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Express Scripts loses antitrust case regarding Acthar price-gouging

Positive

Express Scripts denied motion to dismiss antitrust case
Plaintiffs can proceed to class certification

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Allegations of price-gouging and anticompetitive conduct
Acthar price increased from $40 to $38,892 per vial

09/21/2023 - 09:00 AM

Acthar Was the Only FDA-Approved Drug of Its Kind Used to Treat Rare Illness Causing Spasms and Seizures in Infants and Toddlers for Many Years

CORAL GABLES, Fla.--(BUSINESS WIRE)-- On July 28, 2023, Judge Iain D. Johnston of the U.S. District Court for the Northern District of Illinois found in favor of plaintiff MSP Recovery Claims in a longstanding antitrust case brought against one of the largest pharmacy benefit managers (PBMs) in the country and three of its subsidiaries. The court denied Defendants Express Scripts, Inc. et al.’s (“Express Scripts”) motion to dismiss allowing the Plaintiffs to proceed to class certification.

As the court stated in its decision: “This case is infamous throughout the Western Division, and now has a third district court judge ruling on a motion dismiss ... Finding no good cause to grant such a request, the Court will not do so.”

MSP Recovery’s Complaint alleges that Express Scripts agreed to raise the price of Acthar, a drug used to treat a rare pediatric illness, to supracompetitive levels through an unlawful scheme which allowed Express Scripts exclusive distribution of Acthar in violation of the Sherman Act and the Florida Deceptive and Unfair Practices Trade Act. The Complaint alleges that Acthar was the only FDA approved ACTH in the United States for infantile spasms and dangerous seizures during the first two years of life. Acthar’s manufacturer, Mallinckrodt, acquired the product in 2001 when Acthar sold for $40.00 per vial.

John H. Ruiz, CEO and Founder of MSP Recovery Inc. d/b/a LifeWallet (NASDAQ: LIFW), stated: “This is price-gouging, plain and simple. No one should be forced to pay $39,000 per vial for the life-saving medicine on the market. One of the primary reasons why MSP Recovery was founded was to prevent pharmaceutical companies from engaging in this type of illegal, deceptive and anticompetitive conduct that leads drug prices to skyrocket.”

In August of 2007, Express Scripts entities and Mallinckrodt entered into an exclusive distribution agreement for Acthar. Within weeks, the price of Acthar went from $1,650.00 to $23,269.00. By 2018, the price of an Acthar vial increased to $38,892.00.

As the Hon. Judge Johnston stated: “The court agrees that Plaintiffs have plausibly alleged an antitrust violation based on the proximity of the price increases to the beginning of the exclusive distribution agreement.” The opinion concluded, “although Defendants have no duty to prevent illegal conduct, they have an affirmative duty to not agree and participate in an anticompetitive conspiracy.”

About MSP Recovery Law Firm

MSP Recovery Law Firm’s experienced attorneys have litigated hundreds of cases relating to insurance proceeds, federal, and state statutes. As far back as 1995, the firm’s attorneys have taken on and prevailed against some of the largest companies in the United States, including being selected as lead class counsel in numerous lawsuits against the nation’s automobile insurance companies. MSP Recovery Law Firm’s attorneys have the knowledge and experience to address even the most complicated and data-driven class actions. For more information, please visit: msprecoverylawfirm.com.