Several recent federal district court decisions in so-called “third-party payor” class actions against prescription drug makers have highlighted pleading and class certification hurdles that could broadly affect litigation in this area.
Third-party payor plaintiffs in these suits, ranging from large national insurers to local union health benefit funds, typically claim that the defendant misrepresented, on a nationwide scale, a drug or medical device’s safety, efficacy or superiority and/or promoted it for uses that have not been approved by the U.S. Food and Drug Administration (FDA). In addition to state consumer fraud claims, they often bring federal Racketeer Influenced and Corrupt Organizations Act (RICO) claims predicated on alleged mail and wire fraud in promoting the “off-label” use of the drug or device.
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