Insulin and diabetes drug manufacturers urged a federal judge again to dismiss 340B-related antitrust charges against them.

Drug Makers Ask Judge Again to Dismiss 340B-Related Antitrust Charges

Insulin and diabetes drug manufacturers charged with federal and state price-fixing violations over their 340B contract pharmacy restrictions have again told a federal judge why they think she should dismiss the case.

AstraZeneca, Lilly, Novo Nordisk, and Sanofi filed their latest brief on Feb. 4 in New York state health center Mosaic Health and Virginia-based Central Virginia Health Services’ (CVHS) antitrust suit. U.S. Chief District Judge Elizabeth Wolford of U.S. District Court for the District of Western New York is hearing the case.

Mosaic and CVHS argue that the companies colluded to raise their prices by eliminating contract pharmacy 340B drug discounts, while protecting their market position from competition from one another, in violation of federal and state antitrust laws.

The drug makers say the health centers lack standing to sue and offer no direct or circumstantial evidence of conspiracy to restrain trade.

The two sides also are fighting over whether Wolford should pause or continue fact-finding in the case pending her decision on the drug companies’ motion to dismiss the suit.

In 2011, the U.S. Supreme Court ruled that Congress did not give 340B covered entities a right to sue drug manufacturers over alleged overcharging. AstraZeneca, Lilly, Novo Nordisk, and Sanofi say in their Feb. 4 brief that Mosaic and CVHS “have dressed this suit in antitrust clothes to vindicate their favored interpretation of Section 340B—requiring defendants to ship their 340B statutorily priced drugs to unlimited commercial pharmacies without condition, the exact issue defendants are litigating directly with the government.”

“Plaintiffs’ lawsuit has nothing to do with free-market prices or discounts; it seeks an injunction requiring defendants to stop charging their independent market prices and instead revert to government-set prices,” the companies said. “This type of regulatory dispute cannot use the antitrust laws to circumvent” the Supreme Court’s ban on 340B enforcement lawsuits by covered entities.

The two sides appear to have satisfied all of Wolford’s orders for filings in the case, so all that is left is for her to render her decision and issue her final orders.

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