Yesterday in New Jersey federal court, the Type 1 Diabetes Defense Foundation and its president Julia Boss—collectively the “Foundation Plaintiffs”—filed a Notice of Voluntary Dismissal in Boss v. CVS Health (Civil Action No. 17-01823). Boss and T1DF also voluntarily dismissed their claims in the related cases Bewley v. CVS Health (Civil Action No. 17-12031) and Prescott v. CVS Health (Civil Action No. 17-13066). The Voluntary Dismissal counters a Tolling and Standstill Agreement (“Agreement”) entered into between fourteen law firms, including In re Insulin Pricing Litigation’s interim co-lead counsel and Keller Rohrback, the MSP Plaintiffs (payers) and PBM Defendants (agents and subsidiaries of payers)—here described collectively as the “Joint PBM-Payer Enterprise.”
The Agreement, executed by the Joint PBM-Payer Enterprise in January 2018 but not disclosed to plaintiffs Boss or T1DF until December 27, 2018, aims at preventing prosecution of any claim against PBM Defendants. (Boss and T1DF were not parties to the Agreement, and dispute the validity and enforceability of the Agreement.) The Agreement specifically references Boss v. CVS Health (Article 9) and, if enforceable, would also preclude current named plaintiffs and part of the putative classes in the Bewley (glucagon) and Prescott (test strip) cases from advancing claims against PBM Defendants (Article 2). Prosecuting Boss v. CVS at this time would have required directly challenging the capacity of co-lead counsel in the insulin litigation to enter into an agreement for the sole benefit of those attorneys’ current and/or former payer clients. Boss and T1DF were unable, for a period of over 12 months, to secure litigation counsel and local counsel willing to represent them in opposing this Joint PBM-Payer Enterprise. Throughout 2018, the Agreement effectively protected payers and their PBM agents from public outrage as state and federal actors began to investigate payer-controlled cost sharing and rebate pass-through.
The filing of a Notice of Voluntary Dismissal cuts the procedural Gordian knot.
UPDATE: Order from the Hon. Brian Martinotti entered January 7, dismissing Boss. v. CVS Health without prejudice in its entirety and also dismissing without prejudice the Foundation Plaintiffs’ claims in the related cases is available here.Read More