UPDATED: April 4 at 11:45 a.m.
Federal Trade Commission Chair Andrew Ferguson has reversed course on his decision to recuse himself from the agency's legal battle with pharmacy benefit managers.
Ferguson said in a statement posted to X late Thursday that he previously made the choice to step back from the proceedings because he had advised Virginia's attorney general as to whether to file an amicus brief in a class action case against PBMs during his time as the state's solicitor general.
However, at the time there were three commissioners eligible to pursue the case, and his recusal did not hinder proceedings. But after former Chair Lina Khan resigned from the post and President Donald Trump fired the two remaining Democratic commissioners, there are no longer commissioners able to participate. Earlier this week, the FTC issued an order seeking a stay in the case due to the lack of available commissioners.
Ferguson said he consulted with ethics attorneys at the agency, and with their input made the choice to reverse the recusal.
"Federal ethics guidelines are the bedrock of our justice system," Ferguson said.
With his decision to join the case, it's unclear at present what timeline that sets for the proceedings moving forward. If the stay issued earlier this week remains in place, it will be set for 105 days. An evidentiary hearing would then be set for 225 days after the stay lifts.
The Federal Trade Commission is pressing pause on its legal fight with major pharmacy benefit managers.
The agency submitted an order (PDF) this week seeking an administrative stay in the case, as there are currently no sitting commissioners who are able to join the proceedings. The two sitting commissioners, Republicans Andrew Ferguson and Melissa Holyoak, have recused themselves.
The stay will remain in place for at least 105 days, according to the order. The courts also set an evidentiary hearing for 225 days after the stay lifts.
Democratic Commissioners Alvaro Bedoya and Rebecca Kelly Slaughter were fired by President Donald Trump in March, and are currently suing the White House to get their jobs back. Former Chair Lina Khan, who spearheaded the FTC's antitrust efforts under the Biden administration, announced her resignation when Trump took office.
The FTC sued the so-called "Big Three" pharmacy benefit managers in September, alleging that they used anticompetitive practices to artificially inflate the cost of insulin. Each of these firms is vertically integrated with a major national insurer: CVS Caremark is a sister to Aetna under CVS Health; Optum Rx is a subsidiary of UnitedHealth Group; and Express Scripts is part of Cigna's Evernorth unit.
The complaint alleges that these companies push pharmaceutical manufacturers to compete for favorable formulary placement by raising prices, which in turn increases rebates paid to the PBM.
The PBMs hit back with a countersuit in November, arguing that the agency is overstepping in its efforts to reform the industry. The companies instead pointed to Big Pharma as the culprit for rising drug prices.
The lawsuit follows a years-long FTC investigation of the pharmacy benefit management sector that probed pricing practices, the effect of vertical integration and their relationship with group purchasing organizations.
Bedoya's and Slaughter's firings put the case in limbo, though PBM reform has garnered bipartisan support, including backing from President Trump himself.
This is a developing story and will be updated.