Average Wholesale Price (AWP) litigation
Since 2004, Bates White experts have analyzed the economic issues underlying Average Wholesale Price (AWP) claims. We have worked on behalf of numerous pharmaceutical companies in lawsuits that span a variety of jurisdictions and include allegations in class action, False Claims Act, and price reporting compliance and analysis litigation brought by classes of private payors, attorneys general in several states, and the US Department of Justice.
Bates White’s work has included testifying on and analysis of issues of predominance, common impact, feasible damage methodologies, and merits. Our experts have examined price determination, policymaking, contracting structures, and transactional data used by pharmaceutical manufacturers, private medical clinics, retail pharmacies, pharmacy benefits managers, Medicare, Medicaid, private health insurers, third-party administrators, drug wholesalers. In this work, Bates White has analyzed competitive dynamics among providers, Medicare, and third-party payors.
Court rulings validate the analyses and conclusions of our experts in a number of cases.
Representative cases from a few of the many we have worked on
- In re Pharmaceutical Industry Average Wholesale Price Litigation—Provided expertise on issues of predominance, feasible damage methodologies, and merits on behalf of a joint defense group of leading pharmaceutical manufacturers concerning allegations of fraudulent and deceptive pricing. Submitted written, deposition, and trial testimony. In addition, provided testimony concerning competitive dynamics between providers of Medicare and third-party payors and the effect of Medicare Prescription Drug Improvement and Modernization Act of 2003. Judge denied certification to the self-administered drug class, which represented most of the commerce allegedly affected.
- Alabama AWP litigation—In the Alabama Supreme Court case against pharmaceutical manufacturers AstraZeneca, GlaxoSmithKline, and Novartis, which were appealing jury verdicts totaling nearly $275 million, provided testimony on behalf of all three defendants to demonstrate that Alabama’s Medicare Agency was on notice of underlying facts and had intentionally paid pharmacies more than their drug acquisition costs. The Court overturned the jury verdicts; its ruling cites many arguments presented by Bates White’s expert. This was one of two cases where a state Supreme Court reversed lower court decisions against defendants in AWP cases in which Bates White was involved, the other being Pennsylvania.
- Texas AWP litigation—Provided consulting and expert services on behalf of generic pharmaceutical manufacturers Alpharma USPD, Purepac Pharmaceutical, and Activis, which were facing civil claims that they defrauded Texas’s Medicaid program by artificially inflating prices for its generic drugs. Analyzed prices submitted by the manufacturers to the Texas Vendor Drug Program (VDP) and opined on whether those submitted prices caused the VDP to overpay for prescription drugs.
- AWP litigation in multiple other states—Provided written, deposition, and trial testimony on behalf of a number of pharmaceutical manufacturing companies (e.g., Johnson & Johnson, Pfizer and its subsidiaries Pharmacia and Greenstone (for generics), Mylan Pharmaceuticals, Dey, Abbott Laboratories) that had been sued by states for allegedly violating consumer protection laws by inflating the AWP of prescription drugs covered by Medicare and Medicaid: Idaho, Kentucky, Massachusetts, Montana, Nevada, New York, Pennsylvania, and Wisconsin. Addressed issues of liability, causation, and damages; provided background information on pharmaceutical pricing; and evaluated state allegations. In the Illinois ACP litigation, prepared an affidavit in support of summary judgment motions to provide industry background and applied liability principles previously defined by a federal judge overseeing much of the AWP litigation.