Justia Antitrust & Trade Regulation Opinion SummariesArticles Posted in Drugs & Biotech
State v. Bristol-Myers Squibb Co.
The Supreme Court affirmed in part, reversed in part and vacated in part the judgment of the circuit court holding that Bristol-Myers Squibb and Sanofi had violated Hawai'i's Unfair or Deceptive Acts or Practices law (UDAP) by misleading the public about the safety and efficacy of their anitplatelet drug, Plavix, holding that remand was required.The circuit court concluded that Defendants misled Hawai'i consumers by failing to warn them that Plavix was less effective for poor responders, granted the State's motion for partial summary judgment, and imposed an $834 million penalty. The Supreme Court (1) reversed the circuit court's deceptive acts or practices holding, holding that the summary judgment ruling circumscribed Defendants' ability to present a full defense and affected the penalty award, requiring a new trial; (2) affirmed the holding that Defendants committed unfair acts under UDAP; and (3) held that Defendants' procedural arguments failed. View "State v. Bristol-Myers Squibb Co." on Justia Law
Sanofi-Aventis U.S. v. Mylan, et al.
Plaintiff Sanofi-Aventis U.S., LLC (“Sanofi”) sued Defendants Mylan, Inc. and Mylan Specialty, LP (collectively “Mylan”) under Section 2 of the Sherman Antitrust Act. Sanofi, one of the world’s largest pharmaceutical companies, alleged Mylan, the distributor of EpiPen, monopolized the epinephrine auto-injector market effectively and illegally foreclosing Auvi-Q, Sanofi’s innovative epinephrine auto-injector, from the market. The parties cross-moved for summary judgment. The district court, holding no triable issue of exclusionary conduct, granted Mylan’s motion for summary judgment. After careful consideration, the Tenth Circuit agreed and affirmed the district court. View "Sanofi-Aventis U.S. v. Mylan, et al." on Justia Law
California v. Johnson & Johnson
Johnson & Johnson, Ethicon, Inc., and Ethicon US, LLC (collectively, Ethicon) appealed after a trial court levied nearly $344 million in civil penalties against Ethicon for willfully circulating misleading medical device instructions and marketing communications that misstated, minimized, and/or omitted the health risks of Ethicon’s surgically-implantable transvaginal pelvic mesh products. The court found Ethicon committed 153,351 violations of the Unfair Competition Law (UCL), and 121,844 violations of the False Advertising Law (FAL). The court imposed a $1,250 civil penalty for each violation. The Court of Appeal concluded the trial court erred in just one respect: in addition to penalizing Ethicon for its medical device instructions and printed marketing communications, the court penalized Ethicon for its oral marketing communications, specifically, for deceptive statements Ethicon purportedly made during one-on-one conversations with doctors, at Ethicon-sponsored lunch events, and at health fair events. However, there was no evidence of what Ethicon’s employees and agents actually said in any of these oral marketing communications. Therefore, the Court of Appeal concluded substantial evidence did not support the trial court’s factual finding that Ethicon’s oral marketing communications were likely to deceive doctors. Judgment was amended to strike the nearly $42 million in civil penalties that were imposed for these communications. View "California v. Johnson & Johnson" on Justia Law
In re: Rotavirus Vaccines Antitrust Litigation v.
