Antitrust Law Daily Wrap Up, ANTITRUST—D.N.J.: Most of Centene’s and Humana’s antitrust claims against Merck survive dismissal, (Sep 8, 2025)

By Martin A. Steinberg, J.D.

Centene and Humana allege that Merck orchestrated an anticompetitive scheme through patent misuse and reverse-payment settlements to delay generic entry of its cholesterol drugs, Zetia and Vytorin.

In parallel rulings, the federal court in Newark, New Jersey, partially granted Merck’s motions to dismiss separate suits filed by Humana, Inc., and Centene Corporation, raising antitrust and related claims over its cholesterol-lowering drugs Zetia and Vytorin. Both Centene and Humana alleged that Merck, through Schering and associated entities, engaged in a broad monopolization scheme by misusing patents, manipulating Orange Book listings, and entering into reverse-payment settlements with Glenmark and distribution arrangements with Par to delay generic competition. The complaints contend that these tactics unlawfully extended Merck’s exclusivity, suppressed competition, and led to overcharges for insurers and consumers. While the court dismissed specific theories and state-law claims, it permitted significant antitrust and consumer protection claims to proceed, ensuring continued litigation over whether Merck’s conduct violated state antitrust statutes, federal antitrust law, and consumer protection frameworks (Humana Inc. v. Merck & Co., Inc., No. 2:23-cv-23023-BRM-LDW (D.N.J. Sept. 4, 2025)); (Centene Corp. v. Merck & Co., Inc., No. 2:23-cv-23033-BRM-LDW (D.N.J. Sept. 4, 2025)).

Background. Both Centene and Humana challenge Merck’s conduct surrounding its branded cholesterol-lowering drugs Zetia (ezetimibe) and Vytorin (ezetimibe + simvastatin). They allege that Merck & Co., Inc., along with affiliates Merck Sharp & Dohme LLC (f/k/a Merck Sharp & Dohme Corp.), Schering-Plough Corporation, and Schering Corporation (collectively, “Merck”), engaged in a long-running anticompetitive scheme. This scheme allegedly included patent manipulation and Orange Book abuse by improperly listing patents that allegedly did not cover Zetia or Vytorin, thereby deterring generic challengers. The complaint also alleged that Merck entered into a reverse-payment settlement by entering a 2010 settlement with Glenmark Pharmaceuticals Ltd. and Glenmark Pharmaceuticals Inc. USA to delay generic Zetia until December 2016, while agreeing not to launch Merck’s own authorized generic during Glenmark’s exclusivity. Also, the companies allegedly entered a distribution agreement with Par Pharmaceutical, Inc., a subsidiary of Endo International PLC, which granted Par exclusive distribution rights and a share in profits, allegedly cementing consent to the delayed entry; and (5) filing a series of lawsuits against other ANDA filers, including Mylan Pharmaceuticals Inc., Teva Pharmaceuticals, and Sandoz, that ended in settlements postponing entry until 2017. These tactics allegedly preserved billions in monopoly profits, delayed generic competition, and forced insurers and consumers to pay supracompetitive prices.

Centene case. Centene, a Delaware corporation headquartered in St. Louis, filed suit along with its subsidiaries: WellCare Health Plans, Inc., New York Quality Healthcare Corp. d/b/a Fidelis Care, and Health Net, LLC. Centene and its subsidiaries provide healthcare coverage and assume prescription drug costs for over 15 million insured members nationwide.

The plaintiffs assert the following causes of action: (1) Monopolization in Violation of Various State Antitrust Laws against Merck (Count I); (2) Conspiracy to Restrain Trade/Restraint of Trade in Violation of Various State Antitrust Laws against all Defendants (Count II); (3) Unfair and Deceptive Trade Practices in Violation of Various State Unfair Competition and Consumer Protection Laws against all Defendants (Count III); (4) Monopolistic Scheme in Violation of Various State Antitrust Laws against Merck (Count IV); and (5) Unjust Enrichment Under State Law against all Defendants (Count V).

