Originally published on Feb 28, 2018.

SMLXL

 A key figure in AIPW’s lawsuit which demonstrates the consolidation and power of major PBMs
In November 2016, a number of secondary wholesalers banded together and formed the Association of Independent Pharmaceutical Wholesalers, Inc. (AIPW) to represent their interests in fighting the VAWD requirement that OptumRx placed on its Network Pharmacies. The legal battle wages on over a year later ; an end might be in sight.
Summary of the Transcript:
  1. Plaintiff takes aim at pharmacy purchasing (page 6 lines 24 to 25) and its benefits (page 7 lines 6 to 10)
  2. Plaintiff explains the scenario (page 7 to page 21)
  3. Plaintiff explains why OptumRx is agent of the government (page 21 to 25)
  4. Count One discussion with Plaintiff (page 25 to page 34)
  5. Count Two discussion with Plaintiff (page 34 to 37)
  6. Count Four through Six with Plaintiff (page 37 to page 40)
  7. Defendant (OptumRx) gives background on VAWD requirement (page 40 to 42)
  8. Defendant seeks dismissal (page 42 to 59)
  9. Court questions association standing (page 59 to 61)
  10. Defendant comments (61 to 88)
  11. Plaintiff response (88 to 98)
  12. Defendant discusses California claims (page 98 to 115)
  13. Plaintiff closes (page 115 to 120).
Analysis:
  1. Count One Violation of The Administrative Procedure Act (“APA”) (Against HHS Defendants)
    1. Plaintiffs argument hinges on the assumption that OptumRx is an agent of the federal government, and thus subject to the same federal rule-making requirements that a federal administrative body is (specifically the notice and comment rulemaking procedures). As shown by the transcript, if OptumRx were to be classified as a government agent, this could lead to “thousands, millions” of other entities that participate in the Medicare system also being classified as governmental agents. This would make all of these entities subject to, among other things, the notice and comment process, which is a long and complicated process. Therefore, for this claim to succeed it would have to be very narrowly tailored to apply just to OptumRx and this situation.
  2. Count Two Declaratory Judgment (Against OptumRx And HHS Defendants)
    1. As the court notes in the transcript, the plaintiff here (AIPW) does not actually have a direct contract with OptumRx. It merely feels the effect of Optum’s contract. The court questions plaintiff’s ability to even bring this claim because it has no real direct “stake” in the matter.
  3. Count Three Violation of The Regulatory Flexibility Act, 5 U.S.C. § 601 Et Seq. (As to The HHS Defendants)
    1. Once again this count rests on the assumption that OptumRx is acting as an agent of the federal government and thus subject to the same rules and requirements that all federal agencies are. As stated above, to find this would have a massive ripple effect. For this claim to be found valid, the court will will have to very narrowly tailor its ruling to apply just to OptumRx and this scenario.
  4. Count Four Unfair Competition in Violation of California Business and Professions Code Section 17200, Et Seq. (Against OptumRx), Count Five Tortious Interference with Prospective Economic Advantage (Against OptumRx), and Count Six Tortious Interference with Contract (Against OptumRx)
    1. This count is an unfair competition claim based solely on California law. In the transcript the court expresses that it is primarily concerned with claims brought under federal law and expresses being uncomfortable with making a ruling based on California common law and that a federal court in California may be best suited to handle Counts Four through Six. The court also suggests that if the claims involving the HHS directly were to be dismissed, while the California based claims remain, it may no longer have jurisdiction over the claims and suggests a transfer to California would be proper.
    2. In the case of the federal claims being dismissed, it would most certainly be best to transfer the case to a California federal court, as such a court would be much better suited to handle claims based solely on California law. Additionally, even if the federal claims were not dismissed, the court could sever the California based claims and have them transferred to a California court. Both the court and the Plaintiff acknowledge that a California court would most likely have jurisdiction over OptumRx, so in either scenario a transfer of venue might be the best way forward.
    3. In either case, it seems most proper that the California based claims be transferred to a federal court in California, as such a court would be most qualified to make a ruling based on California law. This would also help to dissuade plaintiffs from lumping on tangentially related state law claims in cases dealing mostly with federal matters and law.
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