Dive Brief:
Andrew Ferguson, the chair of the Federal Trade Commission, has decided to rejoin the agency’s lawsuit against major pharmacy benefit managers, allowing the case to move forward and resuscitating a major challenge to the drug middlemen.
The FTC paused the litigation against CVS’ Caremark, Cigna’s Express Scripts and UnitedHealth’s Optum Rx on Tuesday, saying it didn’t have enough commissioners to try the case after President Donald Trump fired two Democrats last month.
Ferguson and the other Republican commissioner, Melissa Holyoak, were both recused from the case. But “I have decided to no longer recuse myself from the matter to ensure that the case can continue,” Ferguson said in a post on social media site X on Thursday.
Dive Insight:
Ferguson originally recused himself from the litigation because he advised Virginia on whether to file a friend-of-the-court brief in a lawsuit against PBMs when he was solicitor general of the state, according to his post.
At the time, his recusal had no impact on whether or not the case could proceed.
That changed in March, when Trump fired FTC commissioners Alvaro Bedoya and Rebecca Slaughter in a move the Democrats have slammed as illegal and are contesting in court. Because there were no sitting commissioners available to try the case, the FTC’s general counsel elected to pause it.
Ferguson’s decision to return to the case now allows it to move forward. It’s a negative development for PBMs, which would have benefited from a break in the litigation, according to analysts.
The FTC filed the in-house proceeding against Caremark, Express Scripts and Optum Rx — the so-called “Big Three” PBMs, which jointly control around 80% of the U.S. prescription drug market — in September. It accuses the companies of artificially driving up the price of insulin through their negotiating practices with drugmakers. All three PBMs deny the accusations.
The FTC did not respond to questions on how Ferguson’s decision, which was made in consultation with ethics lawyers, will affect the timing of the case.
The FTC’s previous stay would see an evidentiary hearing at the earliest in February 2026.
