Justia Antitrust & Trade Regulation Opinion Summaries

The FDA approved Depakote for treating seizures, migraine headaches, and conditions associated with bipolar disorder. Physicians may prescribe it for other "off-label" uses, but a drug’s manufacturer can promote it only as suitable for uses the FDA has found safe and effective. Abbott, which makes Depakote, encouraged intermediaries to promote Depakote’s off-label uses for ADHD, schizophrenia, and dementia, hiding its own involvement. Abbott pleaded guilty to unlawful promotion and paid $1.6 billion to resolve the criminal case and False Claims Act suits, 31 U.S.C. 3729–33. Welfare-benefit plans that paid for Depakote’s off-label uses sought treble damages under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1964, for a class comprising all third-party payors. Following a remand, the court dismissed the suit on the ground that the plaintiffs could not show proximate causation, a RICO requirement. The Seventh Circuit affirmed, reasoning that the Payors are not the most directly, injured parties. Patients suffer if they take Depakote when it is useless and may be harmful and costly. Physicians also may lose, though less directly. Because some off-label uses of Depakote may be beneficial to patients, it is hard to treat all off-label prescriptions as injurious to the Payors; if they did not pay for Depakote they would have paid for some other drug. In addition, some physicians were apt to write off-label prescriptions whether or not Abbott promoted such uses. Calculation of damages would require determining the volume of off-label prescriptions that would have occurred absent Abbott’s unlawful activity. View "Sidney Hillman Health Center of Rochester v. Abbott Laboratories, Inc." on Justia Law

Cox Cable subscribers cannot access premium cable services unless they also rent a set-top box from Cox. A class of plaintiffs in Oklahoma City sued Cox under antitrust laws, alleging Cox had illegally tied cable services to set-top-box rentals in violation of section 1 of the Sherman Act, which prohibits illegal restraints of trade. Though a jury found that Plaintiffs had proved the necessary elements to establish a tying arrangement, the district court disagreed. In granting Cox’s Fed. R. Civ. P. 50(b) motion, the court determined that Plaintiffs had offered insufficient evidence for a jury to find that Cox’s tying arrangement "foreclosed a substantial volume of commerce in Oklahoma City to other sellers or potential sellers of set-top boxes in the market for set- top boxes." After careful consideration, the Tenth Circuit ultimately agreed with the district court and affirmed. View "Healy v. Cox Communications" on Justia Law

Direct purchasers of Wellbutrin XL, a drug for treating depression, sued, alleging that GSK violated the Sherman Antitrust Act by entering into an unlawful conspiracy with Biovail, GSK’s partner in the development of Wellbutrin XL, to delay the launch of generic versions of the drug. Indirect-purchasers asserted similar theories under state law. The purchasers claim that GSK delayed the launch of generic versions by supporting baseless patent infringement suits and a baseless FDA Citizen Petition aimed at generic drug companies and by entering into an unlawful reverse payment settlement agreement with potential competitors. The district court granted GSK summary judgment, finding insufficient evidence that GSK’s patent litigation was a sham or that the settlement delayed the launch of generic Wellbutrin XL. The court granted GSK’s Daubert motion to exclude the testimony of the purchasers’ economic expert; decertified the indirect-purchaser class for lack of ascertainability; dismissed the indirect-purchaser claims brought under the laws of states that were not the home of a named class representative; and denied Aetna’s motion to intervene. The Third Circuit affirmed. After considering the Supreme Court’s 2013 decision, FTC v. Actavis, the court concluded that the purchasers failed to establish a genuine dispute of fact either as to whether GSK engaged in sham litigation or whether GSK’s actions delayed the launch of generic Wellbutrin XL. View "In re: Wellbutrin XL Antitrust Litigation" on Justia Law

The district court certified eight classes, consisting of persons in Illinois and Missouri who take eye drops manufactured by six pharmaceutical companies for treatment of glaucoma. Plaintiffs claimed that the defendants’ eye drops are unnecessarily large and wasteful, in violation of the Illinois Consumer Fraud Act, 815 ILCS 505/1, and the Missouri Merchandising Practices Act, Mo. Rev. Stat. 407.010, so that the price of the eye drops is excessive and that the large eye drops have a higher risk of side effects. There was no claim that members of the class have experienced side effects or have been harmed because they ran out of them early. The Seventh Circuit vacated with instructions to dismiss. The court noted possible legitimate reasons for large drops, the absence of any misrepresentation or collusion, and that defendants’ large eye drops have been approved by the FDA for safety and efficacy. “You cannot sue a company and argue only ‘it could do better by us,’” nor can one bring a suit in federal court without pleading that one has been injured. The plaintiffs allege only “disappointment.” View "Eike v. Allergan, Inc." on Justia Law

Plaintiffs, retail grocers, filed putative class actions against two large full-line wholesale grocers, alleging that the wholesalers' contract to exchange retailer supply agreements constituted market allocation in violation of the Sherman Act, 15 U.S.C. 1. Plaintiffs formed the Midwest Class and the New England Class, each class having an Arbitration Subclass of retailers who had arbitration agreements with their current (post-swap) wholesaler. The district court dismissed the purported representatives of the Arbitration Subclasses and the court reversed. At that point, the district court had rejected the proposed Midwest and New England classes and granted defendants' motion for summary judgment. The court reversed, ordering the district court to consider a narrower Midwest class. On remand, Colella moved to intervene to join Village Market, the New England Arbitration Subclass representative, in seeking to certify a narrower New England class. The district court denied the motion and announced that it would not consider any new class of New England plaintiffs. The court concluded that it does not have discretion to hear Village Market's appeal under Rule 23(f). The court explained that an order that leaves class-action status unchanged from what was determined by a prior order was not an order granting or denying class action certification. The court also concluded that the district court did not abuse its discretion by denying Colella's motion to intervene as time-barred. Accordingly, the court affirmed the judgment. View "Colella's Super Market, Inc. v. SuperValu, Inc." on Justia Law

