In Re Insulin Pricing Litigation
United States District Court for the District of New Jersey
No. 17-00699 (BRM)(LHG)
On March 17, 2017, the nationally recognized class-action law firm of Keller Rohrback L.L.P. filed suit against the nation’s three largest pharmacy benefit managers (“PBMs”), Express Scripts, OptumRx, and CVS Caremark, and the three major insulin manufacturers, Sanofi-Aventis, Novo Nordisk, and Eli Lilly, who produce the well-known and widely-prescribed analog insulins: Lantus, Apidra, Levemir, Humalog, and Novolog. The complaint, which was filed in the New Jersey federal district court, alleges that the PBMs—insurance industry middlemen who negotiate drug prices and create drug formularies that determine how much patients pay—conspired with the insulin manufacturers to artificially inflate the price of insulin for their own collective benefit. This profit-seeking move has directly injured individual patients and other purchasers of insulin financially and put the lives of millions of diabetes sufferers at risk.
Insulin Pricing Scheme Explained
The Insulin Pricing Scheme alleged in Plaintiffs’ complaint explains how PBMs sell exclusionary or preferential access to their formularies in exchange for a cut of rebates and other fees paid by the drug manufacturers to the PBMs. Formularies are ranked lists of drugs that health insurers rely upon to determine how much of their members’ drug costs they will cover. Manufacturers’ sales depend on access to these enormous purchaser pools for their profits. Although the PBMs claim the rebates and other payments lower the cost of insulin, in fact, this is misleading. The rebates and other payments decrease the cost of insulin for the PBMs and the insurers with whom the rebates are shared, but drive up the cost for consumers, whose pre-deductible or coinsurance payments at the pharmacy point-of-sale are based on the unrebated “list” price.
The PBMs and manufacturers game the system. Instead of competing on price for access to the PBMs’ formularies, the manufacturers compete based on the amount of the rebate and other fees that they pay to the PBMs. To prevent the rebates and other fees—and the wasteful transactional costs created by an increasingly convoluted system of payments—from cutting into their profits, the manufacturers raise what they call the “list” price of insulin.
Meanwhile, considerable rebates to PBMs maintain at a steady point the “net” price actually realized by the manufacturers. The higher the “list” price, the higher the rebate and other fees, and the larger the profit to the PBMs. The result is a vicious cycle of “list” price increases by manufacturers, vying to win the favor of the PBMs. Consumers with out-of-pocket payment obligations, a large and growing population, are charged an amount based upon the artificially inflated “list” price. This includes the uninsured and people in a variety of types of health plans with co-insurance, co-payment, and high-deductible requirements.
Plaintiffs’ complaint seeks both monetary and injunctive relief on behalf of four Classes of health plan participants and beneficiaries, as well as uninsured consumers. Plaintiffs are requesting remedies that would refund their overpayments and force Defendants to disgorge their ill-gotten gains. Critically, the injunctive relief that is unique to the Boss case would impose disclosure requirements going forward that will increase transparency in a market where a hidden dual pricing system has driven insulin prices through the roof—at severe financial and physical costs to users and purchasers of insulin. Disclosure of this information will make it more difficult for the Defendants to manipulate the cost of insulin in the future, should they attempt to replace the current system with some other scheme.
If you purchase prescription insulin produced by any of the above-listed manufacturers, you may be paying artificially inflated and anti-competitive prices. Please contact an attorney to learn more about whether you too have been subject to unlawful pricing. Call 800.776.6044 or email email@example.com.
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On March 17, 2019, Plaintiffs filed their Second Amended Class Action Complaint. Defendants filed their Motion to Dismiss the Complaint on May 17, 2019. Briefing on the Motion to Dismiss concluded in July 2019. Discovery has commenced while the parties await a ruling on the Motion.