Lewandowski v. J&J is two years in. Here is what plan sponsors are getting wrong.

It has been two years since the Lewandowski class action was filed against Johnson & Johnson's pharmacy benefit arrangement. The case is still in early-stage motion practice. But the legal theory — that a plan sponsor breaches its fiduciary duty by failing to monitor the PBM's spread-pricing arrangement — has already reshaped what plaintiff-side counsel believes is actionable.

Most plan sponsors are responding wrong.

The reflex has been to ask the PBM for a 'no spread pricing' attestation letter and treat the matter as resolved. That is the kind of paper trail that satisfies an internal audit but does nothing in discovery. The deposition question is not whether the PBM said the right thing. It is whether the committee, in real time, evaluated the reasonableness of the contract against an outside benchmark.

What survives discovery.

Three artifacts. (1) Quarterly Plan Governance Committee minutes that document a specific review of pharmacy spend against an independently sourced benchmark. (2) An RFP record, ideally net-of-commission, that shows alternatives were considered. (3) A signed Reasonable Compensation memo that ties broker compensation to delivered services and includes an exit clause if those services lapse.

None of these are exotic. They are standard governance documents we draft for clients alongside every renewal. The cost of producing them is a fraction of the cost of not being able to.