Justia U.S. 3rd Circuit Court of Appeals Opinion Summaries

Sanofi has sold Lovenox, an anticoagulant drug, in the U.S. since 1993. Fragmin, a competing injectable, sold only abroad until 2005, when Eisai obtained a U.S. license. Some Fragmin indications overlap Lovenox’s indications. The relevant product market also includes two other injectable anticoagulant drugs. In 2005-2010, Lovenox had the most indications of the four drugs, the largest sales force, and a market share of 81.5% to 92.3%. Fragmin had the second largest market share at 4.3-8.2%. In 2005-2010, Sanofi offered the “Lovenox Acute Contract Value Program.” Eisai alleged anticompetitive conduct by: market share and volume discounts, a restrictive formulary access clause, and aggressive sales tactics in marketing the Program. The Third Circuit affirmed summary judgment in favor of Sanofi. What Eisai called “payoffs” were only discounts Sanofi offered its customers; what Eisai called “agreements with hospitals to block access” were actually provisions proscribing customers from favoring competing drugs over Lovenox. What Eisai called “a campaign of ‘fear, uncertainty, and doubt’” was simply Sanofi’s marketing. Under the rule of reason, there was no evidence that Sanofi’s actions caused broad harm to the competitive nature of the anticoagulant market. If Sanofi’s conduct caused damage to its competitors, that is not a harm for which Congress has prescribed a remedy. View "Eisai Inc v. Sanofi Aventis U.S. LLC" on Justia Law

An Automated Maritime Telecommunications System (AMTS) is a U.S. communication service between land and vessels in navigable waterways, existing on specific broadcast frequencies. Advances in technology have greatly expanded the potential uses of AMTSs. Under the original site-based system, small geographic regions were defined by location and the waterway served and the FCC provided licenses at no cost to the first applicant. In 2000, the FCC stopped issuing site-based licenses and began issuing licenses by competitive bidding; it divided the U.S. into 10 regions and, at public auctions, sold “geographic” licenses for two blocks of AMTS frequencies in each region. Although geographic licensees may generally place stations anywhere within their region, they may not interfere with the functioning of existing site-based stations, so the location of a site-based station creates a gap in a geographic licensee’s coverage area. Plaintiffs obtained geographic licenses in areas overlaying pre-existing site-based licenses. Site-based operators refused to provide plaintiffs with the operating contours for their site-based locations within plaintiffs’ geographic locations. Plaintiffs filed suit, alleging violation of the Federal Communications Act and the Sherman Antitrust Act. The Third Circuit affirmed dismissal of the FCA claims and a determination that no antitrust conspiracy existed. Plaintiffs did not identify particular actions that were determined by the FCC to be unreasonable or unjust and, therefore, do not possess a private right of action. View "Havens v. Mobex Network Servs., LLC" on Justia Law

Hanover Realty contracted with Wegmans to develop a supermarket on its New Jersey property, requiring Hanover to secure necessary permits and approvals before breaking ground. ShopRite and its development subsidiary filed administrative and court challenges to Hanover’s applications. Believing these filings were baseless and intended only to frustrate the entry of a competitor, Hanover sued for antitrust violations. The district court dismissed, holding that Hanover did not have standing because it was not a competitor, consumer, or participant in the restrained markets and did not sustain the type of injury the antitrust laws were intended to prevent. The Third Circuit vacated with respect to the claim for attempted monopolization of the market for full-service supermarkets. Hanover can establish that its injury was “inextricably intertwined” with defendants’ anti-competitive conduct. Hanover sufficiently alleged that the petitioning activity at issue was undertaken without regard to the merits of the claims and for the purpose of using the governmental process to restrain trade, so that defendants are not protected by Noerr-Pennington immunity because their conduct falls within the exception for sham litigation. The court affirmed as to the claim for attempted monopolization of the rental space market; there was no standing because Hanover does not compete with defendants in that market. View "Hanover 3201 Realty LLC v. Vill. Supermarkets, Inc." on Justia Law

