\n15      Joe Shekarchi and John Rizio-Hamilton representing the\n\n16      Plaintiffs; and with permission of the Court I will\n\n17      turn over to John Rizio-Hamilton to make the formal\n\n18      argument.     I wanted to just make the introduction.\n\n19               THE COURT:     Okay.      Thank you, Mr. Shekarchi.\n\n20               MR. DAWSON:     Good morning, your Honor.\n\n21      Christopher Dawson also on behalf of the CVS\n\n22      Defendants.     I will not be arguing this morning.\n\n23               THE COURT:     Okay.\n\n24               MR. CHEPIGA:     Good morning, your Honor.\n\n25      Geoffrey Chepiga for Paul Weiss on behalf of the Aetna\n\fCase 1:19-cv-00434-MSM-LDA     Document 70   Filed 06/07/24   Page 4 of 49 PageID #:\n                                     2361                                              4\n\n\n\n 1      Director Defendants.\n\n 2               THE COURT:       Okay.\n\n 3               MR. RIZIO-HAMILTON:          And your Honor, this is\n\n 4      John Rizio-Hamilton on behalf of the lead Plaintiff.                       I\n\n 5      should note that my partner, Mr. Jesse Jensen, is also\n\n 6      present, and I'm prepared to argue the CVS Defendants'\n\n 7      motion, and Mr. Jensen is prepared to handle the Aetna\n\n 8      Director Defendants' motion.\n\n 9               THE COURT:       Okay.\n\n10               MR. JENSEN:       Good morning, your Honor.\n\n11               THE COURT:       Good morning.\n\n12               Okay.       So sort of for ease of argument and\n\n13      organization, I just want to sort of let you know that\n\n14      the reason that I asked for a hearing and that we're\n\n15      having this hearing is I'm interested in your take on\n\n16      the impact of the City of Miami Fire Fighters v. CVS on\n\n17      the Amended Complaint because that opinion affirmed our\n\n18      grant of motions to dismiss in the companion\n\n19      litigation, as you know.\n\n20               Why don't we start with the argument of the CVS\n\n21      Defendants regarding motion to dismiss.\n\n22               MS. COLLINS:       Yes, your Honor.          And as you just\n\n23      mentioned, this case and the disclosures at issue have\n\n24      a bit of history.         I'm sure your Honor is familiar with\n\n25      some of that and so I will try to be brief with the\n\fCase 1:19-cv-00434-MSM-LDA   Document 70   Filed 06/07/24   Page 5 of 49 PageID #:\n                                   2362                                              5\n\n\n\n 1      background; and then I'm going to turn to the two\n\n 2      aspects of the current Complaint that Plaintiff\n\n 3      contends are different from the prior cases, so,\n\n 4      different from Fire Fighters, but -- and the LPF case\n\n 5      that I will also discuss.          Those are customer loss\n\n 6      allegations and its prescription rollover allegations.\n\n 7      As I'll explain, those allegations have been considered\n\n 8      and rejected by prior courts and do not state a claim\n\n 9      here either.\n\n10               This case is primarily about the goodwill of\n\n11      CVS's Long-Term Care, or LTC unit.             I'll be very quick\n\n12      with the summary of the underlying disclosures, but I'm\n\n13      happy to go into more detail if the Court would like.\n\n14               The first time that the LTC unit goodwill was\n\n15      broken up specifically was in the third quarter of\n\n16      2016 10-K.     There, CVS disclosed that the LTC unit's\n\n17      value exceeded its carrying amount by 7 percent.                   That\n\n18      7 percent was repeated, was repeated in the 2016 10-K,\n\n19      which is incorporated into the offering documents at\n\n20      issue in this case.       By the 2017 10-K, which is also\n\n21      part of the offering documents here, CVS disclosed that\n\n22      the fair value of the LTC unit had exceeded the\n\n23      carrying amount by only 1 percent, which was a decline\n\n24      from the prior 7 percent.          In connection with this\n\n25      change, CVS disclosed that our multi year cash flow\n\fCase 1:19-cv-00434-MSM-LDA   Document 70   Filed 06/07/24   Page 6 of 49 PageID #:\n                                   2363                                              6\n\n\n\n 1      projections for our LTC recording unit had declined\n\n 2      from the prior year due to customer reimbursement\n\n 3      pressures, industry trends such as lower occupancy in\n\n 4      skilled nursing facilities, and client retention rates.\n\n 5      The disclosure went on to warn that if CVS didn't\n\n 6      achieve its forecast, quote, It is reasonably possible\n\n 7      that the operational performance of the LTC reporting\n\n 8      unit could be below our current expectations in the\n\n 9      near term and the LTC reporting unit could be deemed to\n\n10      be impaired by a material amount.\n\n11               In the subsequent months those challenges did\n\n12      continue.     CVS did not meet its forecast, so it took a\n\n13      series of two goodwill write-downs; first in August of\n\n14      2018 and then in February of 2019.             That second\n\n15      goodwill write-down spurred a series of lawsuits, all\n\n16      arguing that CVS's disclosures were misleading because\n\n17      CVS should have written down the goodwill of its\n\n18      Long-Term Care unit earlier.           Two of those cases wound\n\n19      up in front of your Honor; this case, and the 1934 Act\n\n20      case Fire Fighters, which you've mentioned.                 Another\n\n21      case, Labourers' Pension Fund, LPF, was proceeding in\n\n22      New York state court, and yet another in Rhode Island\n\n23      state court.     Both are 1933 cases, like this one.                 All\n\n24      of those other cases have been dismissed with\n\n25      prejudice.\n\fCase 1:19-cv-00434-MSM-LDA   Document 70    Filed 06/07/24   Page 7 of 49 PageID #:\n                                   2364                                               7\n\n\n\n 1               So this Court looked at the same disclosures and\n\n 2      dismissed Fire Fighters.           It was a 1934 Act case, but\n\n 3      your Honor dismissed because there were no false or\n\n 4      misleading statements, which is the same inquiry that\n\n 5      is at issue here for the same disclosures.                  This Court\n\n 6      concluded even assuming significant customer loss,\n\n 7      quote, CVS did publicly disclose to investors the\n\n 8      challenges plaguing the LTC business that could lead to\n\n 9      a goodwill impairment; and, quote, No reasonable\n\n10      investor could have believed that the issues the\n\n11      plaintiff claimed were omitted did not exist.\n\n12               The First Circuit then affirmed, concluding that\n\n13      your Honor's, quote, assessment was on the mark.\n\n14      Alleging customer losses was not enough.                 To state a\n\n15      claim those allegations would have had to have been,\n\n16      quote, inconsistent with the company's goodwill\n\n17      disclosures, and they were not.\n\n18               Importantly, the First Circuit also looked at a\n\n19      proposal for an amended complaint in Fire Fighters and\n\n20      concluded that the new allegations that the Plaintiffs\n\n21      relied on there still did not contradict CVS's\n\n22      disclosures.\n\n23               In the other two cases, in LPF the New York\n\n24      Appellate Division dismissed 1933 Act claims identical\n\n25      to the ones at issue here, holding as to the goodwill\n\fCase 1:19-cv-00434-MSM-LDA   Document 70   Filed 06/07/24   Page 8 of 49 PageID #:\n                                   2365                                              8\n\n\n\n 1      claims that there were no actionable statements under\n\n 2      any prong of Omnicare and that CVS's risk warnings were\n\n 3      not misleading in light of the, quote, total mix of\n\n 4      information.     The Rhode Island Superior Court also\n\n 5      dismissed the same 1933 Act claims, adopting the\n\n 6      persuasive reasoning and findings of this Court, the\n\n 7      First Circuit, the New York Appellate Division, and\n\n 8      agreeing, quote, that plaintiffs failed as a matter of\n\n 9      law to show that CVS made actionable false or\n\n10      misleading statements.        So --\n\n11               THE COURT:     Can I interrupt you there.             So are\n\n12      you arguing that it doesn't make a difference that this\n\n13      case isn't pled in fraud, that the difference is\n\n14      immaterial because there are no false or misleading\n\n15      statements so they don't get to the, whether the\n\n16      heightened pleading standard has been met?\n\n17               MS. COLLINS:     Correct.      I think it doesn't make\n\n18      a difference that this case is not pled in fraud\n\n19      because you can accept all of their allegations as they\n\n20      were pled as true, and you look at the disclosures in\n\n21      context and they're not misleading to a reasonable\n\n22      investor.     I also think it's important when you're\n\n23      thinking about the sort of what needs to be pled here,\n\n24      to look back at Omnicare, which is a Section 11 case, a\n\n25      1933 Act case which talks at length about what a\n\fCase 1:19-cv-00434-MSM-LDA     Document 70   Filed 06/07/24   Page 9 of 49 PageID #:\n                                     2366                                              9\n\n\n\n 1      plaintiff needs to plead to show an omission of a fact\n\n 2      to state a claim that an opinion statement, like the\n\n 3      goodwill statements here, would be misleading.                    And\n\n 4      they say that's no small task for an investor; you have\n\n 5      to actually lay out the things that would not, cannot\n\n 6      be squared with what a reasonable investor would take\n\n 7      from the opinion.         