Judge J. Paul Oetken
Plaintiff employee health plans contain cost-sharing provisions charging patients higher co-pays for branded prescriptions that for lower-cost, generic treatments. Defendant pharmaceutical companies jointly market the branded drug Abilify. Since 2010 they have provided co-pays directly to patients, thereby reducing or eliminating patients’ out-of-pocket costs for Abilify, and purportedly encouraging patients to choose more expensive treatments which raise insurers’ costs. Plaintiffs sought to amend their complaint after all but one of the counts in their original complaint were dismissed with prejudice. Their proposed amended complaint eliminated the preserved portion of their RICO claim, repackaged the dismissed portions of the RICO claim, and asserted tortious interference with contract. Although the court permitted amendment with respect to the tortious interference claim, it deemed denied the RICO claim’s amendment as futile under In re Lehman Bros. Mortgage-Backed Sec. Litig. and Cuoco v. Moritsugu. Plaintiffs proposed amended complaint replicated their original complaint’s failure to allege any duty to identify the source of funding for patients’ co-pays.
