Express Scripts and Anthem Litigation

In re Express Scripts/Anthem ERISA Litigation
Case No. 1:16-cv-03399

Southern District of New York

Case Overview

Keller Rohrback serves as interim co-lead counsel in this putative class action on behalf of Anthem plans and plan participants who overpaid and continue to overpay for their prescription medications.

In 2009, Anthem entered into a 10-year contract with Express Scripts that allowed Express Scripts to provide exclusive pharmacy benefits and set prescription prices for Anthem plan participants. Under the contract, Express Scripts is required to set prices at “competitive benchmark pricing” and Anthem has the right to conduct market analysis to ensure its participants are not being overcharged. Express Scripts paid Anthem approximately $4.7 billion for the right to be Anthem’s exclusive pharmacy benefit manager.

Pursuant to the contract, Anthem hired a third-party consultant to conduct a comprehensive market analysis of prescription drug pricing. The results of the study were alarming and revealed Express Scripts’ pricing exceeded competitive benchmark pricing by more than $3 billion annually, and $15 billion for the duration of the contract if excessive pricing continued. Anthem and Express Scripts are engaged in litigation over the 10-year contract.

By overcharging plans and plan participants for prescription drugs, Plaintiffs allege Defendants violated the Employee Retirement Income Security Act (“ERISA”), the Racketeer Influenced Corrupt Organizations Act (“RICO”), and the Anti-Discrimination provisions of the Affordable Care Act. Plaintiffs have also brought various common law claims.

Case Status

Judge Edgardo Ramos granted Defendants’ Motions to Dismiss Plaintiffs’ Second Amended Complaint on January 5, 2018. Judge Ramos dismissed Plaintiffs’ ERISA claims on the pleadings because neither Anthem nor Express Scripts acted as a fiduciary with regard to the actions at the heart of the case. Plaintiffs decided to appeal the district court’s decision and filed a Notice of Appeal on February 2, 2018. The case is currently pending in the United States Court of Appeals for the Second Circuit.

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