So the fact that this is not pled in\n\n 8      fraud I think does not make a difference in the\n\n 9      outcome.\n\n10               Okay.       And so Plaintiff here does not argue that\n\n11      your Honor or the First Circuit misapplied federal\n\n12      securities law; instead, it's trying to distinguish its\n\n13      complaint from others.          It focuses in its opposition on\n\n14      sort of two groups of factual allegations that it says\n\n15      are different.        The first is the allegations about\n\n16      customer losses, and the second are the allegations\n\n17      about rollover practices.            As I'll explain, those\n\n18      allegations not different from what has been looked at\n\n19      from prior courts, and they don't change the outcome\n\n20      that this complaint should be dismissed.                  And while I\n\n21      do think it's helpful to know why this is not different\n\n22      from the other cases, I also want to be clear that this\n\n23      case should be dismissed even if it were the first case\n\n24      filed, dismissed on the merits, as this Court and the\n\n25      prior courts have all reached the same conclusion,\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 10 of 49 PageID #:\n                                    2367                                       10\n\n\n\n 1      applying the same federal securities laws to the same\n\n 2      disclosures and the same underlying events, we think\n\n 3      it's the right conclusion because CVS's disclosures\n\n 4      were not misleading.\n\n 5               So -- did you have a question?            Sorry.\n\n 6               THE COURT:      No.\n\n 7               MS. COLLINS:      Okay.    I'll start with the\n\n 8      customer losses.       So Plaintiff contends that its\n\n 9      Complaint pleads new and different facts that haven't\n\n10      been considered by any other court about the customer\n\n11      losses that the LTC business was experiencing, and that\n\n12      also those facts they plead are sufficient to state a\n\n13      claim about CVS's goodwill disclosures.              Plaintiff is\n\n14      incorrect on both accounts.\n\n15               So first, in its briefing Plaintiff emphasizes\n\n16      three ways in which it says its customer loss\n\n17      allegations are more robust than the other complaints.\n\n18      The first is an allegation that CVS lost 25 to\n\n19      33 percent of the LTC business; the second is an\n\n20      allegation that CVS held a \"come to Jesus\" meeting in\n\n21      2016; and the third is an allegation that CVS acquired\n\n22      other pharmacies but lost many of those customers.\n\n23      These are repeated over and over throughout Plaintiffs'\n\n24      brief as reasons why its complaint is different.                 But\n\n25      these are not new allegations.           These same allegations\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 11 of 49 PageID #:\n                                    2368                                       11\n\n\n\n 1      were in the proposed amended complaint in Fire Fighters\n\n 2      that the First Circuit considered and rejected.                 Those\n\n 3      plaintiffs in Fire Fighters lifted the exact same 25 to\n\n 4      33 percent and come to Jesus allegations directly from\n\n 5      this Complaint, explicitly relying on this Complaint\n\n 6      and its confidential witnesses for those allegations.\n\n 7      And that complaint also copied allegations about failed\n\n 8      acquisitions that relied on this case's confidential\n\n 9      witnesses.\n\n10               But none of that moved the needle for the First\n\n11      Circuit, which looked at the allegations the plaintiff\n\n12      there relied on as saying that they now would overcome\n\n13      the deficiencies in Fire Fighters, and the\n\n14      First Circuit concluded that even those allegations did\n\n15      not, quote, connect defendants' public statements with\n\n16      contradictory contemporaneous facts, or, quote,\n\n17      demonstrate that the further anecdotal losses described\n\n18      by the new CWs materially exceeded the losses\n\n19      recognized by CVS.\n\n20               And the First Circuit wasn't alone in that.                The\n\n21      LPF court considered and rejected a substantially\n\n22      similar allegation that the LTC business had lost up to\n\n23      25 percent of its customers.          And your Honor in\n\n24      Fire Fighters credited significant customer losses and\n\n25      in concluding that the disclosures were not misleading.\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 12 of 49 PageID #:\n                                    2369                                       12\n\n\n\n 1      So they're not new allegations, and they don't state a\n\n 2      claim here any more than they do elsewhere.\n\n 3               Plaintiffs' main theory is that its complaint\n\n 4      shows that the LTC business's goodwill was already\n\n 5      impaired at the time of the offering documents, but\n\n 6      that's just a disagreement with CVS's accounting\n\n 7      judgment and it's not actionable, as this Court\n\n 8      recognized in Fire Fighters.          The statements about\n\n 9      goodwill are subjective statements of opinion evaluated\n\n10      under the Supreme Court's Omnicare decision; and I can\n\n11      walk through that in great detail if you'd like, but\n\n12      I'll try to keep it brief.          The bottom line is that\n\n13      Omnicare does not allow a plaintiff to state a claim\n\n14      just by disagreeing with how CVS assessed the facts\n\n15      that went into its goodwill analysis.             Omnicare\n\n16      recognizes that opinions rest on competing facts and\n\n17      only provides for liability or omission of fact when\n\n18      that fact, quote, cannot be squared with the fair\n\n19      reading of the disclosures ans context.\n\n20               And we cite numerous cases in our brief,\n\n21      including GE, Ascena Retail Corporation and, of course,\n\n22      Fire Fighters, all dismissing where plaintiffs raise\n\n23      the same sorts of allegations as here, that a company\n\n24      should have recognized goodwill impairment earlier\n\n25      because the plaintiff can point to signs of trouble in\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 13 of 49 PageID #:\n                                    2370                                       13\n\n\n\n 1      the business.\n\n 2               That dismissal is even more appropriate here in\n\n 3      light of CVS's disclosures.          Far from the rosy picture\n\n 4      that Plaintiff tries to imply, there's no dispute that\n\n 5      CVS disclosed declining fair value in the LTC unit,\n\n 6      lowered financial projections for a number of reasons,\n\n 7      including client retention rates and a near term\n\n 8      possibility of impairment.\n\n 9               This Court already looked at those disclosures\n\n10      in Fire Fighters, and that same analysis applies here.\n\n11      You credited customer loss, even assumed for the sake\n\n12      of argument that there were omissions about customer\n\n13      loss, and still concluded that CVS had disclosed the\n\n14      relevant challenges and no reasonable investor could\n\n15      have believed the issues did not exist.\n\n16               These Plaintiffs, the Plaintiff here does not\n\n17      raise any new issues, (indecipherable) but the same\n\n18      types of issues that were addressed in Fire Fighters,\n\n19      and so the same analysis applies.\n\n20               To the extent that Plaintiff argues that\n\n21      referencing customer retention rates is somehow\n\n22      insufficient in the face of its allegations of\n\n23      significant customer loss, that's incorrect.                In the\n\n24      disclosures it was not just a stray reference of\n\n25      customer retention rates being an issue; it was in the\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 14 of 49 PageID #:\n                                    2371                                       14\n\n\n\n 1      context of explaining that financial projections had\n\n 2      decreased, fair value had gone from 7 percent above\n\n 3      carrying value to only 1 percent above carrying value,\n\n 4      so it's directly tied to negative financial impact on\n\n 5      the LTC business.\n\n 6               A securities plaintiff is not entitled to its\n\n 7      preferred wording in disclosures, and, as this Court\n\n 8      said, quote, CVS was under no obligation to spell out\n\n 9      the extent of customer retention difficulties simply\n\n10      because it mentioned them.          The same remains true today\n\n11      as it was in the Fire Fighters decision.\n\n12               So that's customer losses.          There's no basis in\n\n13      the Complaint to conclude, even crediting all about\n\n14      Plaintiffs' allegations that they rendered CVS's\n\n15      statements misleading.\n\n16               The other supposed difference is rollover\n\n17      allegations.\n\n18               THE COURT:      Excuse me; I apologize.\n\n19               MS. COLLINS:      Do you want a minute?\n\n20               THE COURT:      You can proceed.\n\n21               MS. COLLINS:      I'll also take a drink.\n\n22               Plaintiffs' theory here on rollover allegations\n\n23      relies on allegations about prescription filing\n\n24      practices that are lifted wholesale from an entirely\n\n25      different lawsuit, a false claims act case called\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 15 of 49 PageID #:\n                                    2372                                       15\n\n\n\n 1      Bassan.     It's referenced in the Complaint by that name.\n\n 2      That case was sealed until December 2019, long after\n\n 3      the disclosures and the write-down at issue here, after\n\n 4      even this case started.         