Jonathan L. Swichar focuses his practice in the area of commercial litigation and is an active trial lawyer, handling, across the United States, matters involving complex commercial disputes, securities law, shareholder disputes, white-collar criminal defense and investigations, insurance defense, healthcare litigation, healthcare fraud defense and internal corporate investigations. Mr. Swichar regularly counsels international corporations and has been lead counsel in hundreds of disputes in state and federal courts as well as in arbitrations and mediation.
Mr. Swichar is chair of Duane Morris' Pharmacy Litigation Group. He regularly represents healthcare providers in the investigation and defense against healthcare-related offenses in regulatory, civil and criminal proceedings. He also represents numerous healthcare providers, including pharmacies, throughout the United States in disputes with insurance companies and pharmacy benefit managers. Specifically, Mr. Swichar represents such providers in connection with, among other things, violations of non-compete agreements, issues in gaining entry into an insurance network, attempts by insurance companies/pharmacy benefit managers to terminate providers from such networks, reimbursement disputes and refusals by insurance companies/pharmacy benefit managers to abide by state any willing provider laws.
Mr. Swichar's pharmacy experience includes representing multiple retail, mail and specialty pharmacies in negotiating agreements with pharmacy benefit managers for dramatically-improved reimbursement rates for branded and generic drugs, resulting in millions of dollars in additional reimbursement. He has also assisted numerous pharmacies in obtaining network status after being denied and successfully represented pharmacies in overturning decisions by pharmacy benefit managers to terminate them from their networks. He has also represented numerous pharmacies in connection with responding to audits and has successfully challenged audit results. In addition, he has defended numerous pharmacies in connection with investigations by state boards of pharmacy, Attorney General Offices, United States Attorney's Offices and multiple other state and federal government agencies. Mr. Swichar also frequently consults with state and federal legislators in the drafting and proposing of legislation to reign in abuses by pharmacy benefit managers and improve protections afforded to pharmacies.
Mr. Swichar is active in a leadership capacity in several community and civic organizations. Admitted to practice in Pennsylvania and New Jersey, Mr. Swichar is a member of the Pennsylvania and Philadelphia bar associations. Mr. Swichar is a 1997 graduate of Temple University School of Law, where he was a member of the Temple Law Review, and a graduate of the University of Maryland.
Areas of Practice
- Commercial Litigation
- Pharmacy Litigation
- Healthcare Litigation
- Insurance Defense Litigation
- Healthcare Fraud Defense
- White Collar Criminal Defense and Investigations
- Appellate Practice
- Filed an amicus brief on behalf of the National Association of Specialty Pharmacy (NASP) in the United States Supreme Court concerning Rutledge v. the Pharmaceutical Care Management Association (PCMA), arguing that federal law does not preempt states from overseeing pharmacy benefit manager (PBM) practices and regulating reimbursement, and that stripping the states of this regulatory power leaves pharmacies without remedy and threatens critical care to the most vulnerable patients.
- On behalf of a specialty pharmacy, successfully overturned claims rejections for a high-dollar specialty medication allowing the pharmacy to immediately service the affected patients.
- Successfully reinstated pharmacies’ mail delivery privileges with pharmacy benefit manager after receipt of cease and desist letters based upon ambiguities in the pharmacy benefit manager’s contract.
- Represented regional specialty compounding pharmacy in navigating and appropriately responding to multiple state boards of pharmacy investigations.
- Representing state pharmacy cooperative in Federal Trade Commission investigation.
- Successfully overturned notices of termination by pharmacy benefit managers based on common ownership.
- Represented pharmacy in dispute with drug manufacturers over alleged outstanding receivables.
- Represented a pharmacy in defense of DEAs allegation regarding the improper dispensing of schedule II controlled substance drugs.
- Represented a national pharmacy in a dispute with a large diabetes test strips manufacturer over allegations regarding the propriety of test strips purchased and dispensed by the pharmacy.
- Obtained favorable outcome for pharmacy benefit manager client in dispute with state licensing facility concerning its application bid for a third party administrator license.