Plaintiffs, retail grocers, filed putative class actions against two large full-line wholesale grocers, alleging that the wholesalers' contract to exchange retailer supply agreements constituted market allocation in violation of the Sherman Act, 15 U.S.C. 1. Plaintiffs formed the Midwest Class and the New England Class, each class having an Arbitration Subclass of retailers who had arbitration agreements with their current (post-swap) wholesaler. Each Arbitration Subclass filed suit against only its previous wholesaler, with which it no longer had a current arbitration agreement. The district court dismissed the Arbitration Subclasses from the case. On remand, the district court rejected the wholesalers' alternate successors-in-interest theory and the wholesaler's third alternate theory that they could directly enforce their previous arbitration agreements because some of the conduct at issue occurred when the previous agreements were still in effect. The court concluded that the district court did not err by rejecting the successors-in-interest theory where the court was not aware of any authority supporting the proposition that a predecessor-in-interest bears a sufficiently close relationship to a successor-in-interest such that the predecessor-in-interest can compel arbitration under an agreement to which only the successor-in-interest is a signatory. The court rejected the direct enforcement argument, concluding that wholesalers may not directly enforce the arbitration agreements to which they are no longer signatories. Accordingly, the court affirmed the judgment. View "Millennium Operations v. SuperValu" on Justia Law

CACH, LLC filed a complaint against William Echols alleging that Echols breached his contract with a bank when he defaulted on his obligation to pay for charges incurred on a credit card and that, as current owner of the account, CACH was entitled to payment of the balance due on the credit card. Echols filed a class action counterclaim alleging that CACH violated the Arkansas Deceptive Trade Practices Act and the common law when it demanded payment from and filed suit against Echols and other Arkansas residents. The circuit court entered an order granting class certification. The Supreme Court affirmed, holding that the circuit court did not err in granting class certification. View "CACH, LLC v. Echols" on Justia Law

Eaton manufactures truck transmissions for sale to Original Equipment Manufacturers (OEMs), which offer “data books,” listing the options for truck parts. Customer choose among the options; the OEM sources the parts from the manufacturers and uses them to build custom trucks then sold to that customer. Eaton was a near-monopolist in supplying Class 8 truck transmissions. In 1989, ZF emerged as a competitor. Eaton allegedly sought to retain its market share by entering agreements with the OEMs, with increasingly large rebates on Eaton transmissions based on the percentage of transmissions a given OEM purchased from Eaton as opposed to ZF. ZF closed in 2003. In 2006, ZF successfully sued Eaton for antitrust violations. Separately, indirect purchasers who bought trucks from OEMs’ immediate customers brought a class action; that case was dismissed. In this case, Tauro attempt to represent direct purchasers in an antitrust suit was rejected because Tauro never directly purchased a Class 8 truck from the OEMs, but rather purchased trucks from R&R, a direct customer that expressly assigned Tauro its direct purchaser antitrust claims. The Third Circuit reversed. An antitrust claim assignment need not be supported by bargained-for consideration in order to confer direct purchaser standing on an indirect purchaser; it need only be express. That requirement was met. The presumption that a motion to intervene by a proposed class representative is timely if filed before the class opt-out date applies in this pre-certification context. View "Wallach v. Eaton Corp" on Justia Law

Plaintiffs Andrew Alwert and Stanley Feldman brought putative class actions against Cox Communications, Inc. (Cox) claiming that Cox violated antitrust law by tying its premium cable service to rental of a set-top box. The district court granted Cox’s motions to compel arbitration, then certified the orders compelling arbitration for interlocutory appeal. The Tenth Circuit granted Plaintiffs permission to appeal. They argued that the arbitration order was improper because: (1) the dispute was not within the scope of the arbitration agreement; (2) Cox waived its right to invoke arbitration; and (3) Cox’s promise to arbitrate was illusory, so the arbitration agreement was unenforceable. Finding no reversible error, the Tenth Circuit affirmed, holding that the arbitration clause in Plaintiffs’ subscriber agreements with Cox covered the underlying litigation and that Cox did not waive its right to arbitration. The Court did not resolve Plaintiffs’ argument that Cox’s promises were illusory because the argument amounted to a challenge to the contract as a whole, which was a question to be decided in arbitration. View "Alwert v. Cox Enterprises" on Justia Law

The plaintiffs (purchasers of containerboard) filed suit under the Sherman Act, 15 U.S.C. 1, alleging that the defendants (producers and sellers of containerboard) agreed “to restrict the supply of containerboard by cutting capacity, slowing back production, taking downtime, idling plants, and tightly restricting inventory,” which led to an increase in the price of containerboard. The court certified a class under FRCP 23: All persons that purchased Containerboard Products directly from any of the Defendants or their subsidiaries or affiliates for use or delivery in the United States from at least as early as February 15, 2004 through November 8, 2010. The proposed definition carved out the defendants themselves, entities or personnel related to them, and governmental entities. The Seventh Circuit affirmed after examining: whether common questions predominate; whether antitrust injury can be proved using a common method; whether the amount of damages can be proved using a common method; and whether a class action is superior. The court noted that no defendant challenged the Purchasers’ experts and there were few factual disputes. A “smattering” of individual contract defenses did not undermine the superiority of the (b)(3) class action. View "Kleen Prods. LLC v. Int'l Paper Co." on Justia Law