Under "loyalty contracts," Physician Buying Groups (PBGs) members are entitled to discounts if they buy a large enough percentage of their vaccines from Merck. The loyalty contracts include an arbitration provision. Membership contracts between PBGs and medical practices give medical practices discounts on Merck vaccines for enrolling in PBGs. PBGs contract with both Merck and medical practices and are middlemen but PBGs never possess the vaccines. Medical practices buy their vaccines directly from Merck, receiving discounts for belonging to a PBG. The Pediatricians, members of PBGs that contracted with Merck, never signed contracts containing an arbitration clause.The Pediatricians filed federal suits alleging Merck’s vaccine bundling program was anticompetitive. Merck moved to compel arbitration. On remand, following discovery, the district court again denied Merck’s motion and granted the Pediatricians summary judgment, reasoning that the Pediatricians were not bound under an agency theory. The Third Circuit reversed. The PBG membership contract made the PBG a “non-exclusive agent to arrange for the purchase of goods and services,” and the PBG acted on this authority by executing the loyalty contract with Merck that included the arbitration clause. The Pediatricians simultaneously demonstrated intent to create an agency relationship and exercised control over the scope of the PBG’s agency by contract. View "In re: Rotavirus Vaccines Antitrust Litigation v." on Justia Law
Nevada Independent v. Whitley
The Supreme Court held that the federal Defend Trade Secrets Act (DTSA) prohibits disclosure, under the Nevada Public Records Act (NPRA), of documents from pharmaceutical companies and pharmacy benefit managers collected under S.B. 539.The Nevada Independent (TNI) filed a petition with the district court seeking an order directing the Department of Health and Human Services (DHHS) to release the documents at issue. The district court concluded that the documents were not subject to disclosure under the NPRA because the information contained in them comprised trade secrets protected under the DTSA. The Supreme Court affirmed, holding (1) because the DTSA classifies the requested documents, obtained pursuant to S.B. 539, as confidential trade secrets, the documents were exempt from disclosure under the NPRA; and (2) TNI's remaining allegations of error were without merit. View "Nevada Independent v. Whitley" on Justia Law
Neurelis, Inc. v. Aquestive Therapeutics, Inc.
Neurelis, Inc. (Neurelis) and Aquestive Therapeutics, Inc. (Aquestive) were pharmaceutical companies developing their own respective means to administer diazepam, a drug used to treat acute repetitive seizures (ARS). Neurelis was further along in the development process than Aquestive. According to Neurelis, Aquestive engaged in a “multi-year, anticompetitive campaign to derail the Food and Drug Administration” (FDA) from approving Neurelis’s new drug. Based on Aquestive’s alleged conduct, Neurelis sued Aquestive for defamation, malicious prosecution, and violation of the unfair competition law. In response, Aquestive brought a special motion to strike the complaint under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. The superior court granted in part and denied in part Aquestive’s motion, finding that the defamation cause of action could not withstand the anti-SLAPP challenge. However, the court denied the motion as to Neurelis’s other two causes of action. Aquestive appealed, contending the court erred by failing to strike the malicious prosecution action as well as the claim for a violation of the UCL. Neurelis, in turn, cross-appealed, maintaining that the conduct giving rise to its defamation cause of action was not protected under the anti- SLAPP statute. The Court of Appeal agreed that at least some of the conduct giving rise to the defamation action was covered by the commercial speech exception and not subject to the anti-SLAPP statute. Accordingly, the Court held the superior court erred in granting the anti-SLAPP motion as to the defamation action. Some of this same conduct also gave rise to the UCL claim and was not subject to the anti-SLAPP statute too. However, the Court noted that Neurelis based part of two of its causes of action on Aquestive’s petitioning activity. That activity was protected conduct under the anti-SLAPP statute, and Neurelis did not show a likelihood to prevail on the merits. Thus, allegations relating to this petitioning conduct had to be struck. Finally, the Court found Neurelis did not show a probability of success on the merits regarding its malicious prosecution claim. As such, the Court held that claim should have been struck under the anti-SLAPP statute. View "Neurelis, Inc. v. Aquestive Therapeutics, Inc." on Justia Law
United Food & Commercial Workers Local 1776 v. Takeda Pharmaceutical Co.
Defendants in these tandem cases (collectively, "Takeda") are a brand pharmaceutical manufacturer and related entities that began producing and marketing the Type-2 diabetes drug ACTOS in 1999. Purchasers of ACTOS filed suit against Takeda for improperly describing its patents to the FDA, in effect extending the duration of its patent protection over ACTOS and delaying generic competition. The district court denied Takeda's motion to dismiss, concluding that the alleged patent descriptions were incorrect under the Hatch–Waxman Act and pertinent regulations.On this interlocutory appeal, the Second Circuit held that under the "Listing Requirement" of 21 U.S.C. 355(b)(1), a combination patent does not "claim" any of its component drug substances past their individual patent expiration dates. The court also held that the purchasers were not required to allege that Takeda's interpretation of the Listing Requirement was unreasonable in order to plead a monopolization claim under the Sherman Act. Accordingly, the court affirmed the district court's denial of Takeda's motion to dismiss and remanded for further proceedings. View "United Food & Commercial Workers Local 1776 v. Takeda Pharmaceutical Co." on Justia Law
Mayor and City Council of Baltimore v. Actelion Pharmaceuticals Ltd.
