Minnesota judge narrows charges in class action suit against Mylan, pharmacy benefit managers over EpiPen price hikes
Second time’s the charm for Viatris and a suite of pharmacy benefit managers in a proposed class-action lawsuit alleging collusion over price hikes for the company’s EpiPen.
After trying — and succeeding, in part — to get claims against them dismissed back in 2021, the defendants celebrated a win on Tuesday when a Minnesota federal judge dismissed a large chunk of the claims due to a lack of evidence.
The case stems back to a complaint filed in 2020 alleging that Mylan — before it combined with Pfizer’s Upjohn unit to form Viatris — colluded with a range of PBMs including CVS Caremark, Express Scripts, United Health and OptumRx to spike the price of EpiPen list prices. Plaintiffs accused Mylan of paying bribes and kickbacks to PBMs, in return for favorable placement on formularies, and the elimination of price constraints.
EpiPen list prices surged between 2012 and 2016, increasing from $240 to $609, according to court documents.
PBMs are “the gatekeepers of which drugs will be covered by their health plan/insurer clients,” the complaint states, and thus have influence over which drugs are prescribed and purchased. Plaintiffs argued that PBMs benefited from EpiPen’s rising cost because the alleged kickbacks were generally calculated as a percentage of the wholesale price.
The complaint was filed by Rochester Drug Co-Operative, on behalf of itself and other direct purchasers of EpiPen.
“Plaintiffs, who paid the list price for EpiPens, were left to bear the burden of these steep price increases,” they said in the complaint.
Mylan argued that plaintiffs didn’t plausibly allege that the behavior excluded competitors from the market, or was “outside industry norms such that other competitors [could not] compete in the same way.”
Judge Eric Tostrud dismissed some claims against the PBMs back in 2021 with prejudice, meaning plaintiffs can’t refile the claim in the same court. However, he denied the Mylan defendants’ motion to dismiss.
On Tuesday, however, he narrowed the case even more, while postponing a decision on the timeliness of the antitrust claims.
“Because Plaintiffs could save some aspects of their Sherman Act claims with evidence of continuing violations, a final decision on the timeliness of the antitrust claims will be postponed until such discovery can be taken,” he wrote.
A Viatris spokesperson said in an emailed statement to Endpoints News that the company will continue to fight the remaining claims:
The Company is pleased with the Court’s decision to significantly narrow the case and will continue to defend itself vigorously against the remaining claims.
Just last month, a Kansas federal court signed off on a settlement that will see Viatris pay $264 million to resolve claims that it conspired with Pfizer to “monopolize the market” for its EpiPens. That case dates back to 2017 when plaintiffs filed a complaint alleging Viatris “devised an illegal scheme” to prevent EpiPen competitors from coming to market.
Viatris has denied any wrongdoing but agreed to pay $264 million to resolve the cases pending in the US District Court for the District of Kansas.