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.

We are very pleased to welcome MMA fighter Anna Hyvärinen as the first brand ambassador for the Type 1 Diabetes Defense Foundation. Anna will be wearing T1DF’s logo on her jiu jitsu Gi and MMA fight gear in competitions coming up this summer and beyond. 

The Type 1 Diabetes Defense Foundation is the only U.S. nonprofit dedicated to the rights of people with type 1 and insulin-dependent diabetes. T1DF and its president Julia Boss (individually) are currently plaintiffs in several drug pricing lawsuits we initiated in early 2017, including Boss v. CVS (insulin pricing), now consolidated into In re Insulin Pricing Litigation (Case 3:17-cv-00699-BRM-LHG).

As a small advocacy 501(c)(3) that’s spent the past year fighting hard in a David-and-Goliath struggle on insulin, glucagon, and test strip pricing—pitting us against some of the largest corporations and class action law firms in the United States—T1DF is especially proud to see our blue diabetes justice logo on the powerful forearms and shoulders of 5’4” flyweight/strawweight Anna Hyvärinen.

The health care debates of 2017 taught us that any conversation about the supposed premium impact of a specific drug or medical condition can be turned into an argument that people with pre-existing conditions should be pushed into high-risk pools or pay condition-specific premiums.

Health care cost legislation should avoid triggering stigma or workplace discrimination against people with disabilities or chronic medical conditions.

Oregon’s House Bill 4005 does the opposite. It directs insurers to tell the public that certain conditions are causing increased “spending.” And it bases its reporting on a definition—“‘Price’ means the wholesale acquisition cost”—so patently misleading that it’s tempting to believe HB 4005’s central purpose is to insert it into Oregon law, to prevent people harmed by insurers’ dual pricing from recognizing or taking action on their injury.

Oregon’s leaders know that insurers are negotiating low rebated net prices for themselves, while forcing patients to pay much higher list prices. They know insurers are leaving rebates out of the equation when they calculate the premiums we pay. Our lawmakers should now be demanding transparency and public reporting on the harm caused by insurers’ drug-pricing practices and the impact of those practices on individual cost-sharing and premium valuation—not passing a blame-shifting bill that’s opaque where transparency would do the most good.