Plaintiffs filed an antitrust class action against Actelion, alleging that Actelion extended its patent monopoly for its branded drug Tracleer — a drug to treat pulmonary artery hypertension — beyond the patent's expiration date. Plaintiffs claimed that Actelion did so "through illegitimate means" with the intent of precluding competition from generic drug manufacturers and charging supracompetitive prices for Tracleer, in violation of federal and state antitrust laws. Plaintiffs further claimed that, as a result of Actelion's illegal monopolization, they were injured by having to pay supracompetitive prices for Tracleer for some three years after Actelion's patent for Tracleer expired.The Fourth Circuit vacated the district court's limitations ruling and concluded that plaintiffs' antitrust claims did not accrue until they were injured by paying supracompetitive prices for Tracleer after the patent expired in November 2015. Therefore, plaintiffs action commenced in November 2018 was timely. The court also concluded that, even if the February 2014 date, when Actelion entered into agreements settling the generic manufacturers' antitrust claims, marked the last anticompetitive act, damages could not then have been recovered by plaintiffs because their claims would not have been ripe for judicial resolution in view of the speculative nature of future conduct that might have thereafter occurred. Therefore, limitations would not begin to run until the claims became ripe. In any event, the court explained that because plaintiffs alleged that Actelion continued with anticompetitive acts after November 2015 in selling Tracleer at supracompetitive prices, new limitations periods began to run from each sale that caused plaintiffs damages. The court largely agreed with the district court's standing, but concluded that the allegations asserting violations of the laws in states where plaintiffs did not purchase Tracleer may yet be considered when determining whether plaintiffs can, based on a Rule 23 analysis, represent class members who purchased Tracleer in those States, and if they can, then whether plaintiffs can include those claims. View "Mayor and City Council of Baltimore v. Actelion Pharmaceuticals Ltd." on Justia Law
Impax Laboratories, Inc. v. Federal Trade Commission
The Commission charged Impax Laboratories with antitrust violations for accepting payments ultimately worth more than $100 million to delay the entry of its generic drug for more than two years. The Commission conducted a rule-of-reason analysis and unanimously concluded that Impax violated antitrust law.The Fifth Circuit denied the petition for review, concluding that substantial evidence supports the Commission's finding that the reverse payment settlement threatened competition. In this case, Endo agreed to make large payments to the company that was allegedly infringing its patents; in exchange, Impax agreed to delay entry of its generic drug until two-and-a-half years after the FDA approved the drug; and neither the saved costs of forgoing a trial nor any services Endo received justified these payments. Furthermore, substantial evidence supports the Commission's conclusion that a less restrictive, no-payment settlement, alternative was feasible. Therefore, Impax agreed to an unreasonable restraint of trade because the reverse payment settlement was an agreement to preserve and split monopoly profits that was not necessary to allow generic competition before the expiration of Endo's patent. View "Impax Laboratories, Inc. v. Federal Trade Commission" on Justia Law
Federal Trade Commission v. AbbVie Inc
AndroGel, a testosterone replacement therapy, generated billions of dollars in sales, The Federal Trade Commission sued the owners of an AndroGel patent under Section 13(b) of the Federal Trade Commission Act, 21 U.S.C. 301, alleging that they filed sham patent infringement suits against Teva and Perrigo and entered into an anticompetitive reverse-payment agreement with Teva. The FTC accused the defendants of trying to monopolize and restrain trade over AndroGel. The District Court dismissed the FTC’s claims to the extent they relied on a reverse-payment theory but found the defendants liable for monopolization on the sham-litigation theory. The court ordered the defendants to disgorge $448 million in profits but denied the FTC’s request for an injunction.The Third Circuit reversed in part. The district court erred by rejecting the reverse-payment theory and in concluding that the defendants’ litigation against Teva was a sham. The court did not err in concluding the Perrigo litigation was a sham and that the defendants had monopoly power in the relevant market. The FTC has not shown that monopolization entitles it to any remedy. The court did not abuse its discretion in denying injunctive relief. The court erred by ordering disgorgement because that remedy is unavailable under Section 13(b). View "Federal Trade Commission v. AbbVie Inc" on Justia Law