It's still going on in the\n\n 5      Southern District of New York.           It's in discovery;\n\n 6      there's been no finding of any misconduct by CVS.\n\n 7                Unlike the other customer loss allegations that\n\n 8      we were just discussing, these are not unique to\n\n 9      Plaintiffs' complaint.         They've already been dismissed\n\n10      in other cases.       The Fire Fighters plaintiffs literally\n\n11      copied and pasted rollover allegations from this\n\n12      Complaint into their proposed second amended complaint,\n\n13      and that made no difference in the First Circuit.                   The\n\n14      rollover allegations were referenced in the\n\n15      First Circuit briefing and still the First Circuit\n\n16      concluded there were no contradictory contemporaneous\n\n17      facts in the new allegations compared to CVS's\n\n18      disclosures.\n\n19                And these rollover allegations were also in the\n\n20      Rhode Island state court, which was dismissed.                And\n\n21      those dismissals, again, are with good reason.                CVS\n\n22      disclosed it was being investigated, which is what it\n\n23      knew.     The complaint does not allege that CVS knew of\n\n24      the litigation before it was unsealed in December 2019,\n\n25      but Plaintiff nonetheless argues that CVS's prior\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 16 of 49 PageID #:\n                                    2373                                       16\n\n\n\n 1      disclosures were somehow misleading because they didn't\n\n 2      disclose the later allegation.           The theory goes nowhere\n\n 3      for a couple of reasons, and first and foremost courts\n\n 4      recognize that securities disclosure is not, quote, a\n\n 5      rite of confession.        Securities law is very clear that\n\n 6      companies do not have to accuse themselves of\n\n 7      uncharged, unadjudicated misconduct.              The same goes\n\n 8      with financial statements.          They don't automatically\n\n 9      become misleading just because a company does not\n\n10      disclose some possible misconduct may have contributed\n\n11      to the results.       We cite the case law in our briefs.\n\n12      I'm happy to discuss further if you'd like, but this is\n\n13      not a controversial proposition.            Plaintiffs don't\n\n14      dispute it or try to distinguish our cases.               They don't\n\n15      in their briefing point to any cases that apply their\n\n16      theory. They just ignore this legal point which is\n\n17      dispositive.\n\n18               Under Plaintiffs' theory, CVS would have been\n\n19      required to assume that an investigation was ultimately\n\n20      going to result in a lawsuit, assume that they would be\n\n21      found at fault in the lawsuit, which still hasn't\n\n22      happened, and then somehow account for that in their\n\n23      financial statements.         And that's not the law, so your\n\n24      Honor can stop there because that's what Plaintiffs'\n\n25      theory of the case would require.\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 17 of 49 PageID #:\n                                    2374                                       17\n\n\n\n 1                But even if the Court were to go further, their\n\n 2      particular theory makes no sense in the context of\n\n 3      Plaintiffs' case.       This case arises out of a goodwill\n\n 4      impairment.      Plaintiff is supposedly pouring out facts\n\n 5      that in its view would show that goodwill was impaired.\n\n 6      But the rollover allegations have nothing to do with\n\n 7      the goodwill calculation.          Plaintiff does not allege\n\n 8      that anything related to the rollover actually factored\n\n 9      into the goodwill impairment that CVS announced.\n\n10                The only supposed connection that Plaintiff\n\n11      attempts to make in its briefing to goodwill is the\n\n12      argument that the potential for litigation would be a\n\n13      trigger for goodwill impairment testing.              But that also\n\n14      failed.     First, the portion of the accounting guidance\n\n15      that Plaintiff relies on in its Complaint refers to\n\n16      actual litigation, not hypothetical, unknown\n\n17      litigation, as one of the events and circumstances that\n\n18      a company assesses when determining whether to test for\n\n19      goodwill impairment; and, second, once you're even\n\n20      considering those factors, that's back to a\n\n21      disagreement with CVS's accounting judgment regarding\n\n22      how to assess what necessitates goodwill testing.                 It's\n\n23      just not the case that you have to test for goodwill\n\n24      impairment every time there's even the potential for a\n\n25      lawsuit; and that's all there was here.\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24    Page 18 of 49 PageID #:\n                                    2375                                        18\n\n\n\n 1               So one final note on rollovers.             Plaintiff also\n\n 2      likes to use in its Complaint and its briefing the\n\n 3      phrase \"inflated revenue\" to say that goodwill was\n\n 4      impaired.     It's not, it's not entirely clear to me what\n\n 5      Plaintiff means by that.         CVS booked revenue for sales\n\n 6      that it actually made to real customers.               There are no\n\n 7      allegations those numbers were recorded incorrectly.\n\n 8      And if Plaintiff is trying to say that CVS made sales\n\n 9      that it shouldn't have, that's back to assuming\n\n10      misconduct and those legal principles that you don't\n\n11      have to, companies don't have to accuse themselves of\n\n12      misconduct or alter their financial statements because\n\n13      some suspectible (phonetic) misconduct may contribute\n\n14      to the numbers.\n\n15               Very briefly, my last point, I've been focusing\n\n16      mostly on the goodwill disclosures.               That's the focus\n\n17      of the briefing, and I think that's the core of the\n\n18      case here.     Plaintiff also tries to claim that CVS's\n\n19      risk warnings were misleading and the disclosures\n\n20      violated Regulation S-K, so I'm just going to briefly\n\n21      address those.\n\n22               Both theories are grounded in the notion that\n\n23      CVS's disclosures did not adequately indicate the risks\n\n24      that were affecting the business.            These theories were\n\n25      dealt with and dismissed in other cases:               The LPF in\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 19 of 49 PageID #:\n                                    2376                                       19\n\n\n\n 1      Rhode Island state court, plaintiffs alleged both.                 The\n\n 2      Fire Fighters case involved the risk warnings.\n\n 3               Plaintiffs don't contend their arguments are\n\n 4      different here; they just go back to the same customer\n\n 5      loss allegations and rollover allegations that they\n\n 6      relied on for their other arguments, and they're no\n\n 7      more successful here than elsewhere.              Plaintiffs'\n\n 8      approach is to cherry-pick statements from the CVS\n\n 9      disclosures as a whole, but ignore the context of CVS's\n\n10      LTC-specific disclosures and then complain that the\n\n11      impact of the risks on LTC unit weren't disclosed the\n\n12      way the Plaintiff wanted.          But putting a Reg S-K or a\n\n13      risk warning on the Complaint doesn't fundamentally\n\n14      change Plaintiffs' theories or the reasons why they\n\n15      fail.    Fatal to all of these theories is that CVS did\n\n16      disclose customer losses negatively affecting the LTC\n\n17      unit.    Plaintiffs' insistence on an earlier goodwill\n\n18      write-down is still just a disagreement with CVS's\n\n19      accounting judgment, and CVS is under no obligation to\n\n20      accuse itself of misconduct.          When you look at the\n\n21      disclosures in context from your Honor's Fire Fighters\n\n22      opinion, no reasonable investor could have believed\n\n23      that the issues Plaintiff claims were omitted, did not\n\n24      exist.    The same is true here.\n\n25               So for all of those reasons and the reasons in\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 20 of 49 PageID #:\n                                    2377                                       20\n\n\n\n 1      our brief, we respectfully request that the Court\n\n 2      dismiss the Complaint with prejudice.\n\n 3               THE COURT:      Okay.    Thank you, Ms. Collins.\n\n 4               I don't know if you guys can hear the drumbeat\n\n 5      in the background, but there's a protest going on\n\n 6      across the street, so if it disturbs you let me know.\n\n 7               MS. COLLINS:      I cannot hear anything.\n\n 8               THE COURT:      There's nothing I can do about it,\n\n 9      but at least you'll know.\n\n10               Mr. Rizio-Hamilton, would you like to respond\n\n11      before we then get to the Aetna Defendants' motion, or\n\n12      would you like to hear both motions first?\n\n13               MR. RIZIO-HAMILTON:        I would like to respond, if\n\n14      that's okay with you, your Honor.\n\n15               THE COURT:      Fine with me.\n\n16               MR. RIZIO-HAMILTON:        Thank you so much.\n\n17               Let me begin where your Honor began, which is,\n\n18      how does the First Circuit's decision in the 10(b) case\n\n19      affect this one; and I think that the theme of\n\n20      Ms. Collins' presentation is that it requires dismissal\n\n21      of this case, and I respectfully very much disagree\n\n22      with that, and I'd like to explain why.