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Parties File for Judgment on the Pleadings in EpiPen Litigation

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On Wednesday, defendants in the long-running EpiPen Purchaser Litigation pending in the District of Minnesota filed a motion for partial judgment on the pleadings. The class action alleges that Mylan and other defendants artifically inflated the price of the essential medical device.

The plaintiffs’ First Amended Consolidated Class Action Complaint, filed in October 2021, provides a brief summary of the action: “Plaintiffs bring this action on behalf of a proposed class of direct purchasers of EpiPen, EpiPen Jr., EpiPen 2-Pak, and EpiPen Jr. 2-Pak and generic versions of these products … from Mylan [defendants Mylan, Inc. and Mylan Specialty L.P.] to recover overcharges due to Mylan’s and the Defendant PBMs’ [Pharmacy Benefit Managers’] illegal conduct which led to artificial inflation of the list prices for EpiPen (and Mylan-sold generic EpiPen) in the United States.”

The two named plaintiffs are Rochester Drug Co-Operative, Inc. and Dakota Drug, Inc. The defendants are the two Mylan entities identified above and entities related to CVS/Caremark, Express Scripts and OptumRx, Inc. (the “PBMs” in the Amended Complaint).

The litigation has been narrowed, both as to dismissal of claims and parties, since the filing of the First Amended Complaint. The action still encompasses both RICO and anti-trust based claims. There are two RICO causes of action, and Mylan and the PBMs have moved to dismiss them “to the extent they rely on the following state laws as direct RICO predicates or as RICO predicates under the Travel Act…” The motion addresses the statutory provisions of eight states, and those provisions generally deal with commercial bribery and kickbacks, allegations that are essential to the RICO claims and supportive of the claim of price inflation. If successful, the motion will eliminate completely or significantly narrow any remaining RICO aspects of the case.

Interim co-lead counsel for the direct purchaser class are Berger Montague PC and Garwin Gerstein & Fisher LLP. Counsel for the CVS/Caremark entities are Faegre, Drinker, Biddle & Reath LLP and Williams & Connolly LLP.

Counsel for the Express Scripts related defendants are Quinn Emanuel Urquhart & Sullivan, LLP and Spencer Fane LLP. Counsel for Optum, Rx Inc. are Alston & Bird LLP and Stinson LLP. Counsel for the Mylan defendants is Hogan Lovell’s US LLP.

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