Government’s Opposition to Motion to Intervene - Eli Lilly v. Cochran (March 9, 2021)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ELI LILLY AND COMPANY, and
LILLY USA, LLC
                         Plaintiffs,
v.
                                                                                     No. 1:21-cv-81-SEB-MJD

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,
                         Defendants.

DEFENDANTS’ OPPOSITION TO MOTION TO INTERVENE

Proposed intervenors in this case already have tried—and failed—to litigate the legality of Plaintiff Eli Lilly (“Lilly”) and other drug manufacturers’ unilaterally imposed restrictions on 340B drug discounts in another federal district court. Proposed intervenors neglect to tell this Court that every one of the associations seeking to intervene here (hereinafter collectively “Covered Entities”) was a plaintiff in a suit, dismissed less than a month ago, that sought unsuccessfully to commandeer Defendants’ (“HHS’s”) enforcement of the 340B statute against Lilly and other pharmaceutical companies. Ignoring that court’s straightforward holding that the legality of Lilly and its peers’ recent restrictions must be decided, in the first instance, in HHS’s ADR process (not in federal court), the Covered Entities now seek a second bite at the apple by intervening in this suit to again press their interpretation of the statute. But the Covered Entities are no more entitled to litigate the proper interpretation of the 340B statute in this suit than in the one that was just dismissed, and intervention should be denied for several reasons.