\n\n23               So I think first it's important to understand\n\n24      exactly what the First Circuit held, and what the\n\n25      First Circuit held is set forth on page 31 of that\n\fCase 1:19-cv-00434-MSM-LDA    Document 70 Filed 06/07/24   Page 21 of 49 PageID #:\n                                     2378                                       21\n\n\n\n 1      opinion.     And it says, (Reading) Close review of the\n\n 2      complaint reveals that despite its length it fails to\n\n 3      allege sufficiently specific facts about the state of\n\n 4      the LTC business and particular point in time to enable\n\n 5      us to conclude that any of the goodwill write-downs\n\n 6      were too late or that any of defendants' alleged\n\n 7      misstatements contradicted the state of the business as\n\n 8      it then stood.\n\n 9               So the principal failing of the complaint in the\n\n10      10(b) case that the First Circuit honed in on was a\n\n11      factual one.         The First Circuit did not say that these\n\n12      disclosures were inactionable as a matter of law.                  Even\n\n13      though the defendants had argued for that vociferously\n\n14      in their papers, the First Circuit rejected that\n\n15      concept and said that the complaint failed on its\n\n16      facts.\n\n17               Now, our Complaint succeeds on the facts where\n\n18      the 10(b) complaint failed, and that's because we do\n\n19      allege specific facts about the state of the business\n\n20      at particular points in time.            In our case the key\n\n21      moment in time legally is when the offering documents\n\n22      became effective on February 9th, 2018.               That's when\n\n23      the false or misleading or incomplete nature of those\n\n24      documents is judged in a securities act case.                 And what\n\n25      we allege is that by that time, and particularly by the\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 22 of 49 PageID #:\n                                    2379                                       22\n\n\n\n 1      end of 2017, the long-term care business had lost\n\n 2      between 25 and 33 percent of its customers, which is an\n\n 3      allegation that wasn't present in the 10(b) case.                 And\n\n 4      so we give a very specific and detailed allegation, and\n\n 5      that's paragraph 114 of the Complaint, about the extent\n\n 6      of the business loss and precisely when it occurred.\n\n 7      So that's big picture, point one.\n\n 8               The other set of allegations that we have that\n\n 9      was not present in the 10(b) case does concern the\n\n10      rollovers, and we allege from the time Omnicare was\n\n11      purchased, up until early 2018, it was engaged in\n\n12      inappropriate rollover practices pursuant to which it\n\n13      was dispensing hundreds of millions of dollars worth of\n\n14      prescriptions a year without a valid prescription\n\n15      because they had expired.          That too is an allegation\n\n16      that we situate very specifically as of a point in time\n\n17      prior to when the offering documents became effective.\n\n18      It was lacking in the 10(b) case.\n\n19               Another big picture point I want to make here,\n\n20      your Honor, is that because the principal failing that\n\n21      the First Circuit identified in the 10(b) was a factual\n\n22      one, the fact that our allegations are judged under\n\n23      Rule 8 does matter.        You know, Rule 8 controls here.\n\n24      It's not the heightened pleading standards of the PSLRA\n\n25      which requires a degree of factual specificity we're\n\fCase 1:19-cv-00434-MSM-LDA    Document 70 Filed 06/07/24   Page 23 of 49 PageID #:\n                                     2380                                       23\n\n\n\n 1      not held to.         And so when you couple those very\n\n 2      specific factual allegations with the fact that we're\n\n 3      judged under a Rule 8 standard, that solves the main\n\n 4      problem that the First Circuit identified.\n\n 5               Now, there's something else which is very\n\n 6      important.     This case presents a particular species of\n\n 7      legal claim that was not and could not have been an\n\n 8      issue in the 10(b) case, that your Honor has never\n\n 9      assessed in this case, and that the First Circuit\n\n10      didn't rule on in this case, and it's fundamentally\n\n11      different from the things that your Honor and the\n\n12      First Circuit considered; and that's the Item 303\n\n13      claim.\n\n14               The reason it's fundamentally different is that\n\n15      the Item 303 claim does not require us to show that a\n\n16      statement was false or even misleading.               It is what's\n\n17      called a pure omissions claim, and this is demonstrated\n\n18      by the First Circuit's decision in the Silverstrand\n\n19      case, which is the First Circuit's seminal decision on\n\n20      Item 303.     And it was most recently reaffirmed about\n\n21      six weeks ago by the United States Supreme Court in the\n\n22      MacQuarie decision.         Since that hasn't been cited in\n\n23      the briefing, I'll just read the cite into the record.\n\n24      It's 144 S.Ct. 885 at page 891, and it's a pure\n\n25      omissions claim that is uniquely available under\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 24 of 49 PageID #:\n                                    2381                                       24\n\n\n\n 1      Section 11 of the Securities Act that, as the Supreme\n\n 2      Court held in MacQuarie, is not available under\n\n 3      Section 10(b) of the Exchange Act.\n\n 4               The reason that fundamentally changes the\n\n 5      analysis is because you do not have to show that a\n\n 6      statement was misleading to plead an Item 303 claim.\n\n 7      All you have to show is that the specific information\n\n 8      that Item 303 requires to be disclosed was not fully\n\n 9      and explicitly disclosed in the offering materials; and\n\n10      here, that information that was required to be\n\n11      disclosed under Item 303 absolutely was not, and that's\n\n12      quite separate and apart from whether the disclosures\n\n13      that were made were misleading.\n\n14               What wasn't disclosed specifically that Item 303\n\n15      requires?     Two things.      One was the known material\n\n16      trend of highly significant adverse business loss on\n\n17      the order of 25 to 33 percent in the Long-Term Care\n\n18      unit.    That was a trend that was obviously known.               It\n\n19      was reported internally repeatedly and actually\n\n20      addressed in the state of the company conference calls,\n\n21      as we allege in paragraph 114 and others in that\n\n22      section of the Complaint.          It was the subject, in fact,\n\n23      of that November 2016 come to Jesus meeting that\n\n24      involved some of the most senior executives of the\n\n25      company, including --\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 25 of 49 PageID #:\n                                    2382                                       25\n\n\n\n 1               THE COURT:      Can I stop you for a second.           Can\n\n 2      you give me that cite again because I don't think I got\n\n 3      it correctly.\n\n 4               MR. RIZIO-HAMILTON:        The cite from the Supreme\n\n 5      Court case?\n\n 6               THE COURT:      Yes.\n\n 7               MR. RIZIO-HAMILTON:        Yes, your Honor.        It is\n\n 8      144 S.Ct. 885 and the pincite is 891.             The name of the\n\n 9      case is MacQuarie v. Moab.\n\n10               THE COURT:      Okay.    Thank you.\n\n11               MR. RIZIO-HAMILTON:        And, you know, what\n\n12      MacQuarie held, and I think this is really significant\n\n13      for the purposes of our discussion and particularly\n\n14      your starting point, your Honor, is that this Item 303\n\n15      pure omissions claim is not available under\n\n16      Section 10(b).       That's what the Supreme Court said.\n\n17      And the Supreme Court said it's uniquely available\n\n18      under Section 11 and Section 11 only.             So it's a\n\n19      pathway to liability that's unique; and as I'll talk\n\n20      about in a moment, under prevailing First Circuit law,\n\n21      which is set forth in that Silverstrand case that I\n\n22      mentioned, it's a really rigorous disclosure\n\n23      requirement.\n\n24               THE COURT:      Okay.    I just want to, so that we're\n\n25      clear here, this case was only issued April 12th of\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 26 of 49 PageID #:\n                                    2383                                       26\n\n\n\n 1      this year, so I intend to let the parties address it in\n\n 2      no more than three pages post-hearing if they wish to,\n\n 3      all of the parties, okay?          No more than three pages.\n\n 4               MR. RIZIO-HAMILTON:        Okay.\n\n 5               THE COURT:      All right.     Go ahead.     Keep going.\n\n 6      I didn't mean to interrupt you.\n\n 7               MR. RIZIO-HAMILTON:        No, not at all, and we\n\n 8      thank you for the opportunity.\n\n 9               So what wasn't disclosed here that Item 303\n\n10      required?     Two things principally, although the\n\n11      Complaint lists others, but I'd like to focus our\n\n12      discussion on the main two.\n\n13               THE COURT:      Okay.\n\n14               MR. RIZIO-HAMILTON:        And these are set forth in\n\n15      paragraphs 307 and 308 of the Complaint.              Number one,\n\n16      the known material adverse trend of business loss\n\n17      within the Long-Term Care unit on the order of 25 to\n\n18      33 percent of total customers as of year-end 2017\n\n19      before the offering documents became effective.                 