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Judge tosses Humana, Centene RICO suits over Suboxone - Reuters

Pharmacist Jim Pearce fills a Suboxone prescription. REUTERS/Brian Snyder (UNITED STATES - Tags: HEALTH SOCIETY DRUGS)

  • Judge finds indirect plaintiffs lacked RICO standing
  • MDL over alleged scheme to suppress competition remains pending

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(Reuters) - A federal judge on Thursday dismissed lawsuits by health insurer Humana Inc and managed care company Centene Corp accusing Indivior PLC, its former parent Reckitt Benckiser and partner Aquestive Therapeutics of scheming to suppress competition for the opioid addiction drug Suboxone.

U.S. District Judge Mitchell Goldberg ruled on Thursday that the plaintiffs lacked standing to sue under the federal Racketeering Influenced and Corrupt Organizations Act because they were indirect purchasers of Suboxone.

Humana, which is represented by Daniel Sasse of Crowell Moring, declined to comment.

Centene, which is represented by the same counsel, did not immediately respond to a request for comment. Nor did Indivior or its lawyer Jonathan Berman of Jones Day, Reckitt Benckiser or its lawyer Mark Ford of Wilmer Cutler Pickering Hale and Dorr or Aquestive or its lawyer James Hibey of Steptoe Johnson.

The lawsuits, filed by Humana and Centene last year and coordinated before Goldberg, claim that the defendants engaged in an anticompetitive scheme to coerce patients to switch from a tablet version of Suboxone, which was set to lose regulatory exclusivity in 2009, to a dissolvable oral strip, or film, version.

The plaintiffs said Indivior withdrew the tablets from the market over false safety concerns, and sought to block generic versions of the tablet through a sham citizen petition with the Food and Drug Administration raising safety issues, among other anticompetitive tactics.

A multidistrict litigation consolidating antitrust claims over Suboxone has been pending in the Philadelphia court since 2013, but Humana and Centene's lawsuit sought to recover under RICO, as well as various state antitrust laws.

The defendants moved to dismiss.

Goldberg wrote Thursday that, under clear 3rd Circuit precedent, indirect purchasers - such as insurers that pay reimbursements for drugs, rather than the wholesalers that buy the drugs directly - do not have standing to sue under RICO.

"Indeed, plaintiffs unequivocally admit that they did not directly purchase Suboxone from defendants but rather reimbursed prescriptions for Suboxone that were already purchased," he wrote. "Accordingly, plaintiffs have suffered only 'passed on' injuries, thereby depriving them of standing to pursue their alleged RICO claims."

Goldberg declined to exercise supplemental jurisdiction over the remaining state antitrust claims.

"These theories will require that I apply the laws of various states, which would not only be cumbersome, but would reflect a lack of comity to the individual state courts who are adept at applying their own states' laws," he said.

Furthermore, he said, the MDL was pending in the same court and already far advanced, with fact discovery completed and summary judgment motions fully briefed. Exercising supplemental jurisdiction over new state law claims based on the same facts would "effectively hit the restart button" on the case, he said.

The cases are Humana Inc v. Indivior Inc et al, No. 20-4602, and Centene Corp v. Indivior Inc et al, No. 20-5014, both in the U.S. District Court for the Eastern District of Pennsylvania.

For Humana and Centene: Daniel Sasse of Crowell Moring

For Indivior: Jonathan Berman of Jones Day

For Reckitt Benckiser: Mark Ford of Wilmer Cutler Pickering Hale and Dorr

For Aquestive: James Hibey of Steptoe Johnson

Read more:

Indivior can't reverse Suboxone antitrust class certification

Brendan Pierson

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at [email protected]