A David versus Goliath story played itself out last week in the U.S. District Court for the District of Alaska where a small, independent pharmacy prevailed over a major U.S. pharmaceutical company following its threat to cut off the pharmacy’s supply of opioids and other prescription drugs. FisherBroyles Health and Pharmacy Law attorney Anthony Calamunci represented “David,” which in this case is actually a pharmacy named “Bernie’s.”

The legal battle arose in May of this year when AmeriSourceBergen Drug Corporation (AmeriSourceBergen) notified Anchorage-based independent pharmacy Bernie’s Pharmacy (Bernie’s) that it was terminating its supply agreement with Bernie’s over “an elevated percentage of opioid purchasing,” specifically, an allegation that 25 – 50 percent of Bernie’s recent prescription drug purchases provided in dosing units were opioids.  Bernie’s disputed those figures, noting that the decision, based off purchase orders, did not truly reflect dispensing information from the pharmacy.

Bernie’s filed suit in federal court, arguing that AmeriSourceBergen’s action violated the terms of its prime vendor agreement with the pharmacy, and noting that no state or federal regulatory agency had taken issue with Bernie’s purchasing practices. The court agreed with Bernie’s and ordered that AmeriSourceBergen continue to supply Bernie’s with drugs until November 30, 2018 (the originally contracted end date of the vendor agreement) or until Bernie’s has secured an alternate source of prescription drugs.

“Bernie’s is very pleased with the District Court’s decision to require AmerisorceBergen to continue providing opioid prescriptions and other controlled medicines to the pharmacy through the term of their agreement,” said Calamunci. “AmerisourceBergen’s decision to halt shipping-controlled medications to Bernie’s was not based on merit.”

AmeriSourceBergen, however, had a different take on the decision.  In a statement issued following the ruling AmeriSourceBergen said:

“The conclusion by the US District Court of Alaska that AmerisourceBergen must ship opioid based products to a pharmacy our systems have flagged is illustrative of the fact that distributors should not be asked to function as law enforcers or regulators. Distributors like AmerisourceBergen walk a legal and ethical tightrope between providing access to necessary medications and preventing diversion of controlled substances. Greater regulatory guidance on how to execute our responsibilities is both welcome and necessary.”

The FisherBroyles Pharmacy and Health Care Law team represents a number of independent pharmacies across the United States and is pleased to keep you updated on events of interest to those in the healthcare and pharmaceutical industries. Questions regarding the Bernie’s Pharmacy decision and issues related to prime vendor agreements may be directed to any of the following attorneys:

Brian Dickerson, FisherBroyles Partner
Brian E. Dickerson
brian.dickerson@fisherbroyles.legal
202.570.0248

Anthony Calamunci, FisherBroyles Partner
Anthony Calamunci
Anthony.calaunci@fisherbroyles.legal
419.376.1776

Nicole Waid, FisherBroyles Partner
Nicole Hughes Waid
nicole.waid@fisherbroyles.legal
202.906.9572

Amy Butler, FisherBroyles Partner
Amy Butler
amy.butler@fisherbroyles.legal
419.340.8466