Berman Tabacco


Klein v. Prime Therapeutics, et al., No. 17-CV-1884 (PAM/SER) (D. Minn.), and Illis v. Optum, Inc., No. 17-cv-5154 (PAM/SER) (D. Minn.)

Berman Tabacco currently represents a class of EpiPen purchasers that have sued major pharmacy benefit managers (“PBMs”). The lawsuits assert that the PBMs—Express Scripts, CVS Health, OptumRx, and Prime Therapeutics—bear responsibility for the massive increase in the amounts EpiPen purchasers paid out-of-pocket for EpiPen. The EpiPen purchasers allege that the PBMs extracted enormous rebates and other monies from Mylan—and kept a significant amount of those rebates and other monies for themselves—in exchange for preferred placement of EpiPen on health insurance drug lists. Plaintiffs allege that doing so caused Mylan to raise EpiPen’s list price in order to offer greater rebates and other monies and maintain preferred placement on drug lists. This, in turn, allegedly caused deductible payments for EpiPen—the price paid by EpiPen purchasers with annual health insurance deductibles—to increase by nearly 1600%, and EpiPen coinsurance payments—the percentage of the EpiPen price paid by EpiPen purchasers with coinsurance—to increase by more than 1,500%. In extracting highly profitable rebates and other monies for EpiPen at the expense of plan members, the EpiPen purchasers allege their PBMs breached their fiduciary duties and engaged in prohibited transactions under ERISA.