Insulin Overpricing Litigation

The insulin pricing litigation concerns an alleged scheme between insulin manufacturers and pharmacy benefit managers (“PBMs”) to artificially and fraudulently inflate the price of insulin and other diabetes medications. The principal players in the alleged scheme are insulin manufacturers Eli Lilly and Company, Novo Nordisk, Inc., and Sanofi-Aventis U.S., LLC, and three PBMs – CVS Caremark, Express Scripts, Optum Rx, and their various corporate affiliates. The central factual allegations in support of the alleged insulin pricing scheme are the same in all actions: the insulin manufacturers negotiate with and pay secret rebates to PBMs to ensure preferential treatment of their insulin and diabetes medications on covered drug lists known as formularies, they arbitrarily raise the list prices for the products to cover these payments, and, as a result, the published list price of the drugs are fraudulent, in contrast to reflecting legitimate market forces.

From 2017 to 2021, the litigation over these issues was concentrated largely in the District of New Jersey: 1) In re Insulin Pricing Litig., No. 17-00699 (D.N.J.) (“Indirect Purchaser Consumer Action”); 2) MSP Recovery Claims, Series, LLC v. Sanofi Aventis U.S. LLC, No. 18-02211 (D.N.J.); 3) Minnesota v. Sanofi-Aventis U.S. LLC, No. 18-14999 (D.N.J.); and 4) In re Direct Purchaser Insulin Pricing Litig., No. 20-3426 (D.N.J.), (together, “the New Jersey Insulin Pricing Actions”).

In the last two years, federal civil actions involving the alleged insulin pricing scheme were filed by state and local government plaintiffs in a number of districts. The governmental plaintiffs assert claims for unjust enrichment and violation of the state plaintiffs’ respective state consumer protection statutes. Most also assert a claim for civil conspiracy. None assert antitrust claims.

These were consolidated into a multidistrict litigation (MDL) pending in the District of New Jersey. The Insulin Price-Fixing MDL (No. 3080) has been assigned to the Honorable Brian R. Martinotti, who also presides over the New Jersey Insulin Pricing Actions. Related private actions concerning the alleged insulin pricing scheme will also be included in the MDL through the conditional transfer order process. The potential tag-along actions by private entities assert violation of the Racketeer Influenced and Corrupt Organizations Act and state antitrust law in addition to claims for unjust enrichment, civil conspiracy, and violation of state consumer protection laws.

The structure for the MDL has not yet been established. Filings indicate there will be separate tracks for State Attorney Generals, Third-Party Payors, Self-Funded Payers, and Direct Purchaser Plaintiffs. The Court has not yet determined whether the New Jersey Insulin Pricing Actions will be formally included in the MDL given the advanced posture of those actions.

Several non-governmental-entity cases have been transferred into the MDL with the number expected to grow rapidly. These are class actions filed on behalf of Union health benefit providers who allege the pricing scheme harms health plans that must reimburse pharmacies for their plan members’ insulin purchases at a set rate tethered to the list price that the defendants hike in unison, thereby forcing the financial consequences of the competitive insulin market onto the very parties that should benefit from it – the plans and the patients.

We are continuing to monitor the developments in this MDL and would be happy to meet with you to explore the possibility of representing your organization in this litigation.