The U.S. chocolate market is dominated by three companies: Hershey, Mars, and Nestlé USA (the Chocolate Manufacturers). A certified class of direct purchasers of chocolate products and a group of individual plaintiffs alleged that the Chocolate Manufacturers conspired to raise prices on chocolate candy products in the United States three times between 2002 and 2007. They offered evidence of a contemporaneous antitrust conspiracy in Canada. The district court granted the defendants summary judgment. The Third Circuit affirmed, finding that the Canadian conspiracy evidence was ambiguous and did not support an inference of a U.S. conspiracy because the people involved in and the circumstances surrounding the Canadian conspiracy are different from those involved in and surrounding the purported U.S. conspiracy; evidence that the U.S. Chocolate Manufacturers knew of the unlawful Canadian conspiracy was weak and, in any event, related only to Hershey. Other traditional conspiracy evidence was insufficient to create a reasonable inference of a U.S. price-fixing conspiracy. View "In re: Chocolate Confectionary Antitrust Litig." on Justia Law

In earlier litigation, Teva challenged the validity and enforceability of GSK’s patents on lamotrigine, Lamictal’s active ingredient. Teva was first to file an FDA application, alleging invalidity or nonenforceability, and seeking approval to produce generic lamotrigine tablets and chewable tablets for markets alleged to be annually worth $2 billion and $50 million,. If the patent suit resulted in a determination of invalidity or nonenforceability—or a settlement incorporating such terms—Teva would be statutorily entitled to a 180- day period of market exclusivity, during which time only it and GSK could produce generic lamotrigine tablets. After the judge ruled the patent’s main claim invalid, the companies settled; Teva would end its patent challenge in exchange for early entry into the chewables market and GSK’s commitment not to produce its own, “authorized generic” Lamictal tablets. Plaintiffs, direct purchasers of Lamictal, sued under the Sherman Act, 15 U.S.C. 1 & 2, claiming that the agreement was a “reverse payment” intended to induce Teva to abandon the patent fight and eliminate the risk of competition in the lamotrigine tablet market for longer than the patent would otherwise permit. The district court dismissed. The Third Circuit vacated, citing Supreme Court precedent, holding that unexplained large payments from the holder of a drug patent to an alleged infringer to settle litigation of the patent’s validity or infringement (reverse payment) can violate antitrust laws. View "King Drug Co of Florence Inc, v. Smithkline Beecham Corp." on Justia Law

Plaintiffs are direct purchasers of traditional blood reagents, used to test blood compatibility between donors and recipients, from Immucor and OrthoClinical (defendants). By 1999, the entire domestic supply of that product was under defendants’ control. In 2000, defendants’ executives attended a trade meeting at which plaintiffs assert the conspiracy began. Defendants soon began rapidly increasing prices. By 2009, many prices had risen more than 2000%. Following a Department of Justice probe, private suits were filed, transferred by the Judicial Panel on Multidistrict Litigation, and consolidated. Plaintiffs sought damages under the Clayton Act, 15 U.S.C. 15, for alleged horizontal price fixing in violation of the Sherman Act, 15 U.S.C. 1. After preliminary approval of plaintiffs’ settlement with Immucor, the court certified plaintiffs’ class of “[a]ll individuals and entities who purchased traditional blood reagents in the United States directly from Defendants ... at any time from January 1, 2000 through the present.” Plaintiffs relied in part on expert testimony to produce their antitrust impact analyses and damages models, which Ortho challenged. The Supreme Court subsequently decided Comcast v. Behrend, which reversed Behrend v. Comcast, on which the district court relied in granting class certification. The Third Circuit vacated, reasoning that the court had no opportunity to consider the implications of Comcast; a court must resolve any Daubert challenges to expert testimony offered to demonstrate conformity with Rule 23 View "In re: Blood Reagents Antitrust Litig." on Justia Law

