Damages May Triple Under FCA
While Judge Goldberg didn’t immediately impose treble damages — a standard provision under the False Claims Act — he invited both parties to submit briefs on the issue, meaning Caremark’s liability could climb as high as $285 million.
The federal government chose not to intervene but monitored the case closely. In a summary judgment filing, it emphasized its “strong interest” in ensuring accurate drug cost reporting under the Medicare Part D program.
Aetna Actuary Turned Whistleblower
Behnke first raised concerns internally in 2012–2013, after noticing inconsistent drug pricing between Aetna’s Medicare Part D plans and Caremark’s other clients. Caremark blamed “market conditions”, but Behnke was unconvinced.
An internal review by Crowell & Moring LLP concluded Caremark’s pricing strategy was common industry practice, but Behnke — believing otherwise — filed a qui tam suit in 2014 under the False Claims Act.
She initially estimated damages at $240 million to $330 million.
