Feds tell Supreme Court to skip Anthem, Express Scripts case

U.S. Solicitor General Elizabeth Prelogar told Supreme Court justices that a case asking whether payers and pharmacy benefit managers face Employee Retirement Income Security Act liability when negotiating drug prices doesn't merit review, Bloomberg reported May 25. 

A federal appellate court in 2020 declined to hold either Anthem or Express Scripts liable as a fiduciary under ERISA, according to the report. Ms. Prelogar said in a brief to Supreme Court justices that the appellate court's decision is a nonprecedential ruling that doesn't conflict with any Supreme Court or appeals court decisions.

The case challenges a 2009 deal where Express Scripts agreed to provide drug services for Anthem health plans, according to the report. In turn, Anthem sold Express Scripts three PBM companies for more than $4 billion. A class-action lawsuit was filed against the companies alleging that Express Scripts paid a multibillion premium to overcharge Anthem plan members for prescription drugs. The appellate court ruled in favor of the companies, determining that the decision to sell a corporate asset isn't a fiduciary action, even if it affects how much plan participants pay for drugs.

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