We told you we would keep an eye out — for whether, and when — any subsequent non-settling plaintiffs might try their cases for antitrust (treble) damages on the Zetia^® class litigation, against Merck and or Glenmark.

Tonight, we have some news. One of the non-settling insurers, United Healthcare, has offered the view that it will either accept remand now, to its home district in Minnesota’s federal courts, or it is happy to await a couple more finer clarifying decisions, from the MDL court in Norfolk, Virginia, before going to trial on remand.

It truly doesn’t care — because it knows it has the tiger by the tail, now — with a prior $600 million settlement already on the books. In any event, here is tonight’s full four page letter from counsel, and a bit:

…Pursuant to the Court’s May 26, 2023 Order, I write on behalf of Plaintiff United HealthCare Services, Inc. (“United”) to clarify United’s position on “whether it formally opposes remand at this juncture.” Order, ECF No. 2143 (May 26, 2023). United does not oppose remand at this juncture.

As United stated in its May 22 letter, some issues common to the cases of the “Opt Out Plaintiffs” (including United) remain unresolved. ECF No. 2130. Those issues are: (1) whether Plaintiffs suffered antitrust injuries as a result of Defendants’ unlawful delay of generic ezetimibe in the form of overcharges for Vytorin, which was Merck’s branded medication consisting of a fixed dose of branded Zetia and a generic statin; (2) whether Plaintiffs have adequately pled certain state law consumer protection and unjust enrichment claims; and (3) the potential for discovery relating to those claims. The Vytorin issue was first raised in motions to dismiss United’s complaint. ECF Nos. 1282-84, 1302, 1311. The Court referred those motions to the Hon. Douglas E. Miller and it was argued on January 27, 2022. ECF No. 1489.

At Judge Miller’s request, counsel for Kaiser, Humana, and Centene attended the hearing to answer questions so that he would not have to decide the issue multiple times. Id. at 7. Counsel for those Plaintiffs told Judge Miller that they had pled an additional Vytorin theory than the one alleged by United. Id. at 7-8. Judge Miller ruled that he would allow United to amend its complaint to allege certain additional facts specific to United’s argument that, if generic ezetimibe were available, it would have used the tools at its disposal (such as formulary changes, adding step therapy requirements, or excluding coverage of Vytorin) to shift coverage from Vytorin to its two generic components, ezetimibe and a statin, at far lower prices.

The Vytorin issue raises certain common issues of fact and law, such as whether Merck priced Vytorin by reference to Zetia at supracompetitive prices (Zetia comprised 95% of Vytorin’s raw material cost). See ECF No. 1531 at 4-5. Other issues, however, are unique to each Plaintiff; for example, how that Plaintiff would have responded to the availability of generic ezetimibe. In United’s case, it had internally decided that Vytorin was “therapeutically equivalent to the combination of Zetia and simvastatin” in 2009, which means that United could have excluded coverage of Vytorin had generic ezetimibe been available….

Now you know — and it seems certain that Merck and Glenmark are far from done paying for this overreach by Fred Hassan. Now, off to get some hand turned vanilla ice cream, with real, fresh dark Michigan cherries scraped into it, on a flawless evening. Yum!

नमस्ते