Humana case. Humana is a Delaware corporation headquartered in Louisville, Kentucky. It filed suit along with Humana Pharmacy, Inc. (HPI), Humana’s mail-order pharmacy subsidiary. In 2022, AmerisourceBergen Drug Corporation (ABDC), a wholesale distributor, assigned to Humana its rights to pursue claims relating to Zetia and Vytorin purchases resold to HPI from 2011 forward. Humana contends that it directly bore hundreds of millions of dollars reimbursed to pharmacies for Zetia, Vytorin, and their generics, as well as its own direct purchases through HPI. This contractual assignment allegedly strengthened Humana’s federal antitrust standing, giving it purchaser-level claims in addition to insurer-level claims.

The Humana plaintiffs asserts the following causes of action: (1) Monopolization in Violation of Various State Antitrust Laws against Merck (Count I); (2) Conspiracy to Restrain Trade/Restraint of Trade in Violation of Various State Antitrust Laws against all Defendants (Count II); (3) Unfair and Deceptive Trade Practices in Violation of Various State Unfair Competition and Consumer Protection Laws against all Defendants (Count III); (4) Monopolistic Scheme in Violation of Various State Antitrust Laws against Merck (Count IV); (5) Unjust Enrichment Under State Law against all Defendants (Count V); (6) Monopolization and Monopolistic Scheme in Violation of Section 2 of the Sherman Antitrust Act, against all Defendants (Count VI); (7) Attempted Monopolization in Violation of Section 2 of the Sherman Antitrust Act, against all Defendants (Count VII); and (8) Conspiracy to Restrain Trade and Restraint of Trade, against all Defendants (Count VIII).

Procedural history. In both cases, the plaintiffs filed their complaints in the District of New Jersey on September 22, 2021. Shortly thereafter, on October 19, 2021, the Judicial Panel on Multidistrict Litigation (JPML) transferred the cases to the Eastern District of Virginia for coordinated pretrial proceedings as part of a broader Zetia/Vytorin MDL that encompassed at least seven related actions. On December 12, 2023, the JPML remanded both cases back to the District of New Jersey following completion of MDL pretrial proceedings.

After remand, the court directed that the Centene and Humana actions should not be consolidated despite their similarities, and instead set separate briefing schedules. On April 29, 2024, Merck moved to dismiss substantial portions of both complaints, targeting Vytorin-related claims, primary liability theories (monopolization and monopolistic scheme), conspiracy claims, and state law counts.

On January 29, 2025, the Centene plaintiffs filed their Second Amended Complaint. On February 21, 2025, the court entered a notice of voluntary dismissal as to all Glenmark Defendants. On January 29, 2025, Humana filed its Third Amended Complaint. On February 21, 2025, the court entered a notice of voluntary dismissal as to all Glenmark Defendants. On April 30, 2025, Merck filed its Partial Motion to Dismiss the monopolization and attempted monopolization claims, all state law claims, and the per se conspiracy claims in each case.

Monopolization claims under federal law. In both opinions, the court held that the plaintiffs had adequately pleaded monopolization claims against Merck, finding the alleged reverse-payment scheme and pattern of patent abuse sufficient to state a plausible violation. However, the court trimmed back certain aspects tied to Vytorin-specific theories, ruling that some allegations did not establish independent monopolization apart from Zetia-related conduct. In both cases, the plaintiffs alleged that Merck unlawfully monopolized the markets for Zetia and Vytorin by engaging in a broad scheme of patent abuse, sham litigation, and reverse-payment settlements designed to delay generic entry and preserve supracompetitive prices.

The core allegations were the same in both suits: Merck allegedly obtained and enforced patents through inequitable conduct before the USPTO, listed invalid or non-covering patents in the FDA’s Orange Book, filed meritless infringement suits to trigger automatic regulatory stays, and entered into the 2010 reverse-payment settlement with Glenmark that delayed Zetia generics until December 2016 while blocking Merck’s own authorized generic. Plaintiffs also cited subsequent settlements with other generic manufacturers (Mylan, Teva, Sandoz) and the distribution agreement with Par as further evidence of a coordinated monopolistic scheme.

Centene’s monopolization claims were brought exclusively under various state antitrust statutes, asserting that Merck’s scheme directly harmed Centene and its subsidiaries as large-scale insurers paying inflated drug costs for millions of members. Humana, on the other hand, asserted under both state antitrust statutes and Section 2 of the Sherman Act, relying on Humana’s 2022 assignment agreement with AmerisourceBergen to establish direct-purchaser standing. Humana thus pursued broader monopolization relief, framing itself not only as an insurer but also as an entity directly injured by paying supracompetitive prices in its own pharmacy operations.