Number\n\n20      two, the known uncertainty -- and this is significant.\n\n21      Item 303 does not require that you must have certainty\n\n22      as to whether you've done something illegal to trigger\n\n23      disclosure.      You are required to disclose known\n\n24      uncertainties under Item 303.           So with respect to the\n\n25      rollovers, the known uncertainty that the company had\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24    Page 27 of 49 PageID #:\n                                    2384                                        27\n\n\n\n 1      engaged in these practices to a material degree, and\n\n 2      then it called into serious question their ability to\n\n 3      generate the hundreds of millions of dollars that they\n\n 4      had been generating pursuant to these practices.                  And I\n\n 5      know Ms. Collins said there's been no adjudication of\n\n 6      wrongdoing, but the fact of the matter is it doesn't\n\n 7      take much thought to understand that you can't dispense\n\n 8      regulated medications without a prescription.\n\n 9               So those are the two disclosures that were\n\n10      required under Item 303.         Neither were made.          And the\n\n11      First Circuit's decision in the Silverstrand case tells\n\n12      us a lot of really important things, and it's really\n\n13      the most important decision to this branch of our claim\n\n14      because, again, this hasn't been passed upon by either\n\n15      your Honor or the First Circuit yet.\n\n16               And what Silverstrand tells is, number one,\n\n17      Item 303 is a pure omissions claim.               It does not\n\n18      require there be any misleading statement, and, in\n\n19      fact, in Silverstrand there was no misleading\n\n20      statement.     Number two, in Silverstrand, much like the\n\n21      Defendants are trying to do here, the defendants argued\n\n22      that the disclosures they had made in the offering\n\n23      documents were more than adequate to satisfy the\n\n24      Item 303 obligation.        And they were able to point to\n\n25      some very what the First Circuit called detailed\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 28 of 49 PageID #:\n                                    2385                                       28\n\n\n\n 1      disclosures about what had been going on there.                 They\n\n 2      were developing an iron replacement drug, and the\n\n 3      plaintiffs claim that they failed to disclose that\n\n 4      there had been 23 serious adverse events since the time\n\n 5      the drug had received FDA approval, and they pointed to\n\n 6      disclosures in the registration statement to the effect\n\n 7      that -- which the FDA approved, by the way -- to the\n\n 8      effect that during testing there had been associated\n\n 9      serious adverse events with the drug, including really,\n\n10      really dangerous ones like anaphylaxis that could cause\n\n11      death, as well as other very detailed disclosures about\n\n12      the issues they had encountered during the process of\n\n13      testing the drug and obtaining FDA approval; and the\n\n14      First Circuit said that's not enough to satisfy your\n\n15      303 obligation.       It's not enough to disclose some\n\n16      degree of problem to satisfy Item 303.              What you have\n\n17      to disclose is the actual full trend that you are\n\n18      encountering at the time.\n\n19               And so here, while Defendants' disclosures may\n\n20      have touched upon some problems, they actually didn't\n\n21      go as far as the disclosures that the First Circuit\n\n22      rejected in Silverstrand, which explicitly said that\n\n23      the product is tied to some serious adverse events\n\n24      including very dangerous ones like anaphylaxis; and\n\n25      they did not disclose in all events fully and\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 29 of 49 PageID #:\n                                    2386                                       29\n\n\n\n 1      explicitly, as Item 303 requires, that the long-term\n\n 2      care business had lost between 25 and 33 percent of its\n\n 3      customers and that there was a known material\n\n 4      uncertainty as to the rollovers.\n\n 5               Now, Ms. Collins said that the essence of the\n\n 6      rollover claim is that we allege that they didn't\n\n 7      disclose the allegations in the qui tam complaints,\n\n 8      which weren't unsealed until after the vote in this\n\n 9      case.    That's not so.       That fundamentally misconstrues\n\n10      the essence of our allegation.\n\n11               The essence of our allegations is that they did\n\n12      not disclose underlying practice which they knew was\n\n13      improper.     How do we know that they knew it was\n\n14      improper?     Well, at paragraphs 193 through 220 of the\n\n15      Complaint we set forth in great detail a series of\n\n16      internal communications at Omnicare and CVS through\n\n17      which they recognized over the course of years that\n\n18      their systems had this failing where they continued to\n\n19      dispense medication after the prescription has expired.\n\n20      In fact, we cite multiple and quote multiple internal\n\n21      audits that Omnicare and later CVS conducted, and we\n\n22      quote employees from e-mails saying that the scope of\n\n23      the issue is huge.        And we allege quite specifically in\n\n24      paragraphs 219 and 220 that not only was this problem\n\n25      known, but it was known to affect approximately\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 30 of 49 PageID #:\n                                    2387                                       30\n\n\n\n 1      24 percent of the facilities through which they\n\n 2      dispense prescriptions.         So it was a significant and\n\n 3      known issue, just like the business loss was a\n\n 4      significant and known trend.\n\n 5               And so this is something that neither you nor\n\n 6      the First Circuit has passed upon yet, and it's\n\n 7      something that you have to consider anew and you have\n\n 8      to consider it under the really relaxed pleading\n\n 9      standard of Rule 8, which in Silverstrand the\n\n10      First Circuit said imposes a relatively minimum burden.\n\n11      And you have to consider it under the instruction of\n\n12      the First Circuit's opinion in Silverstrand, which\n\n13      confirms that no misleading statement is required to\n\n14      state this claim and that half-measured disclosures or\n\n15      disclosures that touch upon some problems but don't\n\n16      fully disclose the known tend and uncertainties are not\n\n17      enough to win dismissal at the pleadings stage.\n\n18               Now, Ms. Collins mentioned that the Item 303\n\n19      claims were presented in the New York state court case\n\n20      and the Rhode Island state court case, and while that\n\n21      much is technically true, the fact of the matter is\n\n22      that the New York state court complaint was severely\n\n23      deficient in two factual respects: (1) is that it\n\n24      didn't include any allegations about the rollovers at\n\n25      all, and, (2) is that the sole allegation it included\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 31 of 49 PageID #:\n                                    2388                                       31\n\n\n\n 1      about the loss of business was a completely\n\n 2      unsubstantiated, unadorned allegation that the company\n\n 3      had lost between 10 and 25 percent of its business.\n\n 4                That allegation is not only less than what we\n\n 5      allege, but it is totally unsupported.              We submitted\n\n 6      the complaint to your Honor as an exhibit to my\n\n 7      declaration, and I implore you to take a look at it,\n\n 8      because when you look at that complaint and compare it\n\n 9      to ours, and particularly compare our paragraph 114 to\n\n10      the completely naked assertion in the New York state\n\n11      court complaint, you will see that our Complaint is\n\n12      head and shoulders above that one in terms of factual\n\n13      specificity and the numbers themselves.\n\n14                With respect to the Rhode Island complaint, the\n\n15      court didn't grapple with the factual allegations in\n\n16      that case, and the factual allegations were far less\n\n17      specific than ours.        I mean, I've looked at the\n\n18      complaint and I don't see that it contains any real\n\n19      allegation, much less a substantiated one, about how\n\n20      much business was lost and when.            And with respect to\n\n21      the rollovers, I don't see that it contains any real\n\n22      allegations about the materiality of the rollovers that\n\n23      we set forth in great detail.           But more than that, the\n\n24      Rhode Island state court didn't even assess it on the\n\n25      merits.     It held that the complaint was barred by\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 32 of 49 PageID #:\n                                    2389                                       32\n\n\n\n 1      collateral estoppel.        So it's not a judgment on the\n\n 2      merits that your Honor can really take guidance from.\n\n 3      And the Defendants here don't argue collateral\n\n 4      estoppel.     They kind of hint at it, but they don't\n\n 5      really argue it, and they couldn't because under\n\n 6      federal law it's not available to them.\n\n 7               We get our own fresh look under federal law, and\n\n 8      that's really what we're asking your Honor to do here;\n\n 9      and we don't think the First Circuit decision precludes\n\n10      it, particularly with respect to this Item 303 claim\n\n11      which the First Circuit has never passed on.