Appeals court upholds ruling barring former Express Scripts chief from joining CVS

A federal appeals court has upheld an injunction preventing the former head of Express Scripts from taking an executive role at CVS Health.

The Eighth Circuit Court of Appeals issued an opinion (PDF) Wednesday saying it sees "no legal or factual error in the district court’s analysis" that granted Cigna, the parent company of Express Scripts, a preliminary injunction a year ago.

"When a district court correctly interprets state law and does not clearly err in its factual findings, we will rarely disturb its grant of a preliminary injunction to enforce a non-compete agreement," according to the opinion.

Former Express Scripts President Amy Bricker quietly departed the company before it was revealed in mid-January 2023 that she had accepted a role at CVS Health to serve as the chief product officer for its consumer segment. Cigna swiftly sued both Bricker and CVS over a noncompete in her contract.

Express Scripts and CVS Health's Caremark are the two largest pharmacy benefit managers in the U.S., and, alongside UnitedHealth Group's Optum Rx, make up the trio of companies that dominates about 80% of market share.

Cigna said in its lawsuit that the company would be "immediately and irreparably harmed" if Bricker were allowed to join CVS given her experience at Express Scripts. For example, she played a leading role in securing Express Scripts' contract with Centene, which ditched CVS for the Cigna subsidiary.

Cigna argued that if Bricker were allowed to join CVS she would "inevitably" be asked to reveal trade secrets from her former company. Her knowledge of Express Scripts' business could be used by CVS to develop products and offerings that compete with it directly.

The appeals court said Cigna is likely to suffer the most financially should Bricker be allowed to join the executive team at CVS Health.

"The district court did not abuse its broad discretion in balancing the equities and determining that they favor Cigna at this stage," according to the opinion. "Cigna could suffer substantial financial harm without a preliminary injunction, CVS suffers comparatively little financial harm with a preliminary injunction and Bricker suffers little or no financial harm in either instance."

"Any other consequences that flow from Bricker’s choice to sign Cigna’s non-compete agreement and then switch to CVS are consequences of her own making," the court said.