UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

IN RE: 

MEDCO/EXPRESS SCRIPTS MERGER 

LITIGATION

Civil Action No. 11-4211 (DMC) (MF)

ORAL ARGUMENT REQUESTED

MOTION DATE: NOVEMBER 21, 2011

EXPRESS SCRIPTS MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR 

EXPEDITED RULING ON ITS MOTION FOR CERTIFICATION OF 

INTERLOCUTORY APPEAL AND STAY PENDING APPEAL, AND 

PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Robert J. Del Tufo

Andrew Muscato

SKADDEN, ARPS, SLATE,

 MEAGHER & FLOM LLP

(A Delaware Limited Liability Partnership)

4 Times Square

New York, NY 10036-6522

Tel: (212) 735-3000

Robert.DelTufo@skadden.com

Andrew.Muscato@skadden.com

Joseph P. La Sala 

MCELROY, DEUTSCH, MULVANEY &

CARPENTER, LLP

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, NJ 07962-2075 

Tel.: (973) 993-8100

Fax: (973) 425-0161

Jlasala@mdmc-law.com

Attorneys for Defendants Express Scripts, 

Inc., Aristotle Holding, Inc., Aristotle Merger 

Sub, Inc. and Plato Merger Sub, Inc.

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At the express direction of the Delaware Court of Chancery, Defendants Express Scripts, Inc., Aristotle Holding, Inc., Aristotle Merger Sub, Inc. and Plato Merger Sub, Inc. (collectively, Express Scripts ) respectfully submits this memorandum of law in support of its motion for an 

expedited ruling on (i) its motion pursuant to 28 U.S.C. § 1292(b) for an order certifying for

interlocutory appeal this Court s order, dated September 19, 2011 (the Order ) denying 

Defendants motions to dismiss the Amended Complaint and stay this litigation in favor of

virtually identical litigation pending in Delaware, where a class of Medco shareholders has

already been certified, and staying this action pending resolution of the appeal (Dkt. 56), and (ii) 

Plaintiffs' motion for class certification (Dkt. 39) (collectively, the "Motions"). ARGUMENT

Expedited adjudication of a pending motion is appropriate where a party can show good

cause. This Court will adjudicate motions on an expedited basis where there are "important

competing interests at stake in [the] case." In re Gabapentin Patent Litig., 312 F. Supp. 2d

653, 658 (D.N.J. 2004) (granting expedited review of Magistrate Judge's denial of motion for

modification of protective order and unsealing of highly confidential documents). Moreover, "public policy considerations and efficient case management practices" can compel a finding of

good cause. Sanofi-Aventis U.S. LLC v. Sandoz, Inc., 2008 WL 2473745, at *5 (D.N.J. June 13, 2008). This standard is plainly met here. 

As this Court is aware, Plaintiffs, purported shareholders of Medco, seek to preliminary 

and permanently enjoin the $29 billion proposed merger between Medco and Express Scripts

(the "Proposed Transaction"). (Am. Compl. ¶ 104). The Proposed Transaction offers Medco

stockholders an approximately 29% premium for their shares, and is the second largest

announced M&A transaction of 2011. As Plaintiffs admit, Medco and Express Scripts are both

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Delaware corporations. (Am. Compl. ¶¶ 10, 22). Thus, under the "internal affairs" doctrine, Plaintiffs' claims are indisputably governed by Delaware law. See, e.g., Edgar v. MITE Corp., 457 U.S. 624, 645-46 (1982); McDermott Inc. v. Lewis, 531 A.2d 206, 215-17 (Del. 1987). Indeed, Plaintiffs allege that this case raises important issues of Delaware corporation law

concerning the reasonableness of the deal protection provisions contained in the Proposed

Transaction, including the 3.26% termination fee. Despite the fact that Plaintiffs' claims are

governed by Delaware law, and are presently before the Delaware Court of Chancery in the

parallel action captioned In re Medco Health Solutions, Inc. Shareholders Litigation, Cons. C.A. No. 6720-CS (the "Delaware Action"), Plaintiffs continue to press their claims in this Court.1