- Consulted with state attorneys general offices contemplating investigations of pharmacy benefit managers engaging in below-cost reimbursement to independent pharmacies.
- Obtained favorable outcome for multiple pharmacy clients in their applications for mail order network service rights with national pharmacy benefit manager.
- Counsel for AIDS Healthcare Foundation, amicus curiae participant in Tunney Act challenge to CVS Health/Aetna merger, pending before U.S. District Judge Richard J. Leon (D.D.C.); case involved first-ever Tunney Act evidentiary hearing with live witnesses.
- Represented prominent radiologist in successful re-credentialing with two of the largest nation-wide health insurance companies.
- Represented a national oncology pharmacy in negotiating a Pharmacy Benefit Management agreement, which resulted in reimbursement from 19.9% to 16%, representing a savings of millions of dollars annually.
- Representing a specialty pharmacy in eliminating Generic Effective Rate claw-backs from its agreement with the largest national Pharmacy Benefit Manager.
- Represented a large independent pharmacy in successfully overturning their termination by a Pharmacy Benefit Manager that was based upon allegations of improperly dispensing controlled substances.
- Represented a medical practice and its principal physician in a dispute with one of the largest insurance carriers and provider networks in New Jersey in connection with a health insurance reimbursement dispute in excess of $800,000 alleging that the practice falsely represented its physicians as providing services for the carrier’s insureds; the matter was successfully resolved at a 95 percent concession by the carrier.
- Represented one of the world’s leading computer manufacturers in Federal Trade Commission Investigation.
- Outside litigation counsel for a Fortune 200 international company handling hundreds of disputes involving claims of, among other things, breach of contract, fraud, interference with contractual relations, unfair competition and violations of employee non-compete agreements.
- Outside litigation counsel for charter schools involving disputes with local school districts over charter audit and renewal issues.
- Obtained dismissal of a $40 million dollar RICO action on behalf of an attorney alleged to have knowingly engaged in a fraudulent tax shelter scheme.
- Represented Evergreen Elder Care and defeated a motion for summary judgment filed by a secured creditor who sought judgment in the approximate amount of $3.3 million and an order authorizing foreclosure of Evergreen's premises. The court also granted an order removing a receiver the court previously appointed for Evergreen's business.
- Obtained summary judgment for Niscon, Inc. in a products liability action arising from an accident in which an actor fell through a trap door of a bridge on the set of the Broadway production of the musical The Little Mermaid. The court determined that Niscon could not be held strictly liable because there was no evidence that the automation software it provided to allow remote operation of the trap door was defectively designed or malfunctioned. Bailey v. Disney Worldwide Shared Services, et al., Index No. 113072/08 (N.Y. Sup. Ct, N.Y. County Feb. 10, 2010).
- Represent both plaintiffs and defendants in federal and state litigation involving claims arising under the Racketeer Influenced and Corrupt Organizations Act (RICO).
- Obtained a dismissal of a complaint filed in the Supreme Court of the State of New York, New York County, alleging fraud, malpractice, unjust enrichment, illegal fees, and negligence against a former tax partner at an AmLaw 100 law firm. The complaint demanded $140 million, and arose from the implementation of allegedly illegal tax shelters.
- Served as lead counsel for major automobile manufacturer in hundreds of breach of warranty matters in Pennsylvania.
- Assisted in successful representation of hotel owner in a matter brought against major hotel management company asserting claims for breach of management agreement and breach of fiduciary duty.
- Represents individuals and corporations as plaintiffs and defendants in securities fraud cases in federal and state court, as well as in NASD arbitration proceedings.
- Represented several shareholders of closely-held corporations in negotiations over the purchase of the shareholders' interests and in litigation against other shareholders and the corporations involving allegations of minority shareholder oppression, breach of fiduciary duty, fraud and breach of contract.
- Assisted in successful representation of major health maintenance organization in having claims under RICO dismissed which alleged fraud in the solicitation of HMO plan members.
