Politics of greed. 😪 

This is a battle of the lower depths.  The real answer to high drug prices is more competition, not shifting profits from Big Pharma to parasitic lawyers.

This is true. It takes lawyers to produce this level of spin!

Michigan's Democrat-controlled Supreme Court heard Attorney General v Eli Lilly and Co (165961) yesterday.  Attorney General Nessel is alleging that Eli Lilly's insulin pricing practices violate the Michigan Consumer Protection Act (MCPA).  A three judge panel of the Michigan Court of Appeals threw out this case, but it appears that the Democrats on the Supreme Court want to reinstate it.  We covered AG Nessel's initiation of this lawsuit two years ago in AG Nessel Seeks Reversal Of Michigan Supreme Court Rulings To Permit Investigation Of Eli Lilly Insulin Pricing:

The Case Summary

The Attorney General seeks to investigate the cost of insulin medications manufactured by the defendant to determine whether the defendant’s pricing practices violate the Michigan Consumer Protection Act (MCPA). To that end, the Attorney General petitioned the Ingham Circuit Court for the issuance of civil investigative subpoenas under MCL 445.907. The Attorney General also filed a complaint seeking a declaratory judgment that the proposed investigation of the defendant’s pricing practices is not barred by the MCPA’s exemption for “transaction[s] or conduct specifically authorized under laws administered by a regulatory board or officer acting under statutory authority of this state or the United States.” MCL 445.904(1)(a). The complaint acknowledged that the Attorney General’s interpretation of the exemption is contrary to the construction given by the Supreme Court in Smith v Globe Life Ins Co, 460 Mich 446 (1999), and Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007). The complaint alleged, however, that those cases were wrongly decided. The defendant moved for summary disposition under MCR 2.116(C)(8) (failure to state a claim), arguing that its transactions and conduct fall within the MCPA’s exemption based on the Smith and Liss decisions. The circuit court granted the motion and dismissed the Attorney General’s complaint. The Attorney General claimed an appeal of right in the Court of Appeals and then filed a bypass application in the Supreme Court. The Supreme Court denied the bypass application but directed the Court of Appeals to expedite its consideration of the case. The Court of Appeals affirmed the trial court in an unpublished opinion, holding that it was bound by Smith and Liss. The Supreme Court has ordered oral argument on the application to address: (1) whether the plaintiff adequately pled a claim that the defendant violated the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq.; (2) whether it is necessary for the plaintiff to adequately plead a violation of the MCPA for a court to determine whether MCL 445.904(1)(a), an exemption to the MCPA, applies; (3) whether this Court’s decisions in Smith v Globe Life Ins Co, 460 Mich 446 (1999), and Liss v Lewiston-Richards, Inc, 478 Mich 203 (2007), correctly interpreted MCL 445.904(1)(a); and (4) if they were incorrectly decided, whether they should nonetheless be retained under principles of stare decisis, Robinson v City of Detroit, 462 Mich 439, 463-468 (2000).

The Court of Appeals Dismissal:

https://www.courts.michigan.gov/49085a/siteassets/case-documents/briefs/msc/2023-2024/165961/165961_76_coa-opinion.pdf

The story from Michigan Advance:

https://michiganadvance.com/2025/11/05/michigan-supreme-court-hears-argument-in-nessel-price-gouging-lawsuit-against-insulin-drug-maker/

Michigan Supreme Court hears argument in Nessel price gouging lawsuit against insulin drug maker
By Ben Solis - November 5, 2025

Attorney General Dana Nessel’s ability to go after a major producer of insulin for price gouging was before the Michigan Supreme Court on Wednesday, with the state saying that it should be allowed to move forward in the matter despite previous court precedent noting otherwise.

Meanwhile, the attorney for the defendant in Attorney General v. Eli Lilly and Company said the attorney general’s office has failed to show an actual controversy exists and that this was an improper test case for the bounds of Michigan’s Consumer Protection Act.

The case centers around Nessel’s attempts to investigate the drug manufacturer to determine if its pricing practices for insulin violated the Michigan Consumer Protection Act. She asked the Ingham Circuit Court for subpoenas to gather information, and also filed a separate request for a judge to declare that her investigation wasn’t blocked by the act’s exemptions for activities already approved by government or regulatory agencies.

