Court Denies Class Certification for ERISA Plan Participants Challenging EpiPen Prices

The U.S. District for the District of Minnesota has denied class certification to putative classes of ERISA plan participants challenging rising EpiPen prices. The participants alleged that four of the largest pharmacy benefit managers (“PBMs”) owned and breached ERISA fiduciary duties to health plan participants who purchased EpiPen. Specifically, the plaintiffs claimed that the PBMs’ negotiation of rebates caused EpiPen’s price increase, and the plaintiffs claimed that they bore the brunt of the increase because their plans required them to pay high deductibles and co-insurance.

The court denied certification of the four classes (one class for each PBM). The court found that whether the PBMs had any ERISA fiduciary duty, breached that duty, or caused any injury required consideration of the numerous, highly individualized contracts that governed the procurement of rebates, thus defeating the commonality requirement of Rule 23(a)(2).

The case is In re: EpiPen ERISA Litig., No. 17-1884 (PAM/HB) (D. Minn. Aug. 5, 2020).

Nick Bullard

Nick Bullard

Nick is a trial associate in Dorsey’s office in Minneapolis. His practice focuses on complex and high-stakes commercial litigation at the trial and appellate levels. He has particular expertise in defending clients in ERISA class actions involving both retirement and health and welfare plans. In his ERISA practice, Nick has represented some of the largest companies in the world in industries ranging from banking to healthcare.

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