A Missouri federal judge has thrown out a proposed class action accusing the country's three largest pharmacy benefit managers — owned by CVS, UnitedHealth Group and Cigna Group — of inflating prescription costs through their rebating practices.

U.S. District Judge Beth Phillips in a Tuesday order granted the motion to dismiss brought by Caremark, OptumRX and Express Scripts, saying the plaintiffs — consumer Skye Clements and third-party payors Iberia Parish School Board and the City of Laurel, Mississippi — failed to allege parallel activity among the companies as required to pursue their claim that they conspired to increase and retain rebate fees through their use of aggregators to set the rebates manufacturers have to pay.

Pharmacy benefit managers, or PBMs, help negotiate prices insurance companies and benefit plans pay for prescription drugs. The country's three largest PBMs are each owned by healthcare conglomerates: Express Scripts is owned by Cigna, OptumRx by UnitedHealth, and Caremark by CVS, which also owns health insurer Aetna Inc.

Among other claims, the plaintiffs contend that the use of these aggregators allowed the PBMs to control more rebate negotiations, drive out competitors and raise their own profits, but Judge Phillips determined that they have not alleged parallel conduct.

For one thing, "despite plaintiffs' argument that defendants acted at the same time, the amended complaint alleges that the conduct occurred at different times over the course of years," her order states. The judge noted that Express Scripts created its aggregator in 2019, CVS created one in 2020, and UnitedHealth created one in 2021.

"The allegations of aligned activity fail because similarities in business activities alone do not prove conspiratorial parallel conduct and because the timing must also be parallel," Judge Phillips said.

As for the plaintiffs' Robinson-Patman claim, the judge determined that they have not alleged an antitrust injury, which is defined in the order as "an 'injury of the type the antitrust laws were intended to prevent ... that flows from that which makes defendants' acts unlawful.'"

In the case, the third-party payors say they paid unfairly increased prices for drugs as a result of the PBMs' alleged scheme to pocket rebates, according to the order. That is considered a proper injury under some antitrust laws, but the Robinson-Patman Act is different, the judge pointed out.

"'Unlike the Sherman Act, which protects competition, not competitors, the Robinson-Patman Act extends its protection to competitors,'" Judge Phillips said, citing the 1989 First Circuit case Monahan's Marine Inc. v. Boston Whaler Inc. "It protects smaller companies from the ill effects of discriminatory actions by large companies by protecting access to the market or to goods for sale."

"But in this case, the third-party payor plaintiffs are acting as ultimate consumers, rather than as defendants' competitors, and their alleged damages are not related to access to drugs but rather to the incidental cost increase in the drugs resulting from defendants' alleged rebate scheme," the judge said.

Counsel for the parties did not immediately respond to requests for comment late Wednesday.

The Federal Trade Commission brought a similar administrative case in September 2024, accusing Express Scripts, OptumRx and Caremark of using rebate schemes that prevent patients from accessing lower-priced insulin drugs by prioritizing drugs with high list prices.

The companies have consistently argued that manufacturers alone set the prices and have contended that benefit managers work to lower prices for insurers and others that pay for healthcare.

Express Scripts had been pushing to force a commission attorney to sit for a deposition to discuss the FTC's investigation of the industry and the role insulin manufacturers play in setting prices.

But Administrative Law Judge Jay L. Himes denied the request last week, saying the companies could not use discovery to probe the commission's "mental processes" or its decision to file a complaint.

The FTC is considering a potential settlement with Express Scripts, issuing an order Wednesday withdrawing the company and its related entities from adjudication to consider a proposed consent agreement.

The potential deal has already been approved by the directors of the FTC's Bureaus of Competition and Consumer Protection and will now be reviewed by the commissioners, according to the order.

The PBMs also have their own case pending in federal court challenging the FTC's in-house administrative process on constitutional grounds. Like other cases, the companies say the commission's in-house proceedings violates due process rights and their right to have the claims decided by a federal judge.

The plaintiffs are represented by Rex A. Sharp, Isaac L. Diel, Ryan C. Hudson, Ruth Anne French, Jennifer Salva-Cushing and Hammons P. Hepner of Sharp Law LLP, Warren T. Burns, Kyle Oxford, Korey Nelson, Amanda K. Klevorn and Ellen E. Short of Burns Charest LLP, Daniel C. Hedlund, Michelle J. Looby and Bailey Twyman-Metzger of Gustafson Gluek PLLC, David M. Cialkowski and Zachary J. Freese of Zimmerman Reed LLP, and Steven N. Williams.

The CVS defendants are represented by Daniel E. Blegen, Casey Murray and Emily Reed of Spencer Fane LLP, and Enu A. Mainigi, Jonathan B. Pitt and R. Kennon Poteat III of Williams & Connolly LLP.

The Express Scripts defendants are represented by Michael J. Lyle, Eric C. Lyttle, Meghan A. McCaffrey, Michael D. Bonanno and Michael J. Sebring of Quinn Emanuel Urquhart & Sullivan LLP, and Taylor Concannon Hausmann of Husch Blackwell LLP.

The UnitedHealth defendants are represented by Bradley J. Schlozman of Hinkle Law Firm LLC, and Brian Boone, Brandon C.E. Springer and John Snyder of Alston & Bird LLP.

The case is Clements et al. v. CVS Health Corp. et al., case number 4:25-cv-00126, in the U.S. District Court for the Western District of Missouri.