Judge Rules Case May Proceed Against Four Pharmaceutical
In a ruling on July 3, 2012, Judge Robreno denied Defendants'
Motion to Dismiss in part, allowing Plaintiff's case to proceed
against four pharmaceutical manufacturer Defendants (AstraZeneca,
Biogen Idec, Cephalon and Genzyme). United States ex
rel. Streck v. Allergan, Inc. et al., 2012 U.S. Dist. LEXIS
92936 *58-60 (E.D. Pa. July 3, 2012). These constitute the
"Discount Defendants" which Plaintiff alleges knowingly underpaid
rebates owed under the Medicaid Drug Rebate Program by
underreporting AMPs for their drugs. The Court held that the
Discount Defendants were at least reckless in concluding that
service fees paid to wholesalers were not to be treated as
discounts and subtracted from AMP (thereby lowering the rebates
they owed the government), but rather were bona fide
service fees. Id. at *25-37.
Although Plaintiff's Complaint did not detail the exact false
claims submitted by Defendants (the false AMPs), the Court
nonetheless found that the Complaint satisfied the specificity
required by Rule 9(b). Id. at *45-51. The
Court noted that "[o]nce discovery in this case proceeds, and the
veil of confidentiality covering the information Defendants
submitted to the Government is lifted . . . Plaintiff may fill in
the missing false figures upon which Plaintiff claims Defendants
based their AMP calculations." Id. at FN 13.