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United States ex rel. Ven-A-Care of the Florida Keys, Inc. v. Apothecon, Inc.

COURT: United States District Court for the District of Massachusetts

Berger Montague represented the whistleblower, Ven-A-Care of the Florida Keys, Inc., a small pharmacy from Key West, Florida. The case included allegations that Apothecon submitted false and inflated Average Wholesale Prices (“AWPs”) for a number of its oncology and generic drugs. Apothecon knew that the Medicare and Medicaid programs used AWPs for reimbursement of providers. These inflated prices created a “spread” between the reimbursement amount from the government and the actual prices for the drugs in the marketplace and thus an unlawful incentive to providers to choose defendants’ drugs.

In September  2007, the United States settled the case, along with several other cases, against the defendants (alleging kickbacks and off-label marketing). Apothecon and its parent company Bristol Myers Squibb (see companion case against Bristol also brought by Berger Montague) agreed to pay over $515 million in a global settlement to resolve the cases.

In announcing the settlement, an Assistant Attorney General for Massachusetts stated: “The integrity of our health care system rests on physicians being able to make decisions based on the best interests of their patients. This settlement reflects the Justice Department’s strong commitment to holding drug companies accountable for devising and implementing fraudulent marketing and pricing schemes that undermine that decision-making process at the expense of federal health care programs for the poor and elderly.”

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