- Represented the President of an information technology staffing firm in criminal prosecution for visa fraud and criminal forfeiture.
- Represent numerous individuals and healthcare providers in the investigation and defense against allegations of fraudulent insurance claims.
- Has conducted a number of internal investigations of publicly held corporations and healthcare providers in the defense and mitigation of federal claims and penalties.
- Assisted in securing the dismissal of federal charges against a Taiwanese national whom the government had declared a fugitive through use of a video teleconference.
- Appellate advocacy: Represented clients in the Third Circuit, the Superior and Supreme Courts of Pennsylvania and the Supreme Court of New Jersey including the case of Commonwealth v. Fischer wherein the Court adopted appellant's argument for a fundamental change in criminal jury instructions.
- Obtained dismissal of charges against an individual charged with theft of trade secrets.
- Obtained dismissal of charges against physicians charged with violating the False Claims Act.
- Represented multiple individuals in sentencing hearings resulting in the criminal courts dramatically departing from sentencing guidelines.
- Obtained on behalf of a pro bono client plenary guardianship over the estate and person of her 21-year-old daughter, who suffers from encephalopathy, spastic quadriplegia, and intellectual disability, in Orphans' Court, Court of Common Pleas, Philadelphia County.
- Represented child seeking Social Security benefits based on disabilities.
- Represent individuals in custody proceedings and guardianship matters.
- Represent pro bono clients in name changes.
- New Jersey
- Supreme Court of New Jersey
- U.S. District Court for the Eastern District of Pennsylvania
- U.S. District Court for the District of New Jersey
- U.S. Court of Appeals for the Third Circuit
- U.S. Court of Appeals for the Fourth Circuit
- Supreme Court of Pennsylvania
- Supreme Court of the United States
- Temple University School of Law, J.D., magna cum laude, 1997
- University of Maryland, B.A., 1994
- Duane Morris LLP
- Partner, 2006-present
- Associate, 1997-2005
Honors and Awards
- Listed by Pennsylvania Rising Stars, 2006-2008 and 2010-2012
Civic and Charitable Activities
- President of the Voorhees Soccer Association
- January 2016-present
- Vice President and Member of Board of Directors of Voorhees Soccer Association
- January 2014-2016
- Gaudenzia, Inc.
- Development Committee, Member of Greater Philadelphia Community Affairs Council, 2003-present
- Co-author, "PBMs Keep ERISA Preemption Fight Alive," Duane Morris Alert, May 18, 2021
- Co-author, "U.S. Supreme Court Hands Down Loss to Pharmacy Benefit Managers," Duane Morris Alert, December 10, 2020
- Co-author, "PBMs Must Say Goodbye to Manufacturer Rebates," Duane Morris Alert, December 7, 2020
- Co-author, "U.S. Pharmacists and Pharmacies Authorized to Order and Administer COVID-19 Diagnostic Tests," Duane Morris Alert, May 27, 2020
- Co-author, "Oklahoma to Begin Enforcing Challenged Patient Right-to-Choose Pharmacy Law," Duane Morris Alert, April 27, 2020
Co-author, "Pennsylvania House to Vote on Pharmacy Benefit Manager Transparency Bills," Duane Morris Alert, June 13, 2019
Co-author, "CMS Final Rule Fails to Implement DIR Fee Reform," Duane Morris Alert, May 20, 2019
Co-author, "States Continue to Review Proposals to Rein in Pharmacy Benefit Managers," Duane Morris Alert, April 24, 2019
Co-author, "OIG Proposal to Restrict Discount Safe Harbor Likely to Disrupt the Prescription Drug Distribution Chain," Duane Morris Alert, February 7, 2019
Co-author, "Supreme Court Holds That Contract Dictates Whether Cases Go to Arbitration," Duane Morris Alert, January 9, 2019
