Drug Middlemen Lose Bid to Block FTC Case on Insulin Cost (1)

A federal judge in Missouri rejected three major pharmacy benefit managers’ push to pause the Federal Trade Commission’s in-house case against them over rising insulin costs.

Units of CVS Health Corp., Cigna Group, and UnitedHealth Group Inc. had moved for a preliminary injunction, claiming the FTC’s administrative proceedings run afoul of the Constitution. But their arguments largely collided with legal precedent the US District Court for the Eastern District of Missouri is bound by, according to a Tuesday opinion.

“The court does not find issuing a preliminary injunction is appropriate,” Judge Matthew T. Schelp wrote. “The court will not take the ‘exceedingly unusual’ of preliminarily enjoining Defendants from acting under their congressionally mandated authority that has ‘long been on the books.’”

The decision allows a high-profile FTC action targeting the alleged anticompetitive business practices of three PBMs— CVS’s Caremark, Cigna’s Express Scripts, and UnitedHealth’s Optum Rx—to proceed unimpeded.

The FTC alleged in a September action that they use illegal rebate programs that raise the price of insulin. The PBMs are fighting the claims. It wasn’t immediately clear whether the companies would appeal the ruling.

Targets of FTC actions have increasingly gone to court challenging aspects of the FTC’s administrative proceedings.

Yet the drug middlemen’s arguments, including that the FTC in-house case violated their private and due process rights, are unlikely to succeed on the merits, Schelp said. There “likely will be no harm to plaintiffs at all” with the matter proceeding, Schelp said, whereas an injunction would halt the FTC from carrying out its congressional mandate.

Humphrey’s Executor

The PBMs also argued that the FTC commissioners are unlawfully shielded from presidential firing and that the agency’s action was therefore invalid.

That argument has taken on added significance after the Trump Justice Department last week revealed that it would move to overturn a Supreme Court ruling that established those removal protections.

Still, the DOJ said in a Feb. 15 court filing defending the FTC that eliminating those shields shouldn’t trigger any injunctive relief for the PBMs.

Yet Schelp, who was appointed to the bench during the first Trump administration, said that the 1935 Supreme Court decision in Humphrey’s Executor v. United States continues to be a problem for the plaintiffs.

“In sum, Humphrey’s Executor binds this court, however ‘old and crumbling’ it may be,” Schelp wrote.

Express Scripts is represented by firms including WilmerHale and Rule Garza Howley LLP. Caremark is represented by Williams & Connolly LLP and Dechert LLP. Optum Rx is represented by Gibson, Dunn & Crutcher LLP.

The case is Express Scripts Inc. v. FTC, E.D. Mo., 4:24-cv-01549-MTS, 2/18/25.