On September 17, Express Scripts, Inc. (“Express Scripts”), one of the largest pharmacy benefit managers (PBMs) in the United States, brought suit against the Federal Trade Commission (“FTC”) over its July 2024 interim report on the PBM industry. Express Scripts claims that the FTC’s report, titled “Pharmacy Benefit Managers: The Powerful Middlemen Inflating Drug Costs and Squeezing Main Street Pharmacies,” is defamatory, biased, and based on unfounded accusations. Express Scripts asserts that the report falsely portrays PBMs as inflating drug costs and harming independent pharmacies, whereas according to Express Scripts, “its efforts to lower prescription drug costs have saved plan sponsors and their members tens of billions of dollars in drug costs over the past decade alone.” Express Scripts alleges that the FTC ignored facts in favor of politically motivated conclusions, and that the report has damaged its reputation and business.
The complaint alleges five counts: (1) defamation under Missouri common law; (2) violation of Express Scripts’ due process rights under the 5th Amendment to the U.S. Constitution; (3) violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A) as an arbitrary and capricious agency action; (4) violation of the APA as contrary to the public interest; and (5) that Section 41 of the FTC Act violates Article II, Sections 1 and 3 of the U.S. Constitution.
Express Scripts seeks to have the report vacated and set aside; an order requiring the FTC to remove the report from all FTC websites; an injunction requiring FTC Chair Lina M. Khan’s recusal from all Commission actions pertaining to Express Scripts; and an order awarding Express Scripts its reasonable costs, including attorneys’ fees, incurred in bringing the action.
The case is pending in the U.S. District Court for the Eastern District of Missouri (C.A. 4:24-cv-01263), and is assigned to Chief District Judge Stephen R. Clark.
Stay tuned to Big Molecule Watch for further updates on this litigation.