UnitedHealth and CVS Caremark have asked a federal judge to block Federal Trade Commission (FTC) Chair Lina Khan and two other commissioners from the agency's lawsuit against the nation's largest pharmacy benefit manager (PBM). I'm asking for it to be taken away from.
Lawyers for UnitedHealth's OptumRx and CVS Caremark say Khan, along with Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter, has a long track record of publicly disparaging PBMs that shows “serious bias” said.
The companies said in separate filings with the FTC late Tuesday that the commissioners were far from objective and that their involvement in the proceedings would be a violation of the companies' due process rights.
Last month, the FTC announced that it would sue CVS Caremark, Cigna's Express Scripts, and UnitedHealth's OptumRx for anticompetitive conduct that increased profits by “artificially” inflating the list price of insulin.
The companies argued that the commission had already concluded that PBMs' kickback practices were “unfair and illegal.”
“The three commissioners' public denunciations of Caremark, Zink, and the other defendants are clear to any neutral observer who, at the outset of this action, had in their minds an opposing view of PBMs and their actions.” would lead you to believe that you are irrevocably closed to the world,” Caremark wrote. motion. “We require their disqualification in this matter.”
Optum's motion asserted that the commissioner has an “extensive public record of statements and actions indicative of serious bias.”
“To an objective observer, these facts belie this administrative proceeding in which it is impossible for Optum Rx to persuade the Secretary with evidence,” the company's lawyers wrote.
Both PBMs called on Khan to attend the 2022 National Association of Community Pharmacists convention and praise the organization's work against PBMs.
“Event attendees wore anti-PBM paraphernalia, including pins derogating PBMs as 'vampires' and shirts depicting PBMs as vampires,” CVS said in its filing.
All of the committee members in question are Democrats. Two Republican FTC commissioners, Melissa Holyoake and Andrew Ferguson, previously resigned voluntarily.
The FTC declined to comment on the filing.
Seeking to disbar Mr. Khan is a common tactic among companies facing FTC lawsuits, including tech giants Amazon and Meta. Khan has refused, exposing him to criticism from Republicans in Congress.
The Biden administration is ramping up pressure on PBMs, scrutinizing the industry's business practices and shining a light on the opaque intermediaries at the heart of the drug distribution system.
A July FTC report accused PBMs of “inflating drug costs and squeezing high street pharmacies.”
Cigna's Express Scripts sued the FTC last month over the report, demanding it be retracted because it is “full of false and misleading claims” about the PBM industry.
The FTC announced the lawsuit a few days later.
