State AGs are forging ahead with price-fixing lawsuits
FTC appears poised to file its own lawsuit against PBMs
States are charging ahead with drug price-fixing lawsuits against pharmacy benefit managers, viewing the litigation as a more effective way to provide direct relief to local taxpayers than potential federal action would be.
Vermont is the latest to sue, last week accusing CVS Health Corp.'s Caremark and Evernorth’s Express Scripts of inflating drug prices.
Caremark, Express Scripts, and UnitedHealth Group’s OptumRx Inc. dominate prescription drug coverage for US health plans and employers, making up nearly 80% of the market.
The Federal Trade Commission is expected to file its own suit against those major PBMs, but states aren’t backing down.
“What the FTC does or doesn’t do has no influence on us or our work,” said Josh DeFonce, media director for the Office of Indiana Attorney General Todd Rokita (R), who brought a March suit against CVS, OptumRx, and other defendants. “Our lawsuit is to hold these companies accountable, change their behavior, and bring back money to Indiana.”
California, Hawaii, Illinois, Kentucky, and Ohio have also brought similar lawsuits under state laws in a effort to compensate local communities.
Antitrust attorneys expect additional states and municipalities to sue to enforce their own laws.
‘Can’t Bank On It’
State attorneys general take “very seriously the responsibility” to use their own laws even if there is similar action planned by the Justice Department or FTC, said Richard Powers, former acting head of DOJ’s antitrust division and now partner at Kressin Meador Powers LLC. There’s generally a sense among enforcers of “the more the better,” Powers said.
States hope the FTC will bring its own suit, but “you can’t bank on it until it happens,” Powers said.
The FTC has been investigating the country’s top PBMs since 2022, and noted in an interim staff report published this month that concentration and vertical integration among the top PBMs may be fueling high costs and putting financial pressure on independent pharmacies.
The FTC declined to comment.
The lawsuits from states and municipalities will continue, regardless of how the agency moves forward, said David Balto, an antitrust attorney and former policy director at the FTC.
“This is an industry that exploited being in a regulatory blind spot for a quarter of a century, so we need as much litigation and regulation as possible,” Balto, now a solo practitioner, said.
‘Bread and Butter’ Issue
Drug price-fixing issues are a “bread and butter” issue that matters both to state citizens and agencies, said Gwendolyn J. Lindsay Cooley, former Wisconsin assistant attorney general for antitrust and former chair of the National Association of Attorneys General Multistate Antitrust Task Force.
“States have the responsibility to regulate these deliberate, unfair, and deceptive pricing tactics set by PBMs that allow them to line their own pockets at the expense of consumers,” said a spokesperson for the California Department of Justice. The state’s attorney general, Rob Bonta (D), sued PBMs last year, alleging they leveraged their market power to overcharge patients.
Unlike the FTC, the states are bringing cases designed to compensate their citizens directly and “redress people for grievances,” Cooley said. “The FTC does not have an ability to disgorge ill-gotten gains and then give that to consumers.”
Richie Taylor, spokesperson for Arizona Attorney General Kris Mayes (D), said Arizona’s litigation against PBMs will proceed.
“Attorney General Mayes believes PBMs have twisted the rebate system to squeeze unjust profits out of patients, and she welcomes all efforts to hold PBMs accountable for their unfair business practices,” Taylor said.
Hawaii’s attorney general’s office is still awaiting a federal judge’s written order dismissing the state’s case against PBMs, an office spokesperson said. “The Department of the Attorney General continues to await the court’s written decision, but anticipates moving forward with the case.”
Illinois recently reached a settlement with Caremark over claims that the PBM didn’t pass through manufacturer rebates to the state over a four-year period. Caremark has agreed to pay at least $45 million to Illinois as part of the agreement.
Vermont’s attorney general’s office didn’t respond with comment.
Insulin MDL
Lawsuits from cities and counties in Maryland, New York, Tennessee, and other states are among the more than 70 cases that have been consolidated into multidistrict litigation based out of the US District Court for the District of New Jersey, focused on the role of PBMs and insulin manufacturers in raising patients’ prescription drug costs.
Tal Lifshitz of Kozyak Tropin & Throckmorton, an attorney on the team representing cities and other self-funded payers in the insulin pricing MDL, said he is “talking to potential clients all the time that have expressed interest or are in the process of filing.”
An FTC lawsuit could affect the MDL in that it puts “more pressure” on PBMs, Lifshitz said.
“It’s one thing to have somebody sue you,” he said, but “it’s another thing to have a hundred people suing you. And then it’s another thing to have a hundred people suing you, one hundred states, counties, municipalities, and then the federal government, too.”
PBM Defenses
PBMs have repeatedly pushed back on the state and city lawsuits, arguing the companies’ main goal is to deliver discounts to patients. The industry points to manufacturer list prices and use of patent protections as the main sources of high prescription drug costs.
Caremark said in an emailed statement that the company plans to defend itself against a potential FTC lawsuit, arguing any action that limits the ability of PBMs to negotiate discounts for patients “would reward the pharmaceutical industry and return the market to a broken state, leaving American businesses and patients at the mercy of the prices drugmakers set.”
Optum declined to comment on the litigation and pointed to actions it’s taken aimed at making insulin more affordable, including granting insulin products preferred placement on its standard commercial formularies, or lists of covered drugs.
Express Scripts didn’t respond to requests for comment. The Pharmaceutical Care Management Association, a trade group representing PBMs, said it can’t comment on potential litigation involving its members.
For Lifshitz, the litigation against PBMs “is the most consequential litigation that I think is happening right now in the country.”
“Litigation is, frankly, a very powerful instrument for effecting impact and change in an industry like this that needs it,” Lifshitz said.
Reporters: Katie Arcieri, karcieri@bloombergindustry.com; Celine Castronuovo, ccastronuovo@bloombergindustry.com
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