Posted by : Matthew Wild | On : August 11, 2008

The United States Court for the District of Columbia affirmed summary judgment dismissing a class action brought by wholesalers of brand name drugs, which alleged that Biovail misused its patent for Tiazac – a hypertension drug – to keep a generic version from the market. Meijer, Inc. v. Biovail Corp., Nos. 05-7066, 05-7069, 06-7118, 2008 WL 2853281 (D.C. Cir. July 25, 2008) (attached Meijer v. Biovail). Plaintiffs claimed that Biovail falsely asserted to the FDA its newly acquired patent protected Tiazac from generic competition. After Andrx – the first-to-file generic manufacturer — advised the FDA that it disagreed with Biovail’s claim, Biovail brought an action for patent infringement action. Under the Hatch-Waxman Act scheme, commencement of the patent infringement action barred Andrx from bringing a generic to market for either 30 months from the date that Andrx certified to the FDA that its generic did not infringe Biovail’s patent or when it prevailed in the litigation. While the litigation was pending, Andrx encountered difficulty sourcing its generic. The D.C. Circuit affirmed summary judgment holding that plaintiffs lacked antitrust injury because they failed to demonstrate but-for Biovail’s conduct, Andrx would have been able to enter the market with its generic. Id. at *6.



Posted by : Matthew Wild | On : July 8, 2008

On June 30, 2008, the First Circuit held that leasees of motor vehicles could not recover under Section 4 of the Clayton Act because they were indirect purchasers of the vehicles. In re New Motor Vehicles Canadian Export Antitrust Litig., No. 07-1990, 2008 WL 2568457 (1st Cir. June 30, 2008). In Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), the Supreme Court held that only plaintiffs that purchased a product directly from a co-conspirator can recover treble damages under Section 4 of the Clayton Act for a violation of the antitrust laws. In an action brought by leasees of motor vehicles who claimed that the motor vehicle manufacturers had conspired to prevent the sale of motor vehicles in Canada to U.S. consumers for export into the U.S., the First Circuit held that the dealers and not the leasing companies or leasees were the direct purchasers under Illinois Brick. The Court held that because the dealers negotiate the terms of the sale in response to rates set by the leasing companies, the dealers were the direct victims of an antitrust violation by the manufacturers. An interesting question is whether consumers in this case have remedies under state antitrust laws if their claims are based on purchases in Canada. Followers of this litigation are directed to the April 14, 2008 Post discussing the First Circuit’s treatment of class certification.



Posted by : Matthew Wild | On : June 21, 2008

On June 9, 2008, the Sixth Circuit rejected a coach’s challenge to the NCAA’s disciplinary rules because he did not allege that the disciplinary rules implicated commercial activity or that he suffered antitrust injury. Bassett v. Nat’l Collegiate Athletic Ass’n, No. 06-5795, 2008 WL 2329755 (6th Cir. June 9, 2008). The Sixth Circuit held that to state a claim under Section 1 of the Sherman Act, “there must be a commercial activity implicated.” Id. at *5. The court further held that “the appropriate inquiry is whether the rule itself is commercial, not whether the entity promulgating the rule is commercial.” Id. (citations omitted). The court then rejected the challenge because the enforcement of disciplinary rules is not a commercial activity. The court also held that plaintiff did not allege antitrust injury. To satisfy this element, the plaintiff had to allege an “anticompetitive effect on the coaching market.” Id. at *7. The coach’s exclusion based on enforcement of the disciplinary rules was insufficient to establish an antitrust injury. It should be noted that the decision contains good dicta explaining when the rule of reason as opposed the per se analysis applies and the nature of the rule of reason analysis.