Overview
Cohen Milstein represents the Mayor and City Council of Baltimore and other employers, unions and health and welfare funds in a civil antitrust and RICO class action against Biogen Inc. for engaging in an unlawful monopolistic scheme to manipulate and thwart competition for Tecfidera, a prescription drug which is used to treat multiple sclerosis (MS).
Plaintiffs claim that Biogen conspired with certain pharmacy benefit managers (PBMs) to steer purchases away from the generic and toward Biogen’s more expensive branded products through a four-pronged strategy, forcing them to pay higher prices.
Plaintiffs claim that Biogen achieved this scheme by bribing the PBM co-conspirators through kickbacks, thereby allowing it to maintain its monopoly and forcing payors to pay supracompetitive prices for the branded drugs and preventing them from purchasing less expensive generic versions. Ultimately, this scheme robbed the proposed class of billions of dollars in savings that would have otherwise come about through robust generic competition.
Important Rulings
- On January 28, 2026, the court denied Biogen’s motion to dismiss Plaintiffs’ third amended class action complaint, alleging antitrust violations and RICO claims in their entirety. The court found “it significant that absent Biogen’s payments, the PBMs would lack any freestanding profit motive to place generic dimethyl fumarate in the same tier as Tecfidera or Vumerity. This suggests to the court that the arrangement [between Biogen and the PBMs] was an aberration from ordinary industry practice, sustainable only through Biogen’s systematic payments.”
- On June 18, 2025, the court appointed Cohen Milstein to the Executive Leadership Committee.
Case Background
Tecfidera is a blockbuster drug used to treat MS, achieving an average $3.5 billion in U.S. sales annually through 2020. Biogen, the manufacturer of Tecfidera, was able to reap these monopoly profits because it had a patent. But that patent was very weak. Beginning in 2017, numerous generic-drug manufacturers began challenging the validity of the Tecfidera patent through patent litigation. Biogen knew that if it lost those lawsuits, generic versions of Tecfidera would quickly take over 90% or more of the unit sales and would be sold at a fraction of Biogen’s price.
Plaintiffs claim that to forestall competition and the consequent loss of its sales, Biogen crafted a multi-part scheme—conspiring with the country’s largest PBMs, which serve more than 90% of Americans—to impair competition from generic Tecfidera.
Biogen allegedly paid these five PBMs (and others) to manipulate the placement of generic Tecfidera on their formularies (i.e.,the lists that establish for insureds which drugs are covered and set the relevant copayment and coinsurance amounts). Biogen labeled these payments as “rebates” or “fees.” In reality, they were kickbacks.
Putting generic Tecfidera on the same (or worse) formulary tier as branded Tecfidera resulted in insureds paying the same (or higher) copayment for the generic as for the brand. The equal (or higher) copayments for generic Tecfidera made it appear to the insureds that generic Tecfidera cost the same as, or more than, brand Tecfidera. The opposite was true.
Biogen also paid the PBMs to designate generic Tecfidera as a specialty drug, resulting in the products being dispensed only through a small number of “specialty pharmacies,” which were owned and operated by the PBMs, thereby causing generic Tecfidera sales to be substantially depressed.
To minimize the chance that any portion of the market could work unimpaired, Biogen also provided “coupons” that insureds could use to eliminate their copayment or coinsurance when they filled their prescription with branded Tecfidera.
Collectively, these four Biogen tactics affected the purchases of well over 75% of all insureds.
Plaintiffs further claim that this impaired competition gave Biogen the time it needed to switch a large portion of the market from Tecfidera to a “next generation” version of Tecfidera, called Vumerity, which further impaired competition.
Plaintiffs claim that Biogen received expedited FDA approval of Vumerity by proving that it was bioequivalent to Tecfidera and then orchestrated an anticompetitive scheme to get doctors to switch their prescribing from Tecfidera to Vumerity. Biogen did this by falsely marketing it as medically superior to Tecfidera.
Biogen also paid the PBMs to place generic Tecfidera on the same formulary tier as Vumerity, eliminating any financial incentive for doctors or patients to resist the switch from Tecfidera to Vumerity.
Biogen also gave coupons to insureds who bought Vumerity, making Vumerity falsely appear to be less costly than generic Tecfidera. Furthermore, Biogen tied rebates and fees on Tecfidera to the PBMs’ giving better formulary placement of Vumerity. Finally, Biogen reduced the supply of generic Tecfidera, causing a major supplier of generic Tecfidera to exit the market altogether.
Plaintiffs allege that Biogen’s scheme had the intended effect. Pharmacies dispensed a third of the amount of generic Tecfidera than they normally would have and instead dispensed more than five times the amount of branded Tecfidera and Vumerity than they normally would have. Moreover, Biogen’s scheme with PBMs to designate generic Tecfidera as a specialty drug resulted in astronomical prices for 60% or more of the “generic” units.
Plaintiffs claim that, together with its PBM co-conspirators, Biogen unlawfully restrained, suppressed, and eliminated competition in the market for Vumerity, Tecfidera, and their generic equivalents; maintained monopoly and supracompetitive prices for those drug products; and prevented them from purchasing the generic versions of the drugs in a competitive market, robbing them of hundreds of millions, if not billions of dollars in the aggregate.