January 7, 2011—Four states and the District of Columbia have asked the U.S. Supreme Court for permission to argue in person before it on Jan. 19 that safety-net providers have a right to sue drug manufacturers for allegedly charging them more for pharmaceuticals than the 340B drug discount program allows.
The attorneys general of Arizona, Kansas, Missouri, West Virginia and D.C. filed their motion to participate in arguments in the pivotal 340B case, Astra USA Inc. v. County of Santa Clara(Case No. 09-1273), on Dec. 20, the same day they filed a joint friend-of-the-court brief backing the two California counties that have sued nine leading drug companies for what the counties claim is millions of dollars in overcharges.
Three days earlier, the U.S. Solicitor General’s office, which represents the federal government in litigation, sought the High Court’s permission to argue in person on the side of the drug companies that the 340B pricing agreements between the government and manufacturers do not grant safety-net providers the right to sue.
A Symbol of the Stakes
The federal and state governments’ requests to personally argue their positions before the Court are a sign of their strong interest in the case’s outcome. The justices almost always grant such motions by the federal Solicitor General but do so much less often for states. The Court is expected to announce whether the federal and state governments will take part in the arguments when it issues a regularly scheduled list of orders on Jan. 10.
The drug manufacturers next week might also file a final brief responding to points made in the counties’ Dec. 13 filing in the suit.