Co-author, "HHS Secretary Suggests Listing Drug Prices in TV Ads Will Curb Consumer Costs," Duane Morris Alert, October 16, 2018
Co-author, "Ohio Cuts PBM Contracts Over Claims They Are Costing Ohioans Millions of Dollars," Duane Morris Alert, August 17, 2018
Co-author, "SEC Begins to Knock Down Wall of Secrecy Between PBMs and Drug Manufacturers," Duane Morris Alert, December 11, 2017
Co-author, "North Dakota Judge Denies Preliminary Injunction to PBMs," Duane Morris Alert, November 20, 2017
- Co-author, "Pharmacy Fights Back Against PBM Termination Notice," America's Pharmacist, November 2017
- Author, "Small Community Pharmacy Hits Walgreens and Prime Therapeutics with $1.5 Billion Antitrust Suit," Duane Morris Alerts, September 26, 2017
- Co-author, "Attorney General Announces Creation of DOJ Opioid Fraud and Abuse Detection Unit," Duane Morris Alert, August 3, 2017
- Co-author, "Are Pharmacy Benefit Managers' Cost-Containment Claims a Shell Game?", The Corporate Counselor, April 2017
- Co-author, "Positioning your organization for a RAC audit," Healthcare Financial Management, January 2011
- Co-author, "Weathering a RAC Audit," Hospitals & Health Networks, December 6, 2010
- "Ready Or Not Pennsylvania Healthcare Providers, The RAC Audits Have Arrived," Association of Corporate Counsel Delaware Valley Chapter (DELVACCA) Newsletter, February 2010
Co-author, "The Attorney/Client Privilege: A Fond Memory of Things Past--An Analysis of the Privilege Following United States v. Anderson," Annals of Health Law, Volume 9, 2000; published as part of a presentation at the PBI Sixth Annual Health Law Institute in 2000.
- Co-author, "Authority of Agent to sue for Principal and Potential Liability of Both Where the Agent Contracts for the Principal," American Bar Association Litigation Section Trial Practice Committee Newsletter, Spring 2004
Co-author, Part I "To Disclose or Not to Disclose - There Should Be No Question," and Part II, "An Effective Voluntary Disclosure Program Needs an Amnesty Provision," The Legal Intelligencer, September 18-19, 2000
Co-author, "Full Amnesty Could Encourage Provider Self-Disclosure," Healthcare Financial Management, July 2000
Co-author, "Attorney/Client Privilege After Anderson," and "Hotlines, Voluntary Self-Disclosure and the Death of Privilege After Anderson," The Legal Intelligence, December 23 and 27, 1999.
Co-author, "The Justice Department Guidelines on the False Claims Act: Overdue Recognition that Sometimes a Mistake is Just a Mistake," Medicare Compliance Perspectives, December 31, 1998; The Legal Intelligencer, January 27, 1999.
- "New Jersey Supreme Court Opens Shopping Center Doors to Increased First Amendment Activity," Temple Law Review, Vol. 69, No. 2, 1996
Co-author, "The Consultant's Guide to Medicare and Medicaid Fraud and Abuse and Compliance Issues."
Selected Speaking Engagements
- Featured Guest, "Recent Regulation and Law Affecting PBMs," American Society for Pharmacy Law Podcast, September 24, 2021
Speaker, "Pharmacy Issues on the PBMs Radar: What Pharmacies Can Do About PBM Contract Terminations," American Society for Pharmacy Law Fall Meeting, November 1, 2018
Speaker, "Managing Relationships with Pharmacy Benefit Managers," National Association of Specialty Pharmacy Annual Conference, Legal Day, September 24, 2018
- Co-Speaker, "Boilerplate Clauses in Contracts: Use at Your Own Risk," Pennsylvania Bar Institute, PBI Conference Center, Mechanicsburg, June 13, 2012
- Co-Speaker, "Boilerplate Clauses in Contracts: Use at Your Own Risk," Pennsylvania Bar Institute, CLE Conference Center, Philadelphia, May 10, 2012
- Co-Presenter, "Appellate Advocacy: Views from the Pennsylvania Superior Court Bench," Pennsylvania Bar Institute Annual Meeting, 1999.