The plaintiffs alleged Merck held monopoly power during the relevant periods, pointing to extremely high market shares (well over 70%), durability of its market position, preserved through patent and litigation tactics, and supracompetitive pricing and delayed generic entry. The court found these allegations sufficient at the pleading stage to establish monopoly power.

For Centene, the court allowed the monopolization claims under state antitrust law to proceed insofar as they were based on Zetia and the overall scheme. Centene, as a third-party insurer covering millions of prescriptions, had plausibly alleged injury from paying inflated drug costs. The court, however, dismissed specific Vytorin-specific theories, reasoning that the plaintiffs had not adequately shown that Vytorin itself was independently protected by anticompetitive conduct, apart from the Zetia-related tactics. While the allegations plausibly showed that Vytorin benefited from the Zetia scheme, it was not the target of a distinct monopolization effort.

For Humana, the court reached the same conclusion on Zetia and Vytorin, but it also addressed federal Sherman Act §2 claims. The judge found Humana had adequately alleged direct-purchaser standing through the AmerisourceBergen assignment agreement, giving it the ability to pursue Sherman Act damages in addition to state-law remedies. The monopolization and monopolistic scheme claims under §2 were allowed to proceed, but limited by the same Vytorin-specific dismissal.

Monopolistic scheme with Schering. The court held that Schering could not be held liable as an ongoing conspirator because its role ended with the merger into Merck, and plaintiffs failed to allege sufficient post-merger conduct to support monopolization or conspiracy claims. While Schering was involved historically in patent prosecution and early litigation, the court found those actions either time-barred or insufficient to sustain ongoing liability in the alleged conspiracy.

State law claims. The court reviewed the state law claims on a state-by-state basis. It pruned claims where statutes were narrower in scope or did not apply to business plaintiffs like insurers. Both Centene and Humana retained a core set of state antitrust, consumer protection, and unjust enrichment claims sufficient to proceed to discovery, tied to overcharges for Zetia and Vytorin. While Humana’s posture as both insurer and direct purchaser strengthened its standing in more states than Centene, the reasoning on state-law limitations was essentially the same.

Centene asserted state antitrust, consumer protection, and unjust enrichment claims on behalf of itself and its subsidiaries. The court dismissed these claims in part, holding that some states’ antitrust laws did not apply extraterritorially to Centene’s alleged injuries or required more specific factual pleading about in-state commerce. However, the court allowed claims under other states’ statutes to proceed, where Centene plausibly alleged overcharges for Zetia and Vytorin that were paid within those states. The court permitted the unjust enrichment claims to survive only to the extent it was tethered to valid underlying state antitrust or consumer protection claims. Where the underlying state claim was dismissed, the unjust enrichment theory fell as well.

Humana advanced nearly identical state-law theories, but with some additional overlap because its complaint also contained federal Sherman Act claims. As with Centene, the court dismissed some state antitrust claims on extraterritoriality and pleading grounds, but permitted others where Humana plausibly alleged in-state injury through its reimbursement payments and pharmacy operations. Again, the unjust enrichment claims survived only to the extent they paralleled valid underlying antitrust or consumer protection theories.

Per se conspiracy to restrain trade theory. Merck argued that the plaintiffs improperly attempted to reassert the per se conspiracy to restrain trade theory, which the court previously rejected. The plaintiffs conceded this fact without conceding the correctness of the ruling. Accordingly, Merck’s motions to dismiss the per se conspiracy to restrain trade claims were granted with prejudice.

The Cases are No. 2:23-cv-23033-BRM-LDW and No. 2:23-cv-23023-BRM-LDW.

Judge: Martinotti, B.

Attorneys: Joshua A. Druck (Gimigliano Mauriello & Maloney, P.A.) for Centene Corp. and Humana Inc. Geoffrey N. Rosamond (McCarter & English, LLP) for Merck & Co. Inc.

Companies: Centene Corp.; Merck & Co. Inc.; Humana Inc.

Cases: Antitrust NewJerseyNews GCNNews