Recent years have seen a significant number of antitrust challenges to so-called “reverse payment” pharmaceutical patent litigation settlements between brand name manufacturers and their generic competitors. The Supreme Court’s decision in FTC v. Actavis resolved a split among the courts of appeal, and held that settlements in which “large and unjustified” reverse payments are made are subject to antitrust scrutiny in the form of a traditional “rule of reason” analysis. In the wake of Actavis, the lower courts have begun to grapple with the question of what, if any, application Actavis has to the disposition of antitrust challenges to patent settlements that do not include a large payment of cash by the brand producer to the generic, but may include other forms of non-monetary consideration.
The Foreign Trade Antitrust Improvements Act (“FTAIA”) removes from the ambit of the Sherman Antitrust Act otherwise actionable anti-competitive conduct abroad that does not have a “direct, substantial, and reasonably foreseeable” effect on domestic commerce. Questions persist as to what effects qualify as being sufficiently “direct” and also whether the FTAIA is jurisdictional in nature or goes to the substantive merits of a claim. A recent decision out of the Southern District of New York addressed both questions in dismissing an antitrust suit brought by one Chinese corporation against its Chinese competitors.
A New Jersey federal district court’s March 18th opinion granting defendants’ motions to dismiss an antitrust complaint is yet another reminder of the need to inject precision and factual detail into an antitrust claim in order to meet the strict pleading requirements applicable to such claims. The putative class of indirect purchaser plaintiffs in In re Ductile Iron Pipe Fittings (“DIPF”) Indirect Purchaser Antitrust Litigation brought a total of ten claims, alleging principally that iron pipe fitting manufacturers and distributors conspired to fix prices and monopolized the domestic iron pipe fitting market in violation of Sherman Act Sections 1 and 2. In holding that the pleadings failed to establish antitrust impact with sufficient specificity (but granting plaintiffs leave to amend their complaint), the Court reasoned as follows:
Defendants in reverse-payment actions pending in the Third Circuit (New Jersey, Pennsylvania, and Delaware) take note: in In re Effexor XR Antitrust Litigation the Honorable Joel A. Pisano, U.S.D.J., of the District of New Jersey has stayed several class-action litigations challenging the legality of certain reverse-payment settlement agreements between Wyeth and generic drug manufacturer Teva Pharmaceuticals, pursuant to which Wyeth allegedly paid Teva to delay its marketing of a generic counterpart to Wyeth’s Effexor XR drug.
Third Circuit Affirms Plaintiffs’ Zero-Damages Antitrust Victory, Restricting the Scope of What Constitutes “Reliable” Expert Damages Data
The Third Circuit’s 94-page opinion in antitrust case ZF Meritor, LLC v. Eaton Corp., issued on September 28, 2012, offers something for everyone in its smorgasbord of holdings concerning the law of exclusive dealing, proof of damages, and Article III standing. The opinion is most notable for rejecting the notion that above-cost prices can render an otherwise unlawful exclusive dealing agreement lawful, reinforcing the viability of de facto exclusive-dealing arrangements under Sections 1 and 2 of the Sherman Act, and ratcheting up the gatekeeper role courts play under Daubert.
Second Circuit Reverses Award of Summary Judgment in Price-Fixing Action, Based on Clarification of Matsushita and Examination of Antitrust Causation
On August 6, 2012, ten days after the Third Circuit issued its opinion in Superior Offshore International, Inc. v. Bristow Group, Inc. — the subject of a prior blog entry — the Second Circuit decided In re Publication Paper Antitrust Litigation, which sheds additional light on the proof required to sustain a claim for horizontal price-fixing under Section 1 of the Sherman Act. Recognizing, but not relying on, the evidentiary distinction between direct and circumstantial evidence discussed in Superior Offshore International, the Court instead assessed the totality of the evidence to determine whether it supported a reasonable inference of an illegal agreement. Importantly, the Court made clear that although an antitrust plaintiff must point to record evidence giving rise to such an inference in order to defeat summary judgment, it need not also disprove the possibility of non-conspiratorial conduct. In addition, the Court held, a plaintiff must show that the illegal agreement was both a material and a but-for cause of the alleged price increase.
Third Circuit Sets High Bar for Proof of Price-Fixing, Affirms Dismissal on Summary Judgment Based on Twombly
The Third Circuit’s July 27, 2012, opinion in Superior Offshore International, Inc. v. Bristow Group, Inc., confirms that an antitrust plaintiff relying on circumstantial evidence of price-fixing must demonstrate something more than merely parallel behavior, not only to survive a motion to dismiss, as the Supreme Court held in Bell Atlantic Corp. v. Twombly, but also to defeat summary judgment. Thus, unless a plaintiff can present record evidence that is plausibly suggestive of, and not just consistent with, an illegal agreement to fix prices, a defendant moving for summary judgment should prevail. Indeed, without evidence of a manifest agreement not to compete, Superior Offshore International (“SOI”) suggests that courts will not infer an illegal price-fixing arrangement even where participants in an oligopoly market raise prices despite a weakening of demand for their services.
Second Circuit Finds No Anti-Competitive Conduct in Eatoni v. RIM, Applies “Manifest Disregard of the Law,” Post-Hall Street
In a summary order issued on June 21, 2012, the Second Circuit in Eatoni Ergonomics, Inc. v. Research in Motion Corp., affirmed the Rule 12(b)(6) dismissal of Eatoni’s monopolization complaint against BlackBerry maker RIM for failure adequately to plead anti-competitive conduct. Significantly, the Court held that individual instances of alleged misconduct that are not anti-competitive on their own do not state a claim under Section 2 of the Sherman Act when considered together.
Third Circuit Denies Federal Antitrust Standing to Hospitals Purchasing Products Through Distributors Despite Contract Between Manufacturer and Hospitals’ Group Purchasing Organization
In In re Hypodermic Products Antitrust Litigation, the Third Circuit once again denied federal antitrust standing to a class of hospitals seeking damages from the manufacturer of hypodermic products because the hospitals paid for and took possession of such products from intermediate distributors and negotiated their final price with the distributors.