A federal judge has dismissed two counterclaims by Express Scripts Holding Co. in a multibillion dollar lawsuit brought on by insurer Anthem over its drug charging policies.
In the decision made public on Friday, U.S. District Judge Edgardo Ramos of the Southern District of New York tossed two claims brought by Express Scripts' for being too similar to other counter-claims by the pharmacy benefits manager.
Last March, Indianapolis-based Anthem sued Express Scripts over claims that the St. Louis-based pharmacy benefits manager was not passing along billions of dollars in savings from the drug prices it had negotiated. Anthem is seeking $15 billion in damages and the ability to terminate its contract with Express Scripts.
Express Scripts shot back with six counterclaims, including the two thrown out of court on Friday.
The two counterclaims dismissed were ExpressScript's claim that Anthem breached an implied covenant of good faith and fair dealing in negotiating with Express Scripts, and ExpressScript's claim that, if it were to terminate the contract, Anthem would be “unjustly enriched” in recouping a $4.7 billion upfront payment it made as a part of the deal.
Ramos determined that the breach of implied covenant of good faith and fair dealing claim was too similar to a breach of contract allegation. New York law bars such claims if they are not distinct from contractual claims, and the judge said that the factual allegations the two claims were based on were “precisely the same.”
Ramos dismissed the unjust enrichment claim on the grounds that both Anthem and Express Scripts believe the PBM agreement is valid and enforceable. The judge cited precedent that such claims are not allowed when both parties agree about the contract's validity and enforceability.
Express Scripts has also alleged Anthem doesn't have the right to a pricing concession or to end the PBM agreement. The PBM also accused Anthem of conducting periodic pricing reviews at different times not agreed to in their contract.
