Case 3:17-cv-00699-BRM-LHG Document 119 Filed 03/16/18 Page 1 of 3 PageID: 1326

Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

Pro Se Plaintiff
RECEIVED
MAR 16 2018
UNITED STATES DISTRICT COURT
AT8:30 M
DISTRICT OF NEW JERSEY WILLIAM T. WALSH
CLERK

Civil Action No. 17-699 (BRM)(LHG)

PRO SE PLAINTIFF JULIA BOSS'S

IN RE INSULIN PRICING LITIGATION NOTICE OF MOTION FOR

RECONSIDERATION OF
CONSOLIDATION ORDER PURSUANT
TO LOCAL RULES 7.l(i))

TO: All Attorneys and Parties of Record

PLEASE TAKE NOTICE that at a date and time to be determined by the Court, the

undersigned pro se plaintiff Julia Boss ("Julia Boss") will move before the Hon. Brian R.

Martinotti, U.S.D.J., at the Clarkson S. Fisher Federal Building & U.S. Courthouse, 402 East

State Street, Trenton, New Jersey 08608, for an Order (a) amending the consolidation order

Docket Entry No. 89 entered on January 19, 2018, to accurately reflect the Type 1 Diabetes

Foundation's and Julia Boss's refusal to withdraw the PBM and insurer defendants, to

withdraw related claims (including ERISA claims) in the Boss action, Case Number 3:17-

cv-01823-BRM-LHG, (b) amending the said consolidation order to accurately reflect the Type 1

Diabetes Defense Foundation's and Julia Boss's disagreement with interim co-lead counsel

- Page 1 of2 -
Case 3:17-cv-00699-BRM-LHG Document 119 Filed 03/16/18 Page 2 of 3 PageID: 1327

regarding certain facts and allegations included in the consolidated complaint submitted on

December 26, 2017, in the Chaires action, case number 3:17-cv-00699-BRM-LHG, (c) clarifying

when the Court will address the issue of the PBM/insurer joinder that the September 18, 2017,

Opinion, Docket Entry 71, stated would be addressed at a later time, (d) establishing said PBM/

insurer litigation track to be pursued concurrently and in coordination with the ongoing

manufacturer-only litigation (hereafter referred to as the 'manufacturer litigation track'), (e)

enjoining the named plaintiffs in the manufacturer litigation track and counsel from entering into

any restrictive covenant or agreement that could interfere with or limit in any way other cases

pending in this Court, and (f) instructing interim co-lead counsel in the Chaires action to cease

interfering in any manner, directly or indirectly, with any related PBM/insurer cases pending in

this Court; and

PLEASE TAKE FURTHER NOTICE that in support of this motion, Julia Boss shall rely upon

(a) the attached brief filed contemporaneously herewith, (b) letters and their appendices

previously filed by Julia Boss with the Court but not yet entered in the docket, (c) materials in

the public record, (d) all other pleadings and proceedings on file.

Respectfully submitted,

Dated: March 15, 2018 slJulia A. Boss

Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

Pro Se Plaintiff

- Page 2 of2 -
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 1 of 8 PageID: 1329

UNITED STATES DISTRICT COURT

RECEIVED
DISTRICT OF NEW JERSEY MAR 16 2018
AT8:30 M
WILLIAM T. WALSH
CLERK

Civil Action No. 17-699 (BRM)(LHG)

IN RE INSULIN PRICING LITIGATION

PRO SE PLAINTIFF JULIA BOSS'S BRIEF IN SUPPORT OF HER MOTION FOR

RECONSIDERATION OF CONSOLIDATION ORDER PURSUANT TO LOCAL
RULES 7.l(i))

Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

Pro Se Plaintiff
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 2 of 8 PageID: 1330

TABLE OF CONTENT

PRELIMINARY STATEMENT .......................................................................................... 1

FACTUAL BACKGROUND & ARGUMENT.................................................................... 4
CONCLUSION ............................................................. ". ...................................................... 4

- 11 -
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 3 of 8 PageID: 1331

TABLE OF AUTHORITIES

Cases Pages

FSCME v. AdvancePCS, et al., Superior Court of the State of California, case

No. BC292227 (Apt. 4, 2003) 1

In re Express Scripts/Anthem ERISA Litigation, Case Number 1:16-cv-03399-ER 2

In re: National Prescription Opiate Litigation, Case Number 1:17-md-02804-DAP 2, 3

- 111 -
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 4 of 8 PageID: 1332

Pro se plaintiff Julia Boss respectfully submits this brief in support of her Motion for
Reconsideration of Consolidation Order, Docket Entry No. 89.

