Fraud, Nuisance Claims Offer a Winning Strategy to Defeat PBMs

The following article appeared on July 11, 2025 on Bloomberg Law.

While the Federal Trade Commission’s lawsuit against pharmacy benefit manager giants is paused by a temporary stay, lawsuits from state attorneys general and private plaintiffs offer prime opportunities for attorneys to hold pharmacy benefit managers accountable.

State lawsuits are rewriting the rules, demanding agile litigation playbooks. By wielding antitrust, fraud, and nuisance claims, you can deliver verdicts that ripple across healthcare, slashing costs, forcing accountability, and transforming healthcare’s future.

Antitrust Approach

PBMs’ influence on drug pricing calls for antitrust lawsuits to expose their market abuses. The FTC alleges PBMs such as CVS’s Caremark, Cigna’s Express Scripts, and UnitedHealth’s OptumRx colluded to inflate insulin prices, a claim echoed by pharmacies and health plans in Multidistrict Litigation No. 3080.

Take a page from Keaveny Drug’s playbook, which accused PBMs including GoodRx of rigging rebates to favor pricier drugs. Attorneys can win if they:

• Expose Collusion. Dive into discovery to unearth emails, contracts, or meeting notes showing PBMs like Optum Rx or Express Scripts coordinated to sideline cheaper generics. These smoking guns can nail Sherman Act violations, as MDL No. 3080 health plans aim to prove.
• Prove Harm. Quantify PBMs’ damage to patients and pharmacies. Health Care Cost Institute’s data shows insulin prices surged nearly 100% from 2012 to 2021, hitting consumers hard.
• Rally Plaintiffs. Unite cities, insurers, and pharmacies into a powerhouse class action. MDL No. 3080’s municipalities show how a cohesive class amplifies impact. Use expert witnesses like economists to tie PBMs’ practices to market distortions.

Fraud Claim Strategy

Fraud claims in MDL No. 3080 cast PBMs as masterminds of a scheme to inflate insulin prices, using laws such as the Racketeer Influenced and Corrupt Organizations Act to allege organized deception. These claims can unlock massive payouts if attorneys move to:

• Uncover Deception. Dig for PBMs’ rebate deals or pricing algorithms that may have misled insurers and patients about costs. For example, algorithms prioritizing high-cost drugs over generics can prove a fraudulent pattern, as Keaveny Drug’s suit suggests. Subpoena internal data to expose these tricks.
• Humanize Harm. Weave stories of patients skipping insulin doses, linking PBMs’ practices to real suffering. Partner with patient advocacy groups to gather testimonies that sway juries, making your case unforgettable.
• Pick Winning Cases. In MDL No. 3080, select plaintiffs with gut-punch stories—school districts or unions facing soaring healthcare costs—to set strong precedents. Craft narratives around clear fraud evidence, like inflated rebates, to lock in jury wins.

Public Nuisance Plan

PBMs’ failure to dam the opioid flood has sparked litigation, such as Michigan’s 2024 lawsuit against Express Scripts for allegedly enabling overprescribing. Public nuisance and fraud claims can hit PBMs hard if attorneys:

• Demand Accountability. Argue PBMs, as prescription gatekeepers, should have flagged excessive opioid scripts. Point to the 2018 injunction in MDL No. 2804 pushing PBMs to align with CDC guidelines.
• Leverage Data Analytics. Use pharmacy claims data to prove PBMs approved thousands of risky opioid prescriptions. Tools like SAS or Tableau can crunch this data, bolstering nuisance claims. Partner with data experts to make your case airtight.
• Go Local. Tailor claims to state laws, as Utah’s AG did against Express Scripts. Work with state AGs to align strategies, sharing evidence like prescription patterns to strengthen fraud arguments.

Navigating Regulatory Shifts

The FTC’s probe and state lawsuits signal a regulatory tsunami for PBMs, with new rules likely to curb rebates. The April 2025 stay in the FTC’s lawsuit, driven by commissioner recusals, delays federal action but leaves room for state and private litigation to surge. To stay ahead, litigators must:

• Track Changes. Monitor dockets for FTC updates or new state laws. For example, the FTC’s push to ban certain rebates could weaken PBMs’ defenses, opening new litigation angles.
• Advise Compliance. Guide corporate clients, like health plans, to audit PBM contracts for rebate clauses that could violate future rules. Propose transparent pricing models to avoid regulatory heat.
• Anticipate Defenses. Expect PBMs to argue compliance with existing laws. Counter by highlighting their systemic harm, using FTC findings to bolster your claims.

This is the moment for attorneys to defeat PBMs in court, win justice for patients, and redefine healthcare transparency. Track regulatory shifts, prep clients for compliance, and strike now—the clock’s ticking.