PHILADELPHIA, July 8, 2021 /PRNewswire/ — How can an arbitration clause be unconscionable and unenforceable? Let me count the ways: Not just one way, not just two or even three, but Eight (8) Different ways!
JLG’s third win in a row against PBMs is the most important. JLG lawyers led by Mark Cuker defeated Optum’s arbitration clause in the California Superior Court for Alameda county. The Honorable Judge W. Smith held Optum’s arbitration clause is unconscionable and unenforceable because:
- The pharmacies did not sign, never saw and were not provided copies of the agreements;
- Optum did not demonstrate the pharmacies waived their right to seek redress in court;
- Disparity in rights, Optum can exercise self-help if it feels wronged, while the pharmacies must go through a costly arbitration;
- Unreasonably limited discovery. Extremely limited discovery with no depositions;
- Preclusion of live testimony;
- Costly arbitration proceedings. Optum imposed costs on the pharmacy greater than the cost of a court proceeding (with three arbitrators costs could exceed $250,000);
- Precluding aggrieved pharmacies from joining up to have their claims tried together; and
- Optum gave itself the right to arbitrarily change the contract and its arbitration clause at will, without notice.
See Platt, LLC, et-al. v. Optum, RX. Case No. RG20074100 (June 22, 2021).
JLG’s win empowers independent pharmacies oppressed by Optum to proceed in court. The Alameda case seeks a jury to rule on Optum’s insupportably low Maximum Allowable Cost (MAC) reimbursements for generic drugs breaching the contract and California’s MAC law.
Lead JLG Attorney Mark Cuker said “PBM’s thrive on secrecy. Destroying their unconscionable arbitration clause is a huge step in ripping away the curtain and exposing their dirty secrets”. Managing Partner Neal Jacobs added, “this win could help save your local pharmacy and should be a lesson to those who rig the system with unconscionable arbitration clauses.”
About JLG:
The Jacobs Law Group (JLG) is an award-winning law firm, peer reviewed with the highest ratings for legal ability and ethics. JLG provides winning business & litigation services and represents nearly 1,000 independent pharmacies nationwide pursuing claims for PBM abuses. JLG seeks to represent those parties (including pharmaceutical companies and governmental units) with claims against the PBM’s.
SOURCE Jacobs Law Group, PC