PRELIMINARY STATEMENT

The central role played by Pharmacy Benefit Managers (PBMs) and third-party payers in
negotiating manufacturer rebates, setting drug prices, controlling access to exclusionary
formularies, and controlling the price their members pay at the point of sale for the drugs they
purchase is now well established. 1 In2004, the central role of rebating (fueled by the increasing
use of exclusionary formularies) and increasing pressure from third-party payers and large
employer plans on PBMs to pass a larger share of the rebates through to third-party payers was
already a matter of public record.2 Co-lead interim counsel is well aware of the central role of
rebating and increasing control of third-party payers and insurers over the rebates paid to PB Ms.
In March 2003, Hagens Berman filed on behalf of insurers and third-party payers "a lawsuit
alleging that the largest PBMs have violated California state law by receiving rebates from
pharmaceutical manufacturers that did not benefit employers and/or consumers but instead
increased PBM profits and overall health care costs. "3

Hagens Berman's insurer litigation campaign, in close coordination with the Prescription
Access Litigation fund, went on to be extremely successful. By 2010, most larger payers had

1 The PB Ms and insurers are harming the health of patients with chronic and rare diseases by limiting

access and charging them retail for drugs they buy at deep discounts." PBMs Must Put Patients First,
Huffington Post, 02/28/2017, available at: https://www.huffingtonpost com/entry/pbms-must-put-patients-
first us 58b60bd8e4b02f3f8le44dcc

2 Docket Entry 109-10, page 6. See also, Docket Entry 109-20, page 8, fn 31 ("A lot of PB Ms don't retain
any of the rebates; others retain a portion in addition to whatever percent of the revenue they will keep as
their administrative fees.")
3Docket Entry 109-10, page 9, citing First Amended Representative Action and Complaint for Violation
of the Unfair Competition Law, AFSCME v. AdvancePCS, et al., Superior Court of the State of
California, case No. BC292227 (Apr. 4, 2003) at 4. A copy of this 2003 complaint is included as an
attachment to my letter dated February 5, 2018 (not entered in the docket).

- 1 ..
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 5 of 8 PageID: 1333

rebate pass-through contracts 4 and PBMs passed inore than 80% of manufacturer rebates to
third-party payers and insurers. The same can't be said for individual consumers. As of March
2018, most large insurers continue to base point-of-sale cost sharing and premium valuation on
\'
I

list prices. For reasons that remain to be explained, leading law firms have not attempted to
address the obvious injury resulting from insurers' misallocation of the rebate amounts they
receive.5

There is, however, a growing consensus that it is currently unrealistic to seek resolution
of a drug-pricing related case without involving all parties, including PB Ms and insurers. 6 In the
massive opioid MDL, in which many of the attorneys involved in the present case are also
involved, a class of plaintiffs comprised of Counties has recently taken the first steps to establish
a PBM litigation track. 7 In the matter currently before this Court, as in the ongoing opiate MDL,
only a PBM/insurer track can provide the injunctive relief the class of consumers with insulin-
dependent diabetes desperately needs today-rebate pass-through in the form of pharmacy point-
of-sale transactions based on the low net prices insurers actually pay.

A PBM/insurer track is not only critical to delivering immediate, tangible relief to the
class. It is also legally sound., PBMs and third-party payers jointly manage the transactions at the
pharmacy point-of-sale. Because RICO does not require that a defendant bear "primary

4In 2012, AFSCME DC 37, a longterm PAL client of Hagens Berman and a plaintiff in Hagens Berman's
copay coupon lawsuits, had a pass-through contract with OptumRx, a defendants in the Boss action.
5 In In re Express Scripts/Anthem ERISA Litigation, Case Number 1: l 6-cv-03399-ER, Keller Rohrback

was offered an opportunity to amend their complaint in order to base their ERISA complaint on Anthem
benefit design, but instead elected "to disclaim any intent to amend the Second Amended Complaint,
-thereby rendering the Court's Order a 'final decision' with the meaning of28 U.S.C. § 1291." (Docket
Number 163, p. 1).
6 See, e.g., Transcript of Proceedings, Docket Number 58 in In re: National Prescription Opiate Litigation,
Case Number 1:17-md-02804-DAP.

1 Letter to Hon. Dan A. Polster from J. Cicala re PBMs, Docket Number 168, in In Re: National
Prescription Opiate Litigation ("PBMs control which opioids are dispensed and reimbursed by Medicare,
Medicaid and private insurers. They possess the data the Court and plaintiffs are seeking - at the NOC
level - regarding whose drugs were dispensed into which community. They have the power to halt the
flow of opioids immediately by adjusting their formularies to prevent ongoing improper opioid
distribution. The nation's three largest PBMs (Express Scripts, OptumRx and Caremark) alone control
pharmacy reimbursement for over 250 million Americans.")

-2-
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 6 of 8 PageID: 1334

responsibility" over an enterprise's operations, the allegations that a PBM participated in and
controlled an insurer's prescription drug benefit program under a PBM Agreement, adequately
plead the "enterprise" RICO element.8 And since third-party payers and insurers control the
allocation of rebates, this enterprise would involve the parties that are directly and proximately
causing plaintiffs' injury.

