COLUMBUS, Ohio (Legal Newsline) – Kroger is fighting a class action lawsuit against it over the prices it charges health insurers for generic drugs by arguing Ohio law has no claim for fraud in the way plaintiffs are pursuing.
The national grocery retailer filed a motion to dismiss on April 9 in Columbus federal court against Judy Kirkbride’s lawsuit, which was filed Jan. 5 and alleges Kroger charges insurers for “usual and customary” prices when it should have accounted for lower prices paid through its Rx Savings Club.
The result for patients was inflated copays, the lawsuit alleges. But Kroger says alleged misrepresentations to a third party (the insurance company) that inadvertently harm customers can’t form the basis of a fraud claim in Ohio.
“Further,” attorneys for the company wrote, “to the extent Plaintiff alleges that Kroger ‘concealed the true U&C prices,’ not only does a seller have no duty to a buyer to disclose the alleged ‘true U&C prices,’ but also Plaintiff’s own Complaint establishes that Kroger published on its website both the retail prices and the club prices of Savings Club program drugs.”
Thus, the company “publicly announced” that its retail prices and savings club prices were not the same, the motion argues.
The plaintiff has only shown she was charged an extra $2 on one of her prescriptions because she was not enrolled in the $36-per-year Savings Club, Kroger further says.
“With no injury alleged, all of Plaintiff’s claims must fail,” the motion says.
The complaint says most customers enroll in the Savings Club because the discounts are so attractive, which makes the Savings Club price the actual “usual and customary” price it should report to insurers.
The firms Climaco Wilcox and Bursor & Fisher are pursuing the case.