Last week, in Oregon’s Federal District Court, Judge Michael H. Simon denied summary judgment to the defendant, LegitScript, an online verification company, thwarting its effort to escape a lawsuit brought by PharmacyChecker. The antitrust lawsuit alleges that LegitScript illegally conspired with numerous Big Pharma-allied groups to blacklist PharmacyChecker on the Internet.
LegitScript argued that PharmacyChecker does not have antitrust standing because its business, providing information on the Internet that Americans use to find vetted international online pharmacies and compare their prices, is unlawful. Judge Simon disagreed, writing “PharmacyChecker.com’s business is legal.” Further, Judge Simon wrote, “It would contravene Supreme Court and Ninth Circuit precedent for this court to fashion a new rule that deprives a plaintiff of an antitrust cause of action and immunize an antitrust defendant when the plaintiff’s business is entirely legal.” (Emphasis added).
My Quick Takeaways
- PharmacyChecker’s mission of helping people afford prescription drugs is entirely vindicated.
- PharmacyChecker has the right to protection under U.S. antitrust laws.
- Big Pharma loses this latest battle.
What’s going on here?
PharmacyChecker has provided information for over 20 years that people in the U.S. (and people worldwide) have used to find vetted international online pharmacies to fill prescriptions that are unaffordable domestically. In those instances, patients are importing prescription drugs from Canada and other countries for personal use, which, according to the FDA, is illegal “under most circumstances.” Relatedly, according to the Kaiser Family Foundation, personally importing prescription drugs is only “technically illegal.” First, people are not prosecuted for importing a prescription drug for their own use. Second, Congress has spoken on this very issue, declaring that the FDA should permit personal drug importation that is not an unreasonable risk.
It’s no secret that Big Pharma opposes prescription drug importation. Brand-name drug prices are lower in Canada and everywhere else in the world than in the United States. Providing access to information that Americans can use to safely import prescription drugs at lower prices threatens Big Pharma’s profit model. Over the years, Big Pharma has funded “non-profit” groups and programs that have sought to undermine and discredit PharmacyChecker’s work. Formerly writing on PharmacyCheckerBlog, I pushed back against them with the power of the proverbial pen. The groups that I often wrote about were LegitScript, National Association of Boards of Pharmacy (NABP), Alliance for Safe Online Pharmacies, Center for Safe Internet Pharmacies, and Partnership for Safe Medicines. For years, I’ve been writing that these groups intentionally conflate affordable prescription drugs sold in other countries with counterfeit drugs and the opioid crisis.
At the end of 2018, the NABP added PharmacyChecker to a list of “Not Recommended Sites.” NABP’s Not Recommended list is comprised of about 13,000 websites, many of which are rogue online pharmacies that intentionally sell prescription drugs without requiring a valid prescription, counterfeit, or otherwise substandard drugs: online pharmacies that PharmacyChecker itself warns consumers to avoid. NABP also added PharmacyCheckerBlog.com. Soon thereafter, PharmacyChecker’s web traffic tanked, in large part because Google’s search results drastically demoted PharmacyChecker on searches related to finding safe international online pharmacies and their prices, which is PharmacyChecker’s niche. More conspicuously, Microsoft’s search engine Bing added a red warning box, based on NABP list, curtailing clicks to PharmacyChecker.
In 2019, PharmacyChecker sued all the aforementioned groups in the U.S. Court for the Southern District of New York, alleging that “a conspiracy involving front groups for Big Pharma is keeping…lower priced drugs out of reach of millions of Americans.” In that case, LegitScript filed a motion to dismiss, arguing that the New York court lacked personal jurisdiction over it and the court agreed. PharmacyChecker severed and transferred its antitrust claim against LegitScript to Oregon, where LegitScript is headquartered. LegitScript failed in its motion to dismiss in 2022. Then, among other motions, it filed a motion for summary judgment and lost.
Earlier last year, the court in New York granted summary judgment for the other defendants under a new antitrust standard, one asserting that a plaintiff doesn’t have antitrust standing if the information it provides is “geared toward facilitating” illegal conduct of others, namely the importation of prescription drugs for personal use. I expressed my disappointment at the time, asserting that I did not agree with the decision.
Judge Simon rejected the New York court’s position. Notably, Judge Simon asserted that his holding was not only based on precedent in the Ninth Circuit (of which Oregon is part), but also the Supreme Court. Further, he wrote that “the evidence in the record does not show that any aspect of PharmacyChecker’s business is illegal.” (Emphasis added).
Bona Law, the law firm engaged by PharmacyChecker, did an excellent job of summarizing here.
What’s next?
PharmacyChecker will continue its case against LegitScript in Oregon.
Further, armed with the Oregon court’s agreement with PharmacyChecker on issues of fact and law, PharmacyChecker intends to appeal the New York district court’s opinion so that it can prosecute its case against LegitScript’s alleged co-conspirators: the Alliance for Safe Online Pharmacies, Center for Safe Internet Pharmacies, National Association of Boards of Pharmacy, and Partnership for Safe Medicines. However, another claim, under the Lanham Act and against only the NABP, has not yet been adjudicated. PharmacyChecker’s appeal cannot happen until the New York judge issues a final judgment. [Disclaimer: I do not speak on behalf of PharmacyChecker but will share my opinions moving forward in a personal and advisory capacity here on policyprescription.com].