That motion noted that Nessel’s interpretation of the act was out of step with the Michigan Supreme Court’s decisions in Smith v. Globe Life Insurance Company and Liss v. Lewiston-Richards Inc. Nessel has asserted that both of those cases were wrongly decided.

The appellate court affirmed the circuit court’s decision to dismiss the case in an unpublished opinion, which means the opinion was not binding on the lower courts or necessarily instructive to the Michigan Supreme Court.

In court on Wednesday, Assistant Attorney General Darrin Fowler reupped those arguments, and asked the justices of the high court to reconsider its previous findings in those cases, as well as for a determination if the case can be ferreted out in state court using the consumer protection act.

A key part of that is showing the court that there has been an adversarial relationship between the two parties and that it was a dispute for the court to take up.

“Here, the Attorney General was not required to bring an investigative petition to launch an insulin investigation into Eli Lilly,” Fowler said. “What the attorney general was required to do under the declaratory judgment rule was to give evidence of a sincere intention to invoke the consumer protection act against Lilly in a way that would be adversarial and would implicate the section for exemption”

Fowler added that the office has spent nearly four years arguing about the Smith and Liss issues from the circuit court up to the Court of Appeals, and now before the state’s high court.

The bigger picture, Fowler said, was that the company is misconstruing the act and its requirement to show probable cause that a method or practice in pricing was unlawful.

Eli Lilly has said that the attorney general’s office engaged in a poor read of the act, an assertion that led the lower court to dismiss the case.

John O’Quinn, attorney for Eli Lilly, told the court that Smith and Liss were long-held precedent in consumer protection matters, and the Legislature has amended the act several times over. O’Quinn said that formed a “powerful chain” to show the high court, now, that the previous court’s decisions in those cases were correct.

“The Attorney General puts the cart before the horse in asking this court to decide the contours of an exemption, in the department’s words, an ‘affirmative defense’ as a threshold matter where the department has declined to show any legally viable violation has been alleged in the first place,” O’Quinn said. .

The case being mired in procedural intricacies led the justices to ask mostly technical questions about other cases that could or should be overturned and different ways those decisions might have been attacked by the attorney general, instead of insisting it could move forward under the consumer protection act.

But Chief Justice Megan Cavanagh pointedly asked Fowler if the manufacturer could have appealed the lower court’s finding of probable cause, which led to the issue of subpoenas.

Fowler said that under the act, Eli Lilly had to start with a motion to quash, but the company opted not to do that. The company, instead, brought a motion to stay the case in the circuit court, which was a different argument than what was before the court on Wednesday.

Overall, Fowler said the state believed that the initial petition jump started the controversy, showing there was a tangible legal dispute for the court to parse.

Nessel, Singh react to court hearing

Following the hearing, Nessel, in a statement, doubled down on her office’s assertion that the decisions preclude state investigations into suspected illegal business practices when that business sells products or services authorized for sale under state or federal law. The attorney general’s office said that was irrespective of whether there was an allegation on how that business conducted its affairs.

“Eli Lilly has relied on these past Supreme Court decisions that twist a narrow exemption into something far too broad,” Nessel said. “The Michigan Consumer Protection Act is supposed to protect consumers, but instead it often shields many corporations from any real accountability, even when their business practices are clearly egregious. People in Michigan expect this law to have their back, and it is my hope that the Court sides with the consumers who have been hurt by deceptive practices.”

State Sen. Sam Singh (D-East Lansing), the Senate’s majority floor leader, said in a statement that Michigan has had “worst-in-the-nation consumer protection laws” for too long, which have “left residents across the state vulnerable to exploitation and fraudulent business practices – in this case, drug manufacturers profiting off of people’s pain.”

“While it’s my hope that the outcome of this case sets the dial in the right direction, we must also change the laws on our books to prioritize protections for consumers over corporations,” Singh said. “By restoring power to the Michigan Consumer Protection Act and giving more tools to the Attorney General’s office to hold bad actors accountable, my legislation would give Michiganders the peace of mind they deserve as they go about their day-to-day activities and purchases.”

Singh introduced Senate Bill 134 to help bolster Michigan’s consumer protection statute, which was passed by the Senate in June.

The bill now sits in the House Judiciary Committee and has not yet had a hearing.