 Indeed, Plaintiffs and their counsel took the extraordinary step of asking this Court to

certify precisely the same class of Medco stockholders that was already certified by the Delaware 

Court of Chancery. (Dkt. 39) Plaintiffs insisted that overlapping classes would not create a risk

of inconsistent judgments, or worse, place the Proposed Transaction in jeopardy. Yet, that is

precisely what has now occurred. As explained below, notwithstanding the compelling policy

reasons to promptly rule on the Motions, there are now equally compelling factual reasons to do

so. A prompt ruling on the Motions could alleviate (or at the very least, mitigate) the risk of

inconsistent judgments that could jeopardize the Proposed Transaction. 

On October 14, 2011, Express Scripts filed a motion for judgment on the pleadings in the 

Delaware Action pursuant to Court of Chancery Rule 12(c) (the "12(c) Motion"), along with a

proposed briefing schedule on the 12(c) Motion, which could have disposed of the Delaware

Action. The Court of Chancery declined to schedule the 12(c) Motion, and instead convened a

 1 Unlike Plaintiffs here, plaintiffs in the actions pending in the Superior Court of the State of New

Jersey agreed to stay their actions in favor of the Delaware Actions. 

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scheduling conference with the parties to the Delaware Action, during which the Court scheduled 

a preliminary injunction hearing for December 6, 2011. 

During the scheduling conference, the Court of Chancery also expressed serious concerns 

that inconsistent judgments from the Court of Chancery and this Court could place the Proposed

Transaction in jeopardy, which could prevent Medco's stockholders from receiving the 29%

premium for their shares. (10/21/2011 Hr'g Tr. at 27-29). A copy of the hearing transcript is

attached as Exhibit A to the October 25, 2011 Certification of Joseph P. La Sala (the La Sala

Cert. ). Moreover, the parties to the Delaware Action have agreed to an expedited discovery and 

briefing schedule that will govern the case through the preliminary injunction hearing. (Attached 

as Exhibit B to the La Sala Cert.). Thus, Plaintiffs' unfounded fear that they could not obtain

expedited relief from the Delaware Court of Chancery on, among other things, their termination

fee claim, is now moot. 

In light of the above-described and now imminent risks, the Court of Chancery also

directed Defendants to seek expedited review of the Motions to determine whether there would

truly be a risk of inconsistent judgments between the two Courts. (10/21/2011 Hr'g Tr. at 26, 33- 34). In accordance with the Court of Chancery's directive, Express Scripts respectfully requests

that the Court promptly rule on the Motions. 

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CONCLUSION

For all of the foregoing reasons, Express Scripts requests that the Court grant its motion

for an expedited ruling on the Motions. Robert J. Del Tufo

Andrew Muscato

SKADDEN, ARPS, SLATE,

 MEAGHER & FLOM LLP

(A Delaware Limited Liability Partnership)

4 Times Square

New York, NY 10036

Tel: (212) 735-3000

Robert.DelTufo@skadden.com

Andrew.Muscato@skadden.com

OF COUNSEL:

Edward P. Welch 

Edward B. Micheletti

Cliff C. Gardner

SKADDEN, ARPS, SLATE,

 MEAGHER & FLOM LLP

(A Delaware Limited Liability Partnership)

One Rodney Square

P.O. Box 636

Wilmington, Delaware 19899-0636

Tel.: (302) 651-3000

Fax: (302) 651-3001

DATED: October 25, 2011

Respectfully submitted,

/s/ Joseph P. La Sala

Joseph P. La Sala 

MCELROY, DEUTSCH, MULVANEY 

& CARPENTER, LLP

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, NJ 07962-2075 

Tel.: (973) 993-8100

Fax: (973) 425-0161

Jlasala@mdmc-law.com

Attorneys for Defendants Express 

Scripts, Inc., Aristotle Holding, Inc., 

Aristotle Merger Sub, Inc. and Plato 

Merger Sub, Inc.

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