By Anna Schwartz

United States of America v. Walmart Inc. and Wal-Mart Stores Easy, LP, Case No: 1:99-mc-09999 (D. Del. 2020). On December 22, 2020, the United States Department of Justice filed a complaint in the U.S. District Court for the District of Delaware against Walmart for unlawfully dispensing and distributing substances in violation of the Controlled Substance Act (CSA).

The civil complaint alleges that Walmart knowingly filled thousands of opioid prescriptions that were not issued for “legitimate medical purposes” or within the “ordinary course” of pharmacy practice. The complaint also alleges that Walmart received hundreds of thousands of suspicious opioid orders that it failed to report as required by the Drug Enforcement Administration (DEA).  The Justice Department alleges that these actions helped to fuel the prescription opioid crisis. For example, one case cited in the complaint describes that a Walmart pharmacy in Pennsylvania continued to fill thousands of prescriptions for a known “pill mill” doctor who is now under indictment after five patients died.

Previously, on October 22, 2020, Walmart filed a complaint for declaratory relief to head off the Justice Department’s claims in the United States District Court for the Eastern District of Texas. In the preemptive countersuit against the U.S. Department of Justice, Attorney General William Barr, the U.S. Drug Enforcement Administration and its acting administrator, Walmart argued that its pharmacists blocked thousands of questionable opioid prescriptions as part of the company’s good faith effort to help address the opioid crisis. Walmart argued in the complaint that allowing the Justice Department to hold Walmart liable for CSA violations would turn pharmacists into “doctor police,” forcing pharmacists to come between doctors and patients in a way Congress never intended. Finally, in the complaint for declaratory relief, Walmart argued that the Justice Department tried to shift blame for the DEA’s own failures to police doctors. Despite these arguments, on February 4, 2021, the Texas court dismissed Walmart’s request for a federal declaration, finding that the court had no subject-matter jurisdiction.  Walmart filed a notice of appeal of the court’s dismissal on March 5, 2021.

In the Department of Justice’s current lawsuit, if Walmart is found liable for violating the CSA, it could face civil penalties of up to $67,627 for each unlawful prescription filled and $15,691 for each suspicious order not reported. Thus, Walmart’s civil penalties for nationwide violations of the CSA could total billions of dollars. Furthermore, the suit’s outcome may impact the pharmacy industry as a whole by imposing new duties on pharmacists to question licensed doctors on controlled substance prescriptions.