Lewandowski's amended complaint: what's new

On Monday, Ann Lewandowski filed an amended complaint in her suit against Johnson & Johnson.

What’s new?

Two big things:
1. Another Plaintiff has joined the suit. Robert Gregory is a retiree on the J&J plan, and so will have continued exposure to paying plan premiums.

2. Refined standing argument to reflect the way COBRA works (Lewandowski is a continuance).

If you read my posts regularly, when the case was dismissed for a lack of specificity and redressability, you may remember that I said that the court shouldn’t have dismissed the case on this basis because of the way COBRA premium equivalents are calculated.

I wrote about it here: https://lnkd.in/eVNp5c45

The COBRA status addresses both bases for dismissal.

The claim is not speculative - with COBRA, the premium equivalents is based directly on the cost of claims. If a fiduciary breach resulted in higher claims, it caused a concrete harm in the form of higher COBRA contributions.

The claim is redressable. The court dismissed the original claim on the basis that Lewandowski had hit her MOOP and so the court could not provide any relied, as she would have hit her MOOP without the inflated drug costs as well. That’s incorrect, because the court can provide relief in the form of a return of some portion of COBRA contributions if they find a fiduciary breach.

There’s a long way to go here, but in my non-binding opinion, this should establish standing (and should have initially, because that’s how COBRA works).