\n\n12               Now, there's just a couple more points that\n\n13      Ms. Collins made that I want to touch on, and I'll do\n\n14      it briefly, as briefly as I can.            So Ms. Collins\n\n15      mentioned that the First Circuit effectively considered\n\n16      our allegations by way of its review of your Honor's\n\n17      denial of the 10(b) plaintiffs' motion to amend the\n\n18      judgment.     So I think it's important to understand\n\n19      first things first, which is what your Honor held on\n\n20      that motion.\n\n21               What your Honor held on that motion wasn't that\n\n22      those allegations failed to state a claim.               Your Honor\n\n23      held that the 10(b) plaintiffs unduly delayed at\n\n24      seeking leave to amend.         Your Honor didn't consider\n\n25      those allegations on the merits.            So your Honor has\n\fCase 1:19-cv-00434-MSM-LDA    Document 70 Filed 06/07/24   Page 33 of 49 PageID #:\n                                     2390                                       33\n\n\n\n 1      never passed on the allegations that were lifted from\n\n 2      our Complaint, much less under the Rule 8 standard for\n\n 3      a securities act claim, much less under Item 303.\n\n 4               On appeal, the First Circuit merely found that\n\n 5      there was no clear error or manifest injustice in your\n\n 6      Honor's decision.         The suggestion that the\n\n 7      First Circuit substantively evaluated, much less deeply\n\n 8      analyzed the merits of our factual allegations, is not\n\n 9      true.    Nowhere in the First Circuit's opinion did it\n\n10      analyze whether our allegations were sufficient to\n\n11      state the securities act claim for an Item 303 omission\n\n12      or a misstatement under a Rule 8 standard.                That\n\n13      analysis does not appear in the First Circuit's\n\n14      opinion.\n\n15               Now, with respect to the disclosure itself, I've\n\n16      already made the point multiple times that we can plead\n\n17      the Item 303 claim without showing a misleading\n\n18      statement, and I think we've done that.               I think,\n\n19      respectfully, we've also shown that the statements were\n\n20      misleading in light of our enhanced factual\n\n21      allegations.         There's a big difference between what\n\n22      Defendants disclosed and what we allege was actually\n\n23      happening based on our detailed factual allegations at\n\n24      points in time.\n\n25               In sum and substance, what Defendants disclosed\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 34 of 49 PageID #:\n                                    2391                                       34\n\n\n\n 1      was that the goodwill impairment was like at the line,\n\n 2      like by the time the 2017 10-K is filed Defendants are\n\n 3      saying we're like at the line of a goodwill impairment\n\n 4      and if things don't go as well as we expect it's\n\n 5      reasonably possible there could be a goodwill\n\n 6      impairment.      It's one thing to say that the impairment\n\n 7      is at the line.       It's another thing to say that you\n\n 8      crossed over it.       And we allege sufficiently that they\n\n 9      had crossed over it because by the time that disclosure\n\n10      was made, 25 to 33 percent of the business had been\n\n11      gone.    That's more than --\n\n12               THE COURT:      Were there offsets, though?          That's\n\n13      one of the criticisms that the First Circuit had in the\n\n14      City of Miami is that the complaint didn't give\n\n15      absolute numbers, it gave, you know, losses without\n\n16      offset gains being noted.\n\n17               MR. RIZIO-HAMILTON:        So we do give in\n\n18      paragraph 114 the absolute number, and we use the\n\n19      phrase as a whole, okay?         Our paragraph 114 is the one\n\n20      place in our Complaint or in any complaint that's been\n\n21      filed in these cases where any plaintiff has given a\n\n22      number that is all in net, okay, that as a whole; and\n\n23      in our paragraph 114 we say that it was widely reported\n\n24      that throughout the company that by 2017 the company\n\n25      had lost between 25 to 33 percent of the Omnicare\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 35 of 49 PageID #:\n                                    2392                                       35\n\n\n\n 1      business as a whole.\n\n 2                THE COURT:     As a whole, okay.\n\n 3                MR. RIZIO-HAMILTON:       Yes.    And so that's why I\n\n 4      think our Complaint is fundamentally different.                 And,\n\n 5      you know, Ms. Collins noted that the company disclosed\n\n 6      that it had lowered its multi-year projections.                 This\n\n 7      much is true; they did say that.            But what is a\n\n 8      reasonable investor to take from that?              And a\n\n 9      reasonable investor, to my way of thinking, wouldn't\n\n10      take from that that between 25 and 33 percent of the\n\n11      business had evaporated because they don't know what\n\n12      the projections had been lowered from and to.                For all\n\n13      they know CVS could have had a really highly profitable\n\n14      projection that they lowered to a mid-level profitable\n\n15      projection, or CVS could have a mid-level profit\n\n16      projection originally that they lowered to flat.\n\n17                And, you know, further sort of cementing the\n\n18      point, your Honor, later in the disclosure CVS says two\n\n19      things that would give a reasonable investor no reason\n\n20      to believe that 25 to 33 percent of the business had\n\n21      been gone.     They said that the goodwill remained\n\n22      intact.     All the goodwill that they originally\n\n23      reported, they said, remained intact.             They did say\n\n24      we're at the line, but they didn't say we crossed it.\n\n25      And they further say later in that same disclosure, and\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 36 of 49 PageID #:\n                                    2393                                       36\n\n\n\n 1      this is in paragraph 278 of our Complaint, they say\n\n 2      that they're actually assuming future script growth\n\n 3      from senior living initiatives and the impact of\n\n 4      acquisitions.        And so they're making positive\n\n 5      representations in the same disclosure -- which, by the\n\n 6      way, we allege are directly contradicted by the report\n\n 7      of former employee Ron, in paragraphs 103 to 106, who\n\n 8      said that those assumptions were completely baseless\n\n 9      and made, in fact, for the express purpose of handing\n\n10      off a goodwill impairment.\n\n11               So when you look at that disclosure as a whole,\n\n12      I agree that it for a reasonable investor that the\n\n13      goodwill was at the line.          But we allege that it was\n\n14      far worse than that.        It crossed the line, because 25\n\n15      to 33 percent of the business had been lost to Omnicare\n\n16      as a whole and that wasn't disclosed.\n\n17               Now, the last two points I want to address that\n\n18      Ms. Collins made were, you know, she mentioned this\n\n19      case law that there's no duty to disclose uncharged\n\n20      criminal conduct.        And, you know, as a legal principle\n\n21      I think that's kind of okay as far as it goes; but it\n\n22      again sort of misses the basis for our claim, which is\n\n23      that Item 303 requires you to disclose a material trend\n\n24      or uncertainty, and that's true quite regardless of\n\n25      whether the conduct is criminal and whether it's\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 37 of 49 PageID #:\n                                    2394                                       37\n\n\n\n 1      charged or uncharged.         The case, the principal case\n\n 2      that they cite for their legal principle is a Second\n\n 3      Circuit case that actually didn't involve an Item 303\n\n 4      claim, it's City of Pontiac.          And the trends and\n\n 5      uncertainties that you see in the Item 303 cases quite\n\n 6      often don't involve potentially criminal conduct,\n\n 7      whether charged or uncharged, but they're required to\n\n 8      be disclosed anyway.        That was true in Silverstrand, it\n\n 9      was true in the Litwin v. Blackstone case that we cite\n\n10      from the Second Circuit, and it's true in the Ikanos v.\n\n11      Panther Partners case from the Second Circuit that we\n\n12      cite, the Panther Part -- that Silverstrand cited with\n\n13      approval.     So there is a disclosure duty here, it's\n\n14      under Item 303, and it doesn't turn on whether the\n\n15      conduct is criminal or charged or uncharged.\n\n16               The last point I want to make on this issue is\n\n17      that in the City of Pontiac case, if you drill down to\n\n18      the district court decision that they're affirming\n\n19      there, you can see the disclosure at issue that was\n\n20      made there that insulated the company from liability;\n\n21      and now I'm talking about 2012 Westlaw 4471265 at page\n\n22      Star 29.     The disclosure there is so much more\n\n23      extensive and robust than what CVS said here.                CVS said\n\n24      here, you know, we got a document demand from the\n\n25      Department of Justice related to our cycle fill\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24    Page 38 of 49 PageID #:\n                                    2395                                        38\n\n\n\n 1      process.     That was it.