ST. LOUIS — Express Scripts is seeking to have a July 2024 report vacated and for the Federal Trade Commission (FTC) to retract its statements regarding pharmacy benefit managers (PBMs) in a recent federal lawsuit.
Express Scripts is also calling for Chairperson Lina M. Khan to be recused from any further proceedings involving PBMs due to her apparent bias, the complaint states.
Express Scripts believes that the commission has strayed from its mandate of impartiality and fair competition in favor of political motivations, according to the Sept. 17 complaint filed in U.S. District Court for the Eastern District of Missouri.
Express Scripts filed the complaint seeking judicial intervention against what it deemed to be an unfair, biased and defamatory report issued by the FTC.
The report alleged PBMs such as Express Scripts inflate drug prices and harm independent pharmacies.
"The FTC’s interim report lays out how dominant pharmacy benefit managers can hike the cost of drugs—including overcharging patients for cancer drugs," Khan said of the report. "The report also details how PBMs can squeeze independent pharmacies that many Americans—especially those in rural communities—depend on for essential care. The FTC will continue to use all our tools and authorities to scrutinize dominant players across healthcare markets and ensure that Americans can access affordable healthcare."
Express Scripts argues that the report is not based on data provided under Section 6(b) of the FTC Act, but rather on unverified comments from companies that have an interest in blaming PBMs for rising drug costs.
Express Scripts claims that PBMs work to lower drug costs by negotiating with pharmaceutical companies and retail pharmacies on behalf of health plan sponsors, including employers, unions
These negotiations have saved billions in drug costs and enabled plan sponsors to continue offering prescription benefits despite rising prices, Express Scripts claims.
The company alleges that the FTC, under Khan, disregarded evidence and produced a politically motivated report, breaking from the agency’s previous findings that PBMs are pro-competitive and beneficial to consumers.
The complaint also claims that Khan has a longstanding bias against PBMs, dating back to her time as a law student when she criticized PBMs for supposedly keeping drug prices high, despite the FTC’s previous conclusions to the contrary.
Express Scripts claims that her anti-PBM views influenced the current report, which relies heavily on public comments and third-party sources rather than the data submitted by PBMs.
Express Scripts noted in the complaint that FTC Commissioner Holyoak wrote a dissenting opinion, criticizing the report for its lack of empirical evidence and described the process as politicized.
Holyoak noted that the report failed to meet the FTC’s standards for providing evidence-based, objective information to the public and Congress, according to the suit.
Express Scripts is seeking for the report to be vacated and for it to be removed from all FTC websites. It is also seeking for Khan to be recused from all commission actions regarding Express Scripts. The company is represented by Sarah C. Hellmann and Christopher A. Smith of Husch Blackwell; Jennifer Milici, Perry A. Lange and Sabrina Minhas of Wilmer Cutler Pockering Hale & Dorr; and Charles F. Rule, Daniel J. Howley and Derek W. Moore of Rule Garza Howley.
The attorneys did not respond to requests for comment.
U.S. District Court for the Eastern District of Missouri case number: 4:24-cv-01263