Fair Wind owns sailing schools, including one in St. Thomas, Virgin Islands. In 2007 Fair Wind hired Bouffard as a captain and instructor, under a contract precluding Bouffard from joining a competitor within 20 miles of the St. Thomas school for two years after the end of his employment. In 2010, relying on Bouffard View "Fair Wind Sailing Inc v. Dempster" on Justia Law

Ferring and Watson market competing prescription progesterone products. Progesterone plays a key role in helping women become pregnant and maintain pregnancies by preparing and maintaining the uterine lining to support the embryo during early pregnancy. Historically, women have received progesterone through intramuscular shots, which are not FDA-approved and which patients consider painful. Both companies manufacture a product that administers progesterone to women through vaginal inserts rather than shots. Ferring’s product, Endometrin, is delivered in capsule form. Watson’s product, Crinone, is a gel delivered via applicator. Ferring unsuccessfully sought a preliminary injunction under the Lanham Act, based on two presentations made by Watson in 2012 to healthcare professionals concerning Crinone. Watson’s consultant, Dr. Silverberg made statements concerning a “Black Box” warning on Endometrin’s package insert; a patient preference survey comparing the products; and Endometrin’s effectiveness in women over the age 35. Silverberg was alerted to the inaccuracy of his statement about a Black Box warning after the first webcast and certified to Ferring and to the court that he would not repeat the statement. The district court held that Ferring failed to demonstrate irreparable harm. The Third Circuit affirmed, citing Supreme Court holdings that a party bringing a claim under the Lanham Act is not entitled to a presumption of irreparable harm when seeking a preliminary injunction and must demonstrate that irreparable harm is likely. View "Ferring Pharm. Inc. v. Watson Pharm., Inc." on Justia Law

Antitrust class actions alleged that defendants conspired to set a price floor for baby products. The court initially approved a settlement. Notice was sent to putative class members informing them of their right to submit a claim, opt out, or object. The deadline for submitting claims expired; the court approved the settlement and an allocation plan. Defendants deposited $35,500,000 into a settlement fund. After payment of attorneys’ fees and expenses, the remainder was slated for distribution to the settlement class. Claimants are entitled to different levels of compensation. The remainder would go to charitable organizations proposed by the parties and selected by the court. The Third Circuit vacated, stating that cy pres distributions are permissible, but inferior to direct distributions to the class, because they only imperfectly serve the purpose of compensating class members. The district court did not adequately consider that about $14,000,000 will go to class counsel, roughly $3,000,000 will be distributed to class members, and the rest, approximately $18,500,000 less administrative expenses, will be distributed to cy pres recipients. The court also needs to consider the level of direct benefit to the class in calculating attorneys’ fees. View "In re: Baby Products Antitrust Litig." on Justia Law

Ethypharm, a French corporation, contracted with Reliant, an American company. Ethypharm would manufacture and provide its drug (Antara®); Reliant would obtain approval and market the drug. Reliant sought FDA approval under 21 U.S.C. 505(b)(2), using data from an approved, fenofibrate drug, TriCor®, developed by Fournier and distributed in the U.S. by Abbott. Antara received approval. Reliant began marketing and sought a declaration of non-infringement or unenforceability of Abbott’s patents. Abbott counterclaimed. In 2006, the companies settled: Abbott and Fournier would license the patents to Reliant and Reliant would pay royaltys. The agreement prohibited Reliant from assigning its rights to or partnering with specific companies. Reliant sold its rights to Oscient, which was not a prohibited purchaser. Losing market share to generic fenofibrate, Oscient discontinued promotion of Antara and filed for bankruptcy. Ethypharm sued Abbott, alleging antitrust and sham litigation under 15 U.S.C. 1, asserting that the settlement agreement was designed to ensure that Antara would be marketed by a company with “limited resources and a relatively small sales force,” so that it could not effectively compete with TriCor and that the royalty payment weakened Antara’s profitability. The district court granted Abbott summary judgment. The Third Circuit vacated, holding that Ethypharm lacked standing under the Sherman Act. View "Ethypharm SA France v. Abbott Labs" on Justia Law