\n\n 2               If you look at the disclosure that provided a\n\n 3      safety in the City of Pontiac case, you will see that\n\n 4      it discloses that the DOJ and SEC are examining the\n\n 5      conduct of UBS in relation to cross-border services and\n\n 6      in particular examining whether clients sought to evade\n\n 7      their U.S. tax obligations from 2000 to 2007, and it\n\n 8      goes on.     It's like a giant paragraph that discloses\n\n 9      far more specific and robust facts about the nature of\n\n10      the potential misconduct; it's stoked, and it's time\n\n11      frame than was ever disclosed here.\n\n12               And now, the last point I want to make is that\n\n13      Ms. Collins asserted that there was no connection\n\n14      between the rollovers and goodwill.               That's untrue.\n\n15      There are two pled connections between rollovers and\n\n16      goodwill.     The first is that the rollovers, as we\n\n17      allege in paragraphs 219 and 220, accounted for\n\n18      hundreds of millions of dollars of revenue a year, and\n\n19      that is a significant piece of revenue that is at\n\n20      minimum uncertain, okay?         Second, in paragraph 274 in\n\n21      the Complaint we quote CVS's own statement drawing the\n\n22      connection, and they say that their goodwill values\n\n23      could change if, for example, there are adverse legal\n\n24      or regulatory actions or developed.               And so CVS itself\n\n25      acknowledged a connection between practices that\n\fCase 1:19-cv-00434-MSM-LDA    Document 70 Filed 06/07/24   Page 39 of 49 PageID #:\n                                     2396                                       39\n\n\n\n 1      potentially violate regulations and the goodwill\n\n 2      valuation.\n\n 3               So with that, your Honor, unless you have any\n\n 4      other particular questions for me, I'm happy to\n\n 5      conclude.\n\n 6               THE COURT:       No.\n\n 7               I'd like to hear briefly from the Aetna\n\n 8      Defendants, and then if you have response to that; but\n\n 9      we're an hour into our hour hearing, so.\n\n10               Mr. Chepiga.\n\n11               MR. CHEPIGA:       Yes, your Honor.        Thank you, your\n\n12      Honor.    Geoffrey Chepiga from Paul Weiss for the Aetna\n\n13      Director Defendants.\n\n14               As we submitted in our briefing, your Honor, the\n\n15      Aetna Director Defendants are not proper defendants and\n\n16      do not belong in this case.           I'd like to just start\n\n17      with the key point is that we agree with everything\n\n18      that Ms. Collins said and argued, that there are no\n\n19      misstatements or omissions in this case, just as your\n\n20      Honor found and just as the First Circuit affirmed.\n\n21      And because there are no misstatements or omissions,\n\n22      the Complaint should be dismissed in its entirety on\n\n23      that ground.         If you agree with that, you don't need to\n\n24      reach any of the claims against the Aetna Directors.\n\n25      Ms. Collins' arguments on misstatements and omissions\n\fCase 1:19-cv-00434-MSM-LDA    Document 70 Filed 06/07/24   Page 40 of 49 PageID #:\n                                     2397                                       40\n\n\n\n 1      dispose of the entire case.           But in all events there\n\n 2      are additional infirmities in the claims against the\n\n 3      Aetna Directors that require dismissal at the pleadings\n\n 4      stage.\n\n 5               As we set forth in our papers, your Honor, the\n\n 6      Aetna Director or former directors of a separate\n\n 7      publicly-traded company, Aetna, that was acquired by\n\n 8      CVS in 2018.         The alleged misstatements in this case\n\n 9      concern disclosures that CVS made in its SEC filings\n\n10      regarding its acquisition of Omnicare back in 2015, so\n\n11      prior to the CVS acquisition of Aetna and not having to\n\n12      do with the CVS acquisition of Aetna.\n\n13               Crucially, Plaintiff does not name that the\n\n14      Aetna Directors knew about any of the alleged\n\n15      misrepresentations.         In fact, Plaintiff pleads at\n\n16      paragraph 101 of their Complaint that the truth was\n\n17      known within CVS.         It doesn't say the truth was known\n\n18      within Aetna, you know, and for this reason, your\n\n19      Honor, in the Fire Fighters case the plaintiffs didn't\n\n20      even try to bring claims against the Aetna Directors\n\n21      and for good reason.\n\n22               I will say that we made these arguments on a\n\n23      motion to dismiss before the Plaintiffs here tried to\n\n24      replead and didn't add any substantive allegations\n\n25      against the Aetna Directors.           The suggestion that the\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24    Page 41 of 49 PageID #:\n                                    2398                                        41\n\n\n\n 1      Aetna Directors should be responsible for any of the\n\n 2      alleged misstatements or omissions is just wrong, and\n\n 3      Plaintiffs have not put forward any facts to suggest\n\n 4      that they should be.\n\n 5               So just quickly, your Honor, to go through the\n\n 6      buckets of claims, the first claim against the Aetna\n\n 7      Directors is a Section 14(a) claim.               That claim, in\n\n 8      addition to the argument that there are no\n\n 9      misstatements or omissions, that claim, your Honor,\n\n10      should be dismissed because there's no allegation that\n\n11      the Aetna Directors knew or should have known.                 And\n\n12      there's a debate in the briefing about whether the\n\n13      standard for a Section 14(a) claim under the Exchange\n\n14      Act is scienter or negligence.           We submit that scienter\n\n15      is the better reading.         Circuit courts have held that,\n\n16      and more consistent with the trend of the Supreme Court\n\n17      to construe implied private rights of action very\n\n18      narrowly; so we think scienter should be the standard\n\n19      here, in which case the Plaintiffs have pled themselves\n\n20      out of court because they allege that there's no fraud.\n\n21               But even if the standard is lower in negligence,\n\n22      this Complaint just doesn't get there.               There are no\n\n23      particularized allegations about what the Aetna\n\n24      Directors knew or should have known that would at all\n\n25      satisfy at the pleadings stage an allegation that they\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24    Page 42 of 49 PageID #:\n                                    2399                                        42\n\n\n\n 1      acted negligently in connection with the disclosures\n\n 2      here.    They're directors of a separate publicly-traded\n\n 3      company; not CVS, not Omnicare.\n\n 4               In addition to the Section 14(a) claim, there's\n\n 5      also a Section 20(a) claim for control-person liability\n\n 6      against all of the Aetna Directors.               That claim is\n\n 7      premised on the idea that the Aetna Directors somehow\n\n 8      controlled the disclosures or controlled CVS.                 We think\n\n 9      that's facially implausible in this case.                Aetna was\n\n10      being acquired by CVS.         There's no possible way that\n\n11      the directors of Aetna would have controlled CVS or\n\n12      controlled its disclosures.          So we think that the\n\n13      14(a)claim and a 20(a) claim under the Exchange Act\n\n14      should be dismissed as against the Aetna Directors\n\n15      under any set of circumstances.\n\n16               And then finally, your Honor, there's some\n\n17      additional 33 Act, Securities Act claims against just\n\n18      one of the Aetna Directors.          That is Mr. Bertolini, who\n\n19      is the former CEO of Aetna.          We think those are\n\n20      facially deficient as well.          There's a Section 1282\n\n21      claim against Mr. Bertolini, but there's no allegation\n\n22      that he actually passed title or directly participated\n\n23      in the solicitation in connection with the sale of CVS\n\n24      securities.\n\n25               There's a Section 11 claim against\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 43 of 49 PageID #:\n                                    2400                                       43\n\n\n\n 1      Mr. Bertolini.       That's pled against Mr. Bertolini on\n\n 2      the allegation that he signed the registration\n\n 3      statement, which he did not.          That allegation is just\n\n 4      wrong in the Complaint.         Plaintiffs tried to amend it\n\n 5      in their briefing, but they can't do that.               They've had\n\n 6      multiple chances to amend.          We pointed out this\n\n 7      weakness in their Complaint, and the Complaint only\n\n 8      alleges that he signed the registration statement,\n\n 9      which he did not.\n\n10               And finally, there's a control-person claim\n\n11      against Mr. Bertolini, and again, the same argument as\n\n12      to the control-person argument under the Exchange Act.\n\n13      He did not control CVS.         He was a director of a\n\n14      separate publicly-traded company and he's not a proper\n\n15      defendant on that claim either.\n\n16               So unless your Honor has any questions, we\n\n17      submit that the Complaint should be dismissed in its\n\n18      entirety but certainly as against the Aetna Directors\n\n19      who do not belong in this case.\n\n20               THE COURT:      Thank you.\n\n21               Mr. Jensen, what do you say to that?\n\n22               (Overlapping speech)\n\n23               MR. JENSEN:      I apologize, your Honor.          I think\n\n24      we covered all of these points well in our briefing and\n\n25      respectfully refer the Court to that.             