Interim co-lead counsel can't argue that they were not aware of prose plaintiff's position
regarding the central role played by PBMs and insurers. Charles Fournier and Julia Boss met
with Steve Berman in July 2015 regarding a matter related to type 1 diabetes. In February 201 7,
they refused to join Hagens Berman's lawsuit as potential plaintiffs, and instead retained Keller
Rohrback, specifically to add PBMs and insurers as defendants and pursue ERISA and other
claims arising from insurers' failure to pass manufacturer rebates to individual consumers who
buy insulin. The press releases the Type 1 Diabetes Defense Foundation issued on March 30,
20179 and June 15, 2017,10 as well as numerous correspondence with counsel, including a 32-
page critique of interim co-lead counsel's draft consolidated complaint, and a detailed statement
co-authored by TlDF president Julia Boss and vice president Charles Fournier, sent to the U.S.
Senate HELP Committee 11 were unambiguous.

The time for establishing the PBM/Insurer dual track is now-not tomorrow and certainly
not "180 days after the adjudication of all motions to dismiss" or any other period of time that
may be stipulated in the tolling agreement referred to in interim co-lead counsel's letter dated
January 31, 2018, Docket Entry 96. When lives are literally at stake, interim co-lead counsel's
procedural actions to forestall a concurrent PBM/insurer track are unsconscionable. Judge
Polster's stated goal, in the opiate litigation, "to do something meaningful to abate this crisis and

s See, e.g., Opinion and Order, Docket Number 156, page 40 in In re Express Scripts/Anthem ERISA
Litigation, Case Number 1: l 6-cv-03399-ER.

9 https·//www.tldf.org/news/2017/l 0/25/tldf-files-lawsuit-on-insulin-oyer:pricing

1o https://www.t1df.org/news/201715124/t 1df-files-two-new-lawsuits-on-test-strips-glucagon-overpricing

11 bttps·/fwww t1df.org/news/2017112/15/tJ df-letter-to-us-senate-cost-sharing-crisis

-3-
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 7 of 8 PageID: 1335

to do it in 2018"12 is likewise the only morally defensible approach in the insulin pricing crisis. It
is also the only legally sound one. Courts have frowned upon serial litigation that achieves no
valid purpose. Effective disposition of these related cases, and the urgency of the situation,
demand that all possible litigation tracks, against all defendant classes, be concurrently tried.

FACTUAL BACKGROUND & ARGUMENT

I incorporate by reference the factual background and argument developed in the following
letters filed with the court:

• Letter dated January 26, 2017 [sic], 14 pp., attachments A through R

• Letter dated January 28, 2017 [sic], 2 pp.

• Letter dated February 5, 2017 [sic], 3 pp., attachment A

• Letter dated February 6, 2017 [sic], 5 pp., no attachment

• Letter dated February 11, 2017 [sic], 8 pp., no attachment

• Letter dated March 15, 2018, 3 pp., no attachment.

CONCLUSION

For the foregoing reasons, Pro Se Plaintiff Julia Boss respectfully requests that the
consolidation order, Docket Entry No. 89, be amended (a) to accurately reflect the Type 1
Diabetes Defense Foundation's and Julia Boss's refusal to withdraw the PBM and insurer

12 Transcript of Proceedings, 4, Docket Number 58 in In re: National Prescription Opiate Litigation, Case
Number 1: 17-md-02804-DAP.

-4-
Case 3:17-cv-00699-BRM-LHG Document 119-1 Filed 03/16/18 Page 8 of 8 PageID: 1336

defendants, to withdraw related claims (including ERISA claims) in the Boss action, Case
Number 3:17-cv-01823-BRM-LHG, (b) to accurately reflect the Type 1 Diabetes Defense
Foundation's and Julia Boss's disagreement with interim co-lead counsel regarding certain facts
and allegations included in the consolidated complaint submitted on December 26, 2017, in the
Chaires action, case number 3:17-cv-00699-BRM-LHG, (c) to clarify when the Court will
address the issue of the PBM/insurer joinder that the September 18, 2017, Opinion, Docket Entry
71, stated would be addressed at a later time, (d) to establish said PBM/insuter litigation track to
be pursued concurrently and in coordination with the ongoing manufacturer-only litigation
(hereafter referred to as the 'manufacturer litigation track'), (e) to enjoin the named plaintiffs in
the manufacturer litigation track and counsel from entering into any restrictive covenant or
agreement that could interfere with or limit in any way other cases pending in this Court, and (f)
to instruct interim co-lead counsel in the Chaires action to cease interfering in any manner,
directly or indirectly, with any related PBM/insurer cases pending in this Court.

Respectfully submitted,

s/ Julia A. Boss
Dated: March 15, 2018
Julia A. Boss
3059 Hendricks Hill Drive
Eugene, OR 97403

Pro Se Plaintiff

- 5-