CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C.

COUNSELLORS AT LAW

_____________

CHARLES C. CARELLA

BRENDAN T. BYRNE

PETER G. STEWART

ELLIOT M. OLSTEIN

ARTHUR T. VANDERBILT, II

JAN ALAN BRODY

JOHN M. AGNELLO

CHARLES M. CARELLA

JAMES E. CECCHI

JAMES D. CECCHI (1933-1995)

JOHN G. GILFILLAN III (1936-2008)

JAMES T. BYERS

DONALD F. MICELI

A. RICHARD ROSS

KENNETH L. WINTERS

JEFFREY A. COOPER

CARL R. WOODWARD, III

MELISSA E. FLAX

DENNIS F. GLEASON

DAVID G. GILFILLAN

G. GLENNON TROUBLEFIELD

BRIAN H. FENLON

LINDSEY H. TAYLOR

5 BECKER FARM ROAD

ROSELAND, N.J. 07068-1739

PHONE (973) 994-1700

FAX (973) 994-1744

www.carellabyrne.com

RICHARD K. MATANLE, II

FRANCIS C. HAND

AVRAM S. EULE

RAYMOND W. FISHER

______

OF COUNSEL

RAYMOND J. LILLIE

WILLIAM SQUIRE

ALAN J. GRANT

STEPHEN R. DANEK

ERIC MAGNELLI

DONALD A. ECKLUND

AUDRA E. PETROLLE

MEGAN A. NATALE

AMANDA J. BARISICH

MEMBER N.Y. BAR ONLY

October 31, 2011

VIA ECF

Honorable Dennis M. Cavanaugh

United States District Judge

United States Post Office and Courthouse Building

Newark, New Jersey 07101-0999

Re: In re: Medco/Express Scripts Merger Litigation

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

Dear Judge Cavanaugh:

This firm, along with Grant & Eisenhofer and Bernstein Litowitz Berger & Grossmann

LLP, are co-lead counsel in the above-captioned consolidated actions. This letter responds to

Express Scripts’ October 31 letter objecting to Plaintiff’s proposed Order to Show Cause, which

was submitted to the Court on October 28, 2011.

Express Scripts’ objections to the proposed Order to Show is nothing more than a

reiteration of the objections it has previously raised, and which the Court previously rejected, to

litigating in New Jersey rather than in its chosen forum, Delaware. Further, as noted in

Plaintiff’s supporting papers, Express Scripts manipulated the Delaware court into scheduling a

preliminary injunction hearing by setting an artificially early shareholder vote, more than six

months in advance of when the transaction could realistically ever close.1

1

Express Scripts states that the Delaware hearing “will address all the state law claims on

behalf of the certified class of Medco stockholders, including Plaintiffs’ challenge to the

Termination Fee.” (Express Scripts Letter at 1) No preliminary injunction papers have been

filed in Delaware, and none are scheduled to be filed until Thanksgiving. Unless Express Scripts

is blessed with precognition, it cannot say with any authority what claims will or will not be

addressed at the Delaware preliminary injunction hearing. Moreover, the underlying transaction

is still under review by the Department of Justice for antitrust concerns. The accelerated date

will result in a vote before the shareholders even know that the ultimate transaction will look

like. This concern is addressed in our papers.

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Honorable Dennis M. Cavanaugh

October 31, 2011

Page 2

CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO

A PROFESSIONAL CORPORATION

The scheduling of a shareholder vote, as Plaintiff previously noted, is generally the

triggering event for the Delaware court to schedule a preliminary injunction hearing. This

artificially early shareholder vote came after Express Scripts repeated arguments to this Court

that no need to expedite proceedings existed here because a shareholder vote and the closing of

the proposed merger was long in the future. Had Express Scripts been more forthcoming with

the Court and with Plaintiff as to its true plans, the Court would have been in a position to rule

on Plaintiff’s application based upon full information, without Express Scripts holding cards up

its sleeve.

In summary, denying Plaintiff’s requested Order to Show Cause because the Delaware

court has scheduled its own preliminary injunction hearing would be granting Defendants relief

by foul means. The issue of whether this litigation should go forward in New Jersey has been

litigated, and the Court ruled that it should proceed here. By manipulating the shareholder vote,

Express Scripts is attempting to present the Court with a fait accompli schedule in Delaware so

as to end run the practical effects of this Court’s previous rulings that it will address Plaintiff’s

claims. Plaintiff’s application for an Order to Show Cause is part and parcel of litigating its

claims here in New Jersey and it should be allowed to do so, notwithstanding what may or may

not be happening in Delaware, as the Court previously ruled.

Thank you for your continued attention to this matter. If the Court has any questions, we

are available that the Court’s convenience.

Respectfully submitted,

CARELLA, BYRNE, CECCHI,

OLSTEIN, BRODY & AGNELLO

/s/ James E. Cecchi

JAMES E. CECCHI

cc: All Counsel (via ECF)

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