Given the hour,\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 44 of 49 PageID #:\n                                    2401                                       44\n\n\n\n 1      I did want to respond very, very briefly to a few\n\n 2      things that opposing counsel said, if that's okay with\n\n 3      your Honor.\n\n 4               THE COURT:      Sure.\n\n 5               MR. JENSEN:      The first, your Honor, is on the\n\n 6      question of scienter as a standard for Section 14.\n\n 7      Defense counsel's position is quite radical; it's not\n\n 8      in the statute.       The vast majority of courts to have\n\n 9      looked at the question have concluded that the standard\n\n10      is not scienter, and there's really no basis to impose\n\n11      that standard where it's not present in the text, and\n\n12      they haven't --\n\n13               THE COURT:      So does the First Circuit have\n\n14      anything that is instructive on this?\n\n15               MR. JENSEN:      No, it does not, your Honor.\n\n16               THE COURT:      Okay.\n\n17               MR. JENSEN:      And so there's no basis to impose a\n\n18      scienter requirement.         This isn't a case where the\n\n19      statutory language matches any of the other statutes\n\n20      that have been found to have imposed the scienter\n\n21      requirements, such as Section 10(b).              There's just\n\n22      nothing of the sort in Section 14.            So I'll refer to\n\n23      our papers for more on that, including some numerous\n\n24      cases holding the same way.\n\n25               I think stepping back for a second, counsel\n\fCase 1:19-cv-00434-MSM-LDA    Document 70 Filed 06/07/24   Page 45 of 49 PageID #:\n                                     2402                                       45\n\n\n\n 1      started with the discussion of why are the Aetna\n\n 2      Defendants in the case.          Your Honor, this is an action\n\n 3      brought on behalf of a class of Aetna investors, and\n\n 4      the Aetna Directors and former Aetna CEO signed,\n\n 5      authorized and permitted the use of their names in\n\n 6      connection with proxy solicitations for the CVS-Aetna\n\n 7      acquisition.         Under Section 14(a) that is all that is\n\n 8      required.     This is squarely within Section 14(a).\n\n 9               But I think that there's maybe even more facts\n\n10      that really emphasize why they are appropriate\n\n11      defendants here, including that they represented that\n\n12      they conducted extensive due diligence in connection\n\n13      with this acquisition and they put that out there in\n\n14      the proxy solicitation that had their names and their\n\n15      unanimous endorsement.          This is -- these\n\n16      representations mattered to the Aetna investors.                   They\n\n17      were counting on these directors who had the nonpublic\n\n18      due diligence to enable them to have an informed vote.\n\n19      And as my colleague Mr. Rizio-Hamilton explained, there\n\n20      were misstatements in those proxy solicitation\n\n21      documents and thus they were deprived the right to or\n\n22      vote.\n\n23               With respect to the control-person claims, your\n\n24      Honor, I think that there's just a mistake in the\n\n25      premise of opposing counsel's argument here.                 The\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 46 of 49 PageID #:\n                                    2403                                       46\n\n\n\n 1      premise of his argument seems to be that a\n\n 2      control-person needed to control the, I guess the\n\n 3      underlying, underlying bad act, the rollover practices\n\n 4      or whatnot.      That's not correct.        The violation here\n\n 5      was the transmission of the false and misleading proxy\n\n 6      solicitation, and on that it's undisputable that the\n\n 7      Aetna Directors and Aetna Defendants had the control of\n\n 8      Aetna's authorization and issuance of the proxy\n\n 9      containing the misrepresentations at issue.               There's\n\n10      just no requirement that the Aetna Directors have\n\n11      control of CVS.       They controlled Aetna, who put forward\n\n12      the authorization for the misleading proxy\n\n13      solicitation.\n\n14               And I guess unless your Honor has any other\n\n15      questions, I respectfully submit that every other point\n\n16      was addressed in our briefing; and just given the time,\n\n17      I won't rehash them.\n\n18               THE COURT:      Okay.    Thank you.\n\n19               Ms. Collins, I'll give you briefly the last word\n\n20      if you need it.\n\n21               MS. COLLINS:      Very briefly, your Honor.          We will\n\n22      address the recent Supreme Court case in briefing as\n\n23      you say, but just to set off the bat, it didn't change\n\n24      the law on Regulation S-K as to Section 11.               It was a\n\n25      10(b) case.      So the New York Appellate Division and the\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 47 of 49 PageID #:\n                                    2404                                       47\n\n\n\n 1      Rhode Island court that looked at the Regulation S-K\n\n 2      claims in this case with these disclosures and\n\n 3      dismissed them, that's all still good law.\n\n 4               THE COURT:      Okay.\n\n 5               MS. COLLINS:      And I submit far more persuasive\n\n 6      and instructive than the Silverstrand case which\n\n 7      involved FDA adverse events where they disclosed\n\n 8      adverse events, but not that there were deaths.                 I\n\n 9      think that's a little bit different than here we\n\n10      disclosed customer losses and Plaintiffs say we should\n\n11      have put a number on it.         I think they don't point to\n\n12      any, any law under Regulation S-K or otherwise\n\n13      indicating a duty to disclose it in the way that they\n\n14      now think that it should have been disclosed.\n\n15               Similarly on rollovers, again, they don't point\n\n16      to any law under Regulation S-K saying that you would\n\n17      have needed to have disclosed -- accused yourself of\n\n18      misconduct to disclose some trend when there's, there\n\n19      was no known litigation; and very different from the\n\n20      City of Pontiac disclosures where they were disclosing\n\n21      that the DOJ was looking into all of this stuff because\n\n22      they knew that.       We didn't disclose it because we knew\n\n23      of the subpoena, that's what we disclosed; that's all\n\n24      the law requires.\n\n25               And the very last point, Mr. Rizio-Hamilton\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 48 of 49 PageID #:\n                                    2405                                       48\n\n\n\n 1      pointed to a couple of specific paragraphs in the\n\n 2      Complaint about net, purported net losses or purported\n\n 3      amounts billed to Medicare and Medicaid for the\n\n 4      rollovers.     I'd just ask your Honor if you think that\n\n 5      that level of difference in the factual allegations\n\n 6      would make a difference, that looking at what they\n\n 7      actually pled in the Complaint in paragraphs 114 and\n\n 8      219 is not precisely how it was portrayed here, and so\n\n 9      I just direct your Honor to the pleading.               And I'm\n\n10      happy to go into more detail if you'd like, but also I\n\n11      know that you're ready to end.\n\n12               THE COURT:      All right.\n\n13               So I'm going to allow you two weeks to submit no\n\n14      more than three pages on the recent Supreme Court case\n\n15      if you wish to, nobody is requiring you to, and we'll\n\n16      take the rest of it under advisement and get something\n\n17      out to you soon, okay?\n\n18               MS. COLLINS:      Thank you.\n\n19               MR. RIZIO-HAMILTON:        Thank you very much, your\n\n20      Honor.\n\n21               MR. CHEPIGA:      Thank you, your Honor.\n\n22               THE COURT:      Have a good day.\n\n23               (Adjourned)\n\n24\n25\n\fCase 1:19-cv-00434-MSM-LDA   Document 70 Filed 06/07/24   Page 49 of 49 PageID #:\n                                    2406                                       49\n\n\n\n 1                    C E R T I F I C A T I O N\n\n 2\n\n 3\n\n 4\n\n 5\n\n 6                    I, Denise P. Veitch, RPR, do hereby certify\n\n 7      that the foregoing pages are a true and accurate\n\n 8      transcription of my stenographic notes in the\n\n 9      above-entitled case.\n\n10\n\n11\n\n12\n\n13                                   /s/ Denise P. Veitch_\n                                     Denise P. Veitch, RPR\n14                                   Federal Official Court Reporter\n\n15\n\n16\n\n17                                      May 9, 2024\n                                          Date\n18\n\n19\n\n20\n\n21\n\n22\n\n23\n\n24\n\n25\n\f","ocr_status":2,"date_upload":"2024-09-09T12:54:14.184647-07:00","document_number":"70","attachment_number":null,"pacer_doc_id":"16102228870","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"Transcript","acms_document_guid":""}],"date_created":"2024-06-07T08:18:33.587411-07:00","date_modified":"2025-09-18T11:37:48.929454-07:00","date_filed":"2024-06-07","time_filed":"10:55:56","entry_number":70,"recap_sequence_number":"2024-06-07.001","pacer_sequence_number":455,"description":"TRANSCRIPT of Motion Hearing, held on May 6, 2024, before District Judge Mary S. McElroy. Court Reporter Denise P. Veitch, Telephone number (401) 752-7031. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion. For local policy and sample redaction request visit our website at www.rid.uscourts.gov and select Transcripts under the Case Information menu option. Redaction Request due 6/28/2024. Redacted Transcript Deadline set for 7/8/2024. Release of Transcript Restriction set for 9/5/2024. 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