- Volume 9, Issue #6
- Judge Allows Overarching Conspiracy Claim To Go To Jury In Nexium Antitrust Trial
BOSTON - On Sept. 4, the federal judge in Massachusetts overseeing the multidistrict litigation involving the antitrust claims by purchasers of Nexium - that the manufacturer of the heartburn medication and generic drug manufacturers entered into reverse-payment agreements to keep generic versions of the medication out of the market - explained his previous rulings on summary judgment motions before the six-week trial on liability that is set to begin Oct. 20 (In re Nexium [Esomeprazole] Antitrust Litigation, No. 12-md-02409, D. Mass.; 2014 U.S. Dist. LEXIS 126954; See February 2014).
- Federal Antitrust Claims Related To Reverse Payment Agreement In Niaspan Litigation Survive
PHILADELPHIA - Direct purchasers who challenged a reverse payment settlement agreement paid by the brand-name drug manufacturer of Niaspan against a generic drug manufacturer to settle patent infringement litigation sufficiently alleged a reverse payment and antitrust injury under federal antitrust law, a federal judge in New York ruled Sept. 5; however, some of the end-payer plaintiffs' state law antitrust and consumer protection claims were dismissed (In re: Niaspan Antitrust Litigation [All Actions], MDL No. 2460, No. 13-md-2460, E.D. Pa.; 2014 U.S. Dist. LEXIS 124818).
- Lipitor Purchasers Fail To Estimate Value Of Reverse Payment, Claims Dismissed
TRENTON, N.J. - A federal judge in New Jersey on Sept. 12 dismissed with prejudice claims by direct purchasers of Lipitor that the brand manufacturer and a generic manufacturer entered into a reverse-payment settlement agreement (RPSA) that violated antitrust laws, concluding that the purchasers failed to provide a reliable foundation to estimate the monetary value of the settlement (In re: Lipitor Antitrust Litigation [All Direct Purchaser Class Actions], No. 3:12-cv-2389, D. N.J.; 2014 U.S. Dist. LEXIS 127877; See September 2013).
- Reverse Payment Requires Cash Consideration Under Actavis, Federal Judge Rules
PROVIDENCE, R.I. - Purchasers' claims that agreements settling patent infringement litigation between the manufacturer of Loestrin 24 FE, an oral contraceptive, and generic drug manufacturers, which had the effect of keeping generic versions of the medication out of the market, violated federal antitrust law failed because the settlements did not involve a cash payment, a federal judge in Rhode Island ruled Sept. 4 (In re: Loestrin 24 FE Antitrust Litigation [All Actions], MDL No. 13-2472, D. Rhode Island; 2014 U.S. Dist. LEXIS 123322).
- FTC Rejects Proposed Consent Agreement Relating To Georgia Hospital Merger
WASHINGTON, D.C. - The Federal Trade Commission on Sept. 5 rejected a proposed consent agreement with the Hospital Authority of Albany-Dougherty County and Phoebe Putney Health System Inc. that settled FTC charges that the acquisition of Palmyra Park Hospital harmed competition in six Georgia counties (In the Matter of Phoebe Putney Health System, Inc., et al., No. 9348, FTC; See September 2013).
- Claim That Merck Monopolized Mumps Vaccine Market Will Continue
PHILADELPHIA - Physicians who brought a putative class action against Merck & Co. Inc., the sole manufacturer licensed by the Food and Drug Administration to sell mumps vaccine in the United States, survived a motion to dismiss their claim that Merck's alleged fraudulent reporting of the efficacy of the vaccine led to Merck's monopoly of the mumps vaccine market, a federal judge in Pennsylvania ruled Sept. 5 (United States of America, ex rel. Stephen A. Krahling, et al. v. Merck & Co., Inc., Nos. 10-4374, 12-3555, E.D. Pa.; 2014 U.S. Dist. LEXIS 123836).
- Microsoft Says High Court Review Of Challenge To Its License Is Not Warranted
WASHINGTON, D.C. - Microsoft Corp. told the U.S. Supreme Court on Aug. 26 that review is not warranted of the Second Circuit U.S. Court of Appeals' ruling that a software maker failed to sufficiently allege that Microsoft Corp. violated Section 2 of the Sherman Act by restricting its Windows 2007 license to a single user and in pricing its multiuser software (MiniFrame Ltd. v. Microsoft Corporation, No. 14-60, U.S. Sup.; See July 2014).
- Print-On-Demand Author's Antitrust Suit Against Amazon Dismissed As Untimely
SEATTLE - In addition to finding that an author failed to file his putative antitrust class action against Amazon.com Inc. within the appropriate statute of limitations, a Washington federal judge on Aug. 28 also held that the plaintiff failed to support his claim of unlawful tying related to Amazon's services for print-on-demand (POD) authors, granting the online retailer's motion for summary judgment (Rhawn Joseph v. Amazon.com Inc., et al., No. 2:13-cv-01656, W.D. Wash.; 2014 U.S. Dist. LEXIS 121050).
- Post-Trial Briefs Filed In Antitrust Action Against Amex On Anti-Steering Rules
NEW YORK - Plaintiffs United States and 17 states and defendants American Express Co. and American Express Travel Related Services Co. Inc. (collectively, Amex) filed their redacted post-trial briefs following the conclusion of the bench trial in federal court in New York on the plaintiffs' claims that Amex's rules preventing merchants from steering customers toward the use of another credit card violate federal antitrust law (United States of America, et al. v. American Express Co., et al., No. 10-cv-4496, E.D. N.Y.; See May 2014).
- Judge: Discovery Needed To Determine If Antitrust Claim Discharged In Bankruptcy
NEW YORK - A federal judge in New York on Sept. 16 denied United Air Lines' motion to dismiss claims that it participated in a conspiracy to fix the price of air cargo shipments in violation of Section 1 of the Sherman Act, finding that discovery was necessary to determine whether the antitrust claim was discharged in United's bankruptcy (DPWN Holdings [USA], Inc. v. United Air Lines, Inc., et al., No. 11-CV-564, E.D. N.Y.; 2014 U.S. Dist. LEXIS 130154; See March 2014).
- Plaintiffs In Reimbursement MDL Oppose Dismissal Of Complaint, Support Amendment
NEWARK, N.J. - Plaintiffs involved in an antitrust and racketeering multidistrict litigation case accusing Aetna Inc. of underpaying out-of-network reimbursement claims asked a New Jersey federal court on Sept. 12 to deny the defendant's motion to dismiss the suit, which Aetna had filed just two days after the plaintiffs' filed a motion in support of a $120 million settlement (In Re: Aetna UCR Litigation, Master File No. 07-3541, MDL 2020, D. N.J.; See March 2014).
- Filed-Rate Doctrine Bars Some Conspiracy Claims Against Airlines, Federal Judge Rules
SAN FRANCISCO - In a class action brought by airline passengers alleging that international airlines engaged in a conspiracy to fix prices for passenger air transportation, the filed-rate doctrine barred treble damages only as to the rates that the airlines actually filed with the U.S. Department of Transportation, a federal judge in California ruled Sept. 23 (In re Transpacific Passenger Air Transportation Antitrust Litigation, No. C 07-05634, N.D. Calif.; 2014 U.S. Dist. LEXIS 134104).
- Judge Permits Some Damages Experts' Testimony In Student Housing Antitrust Suit
DENVER - Granting in part a defendants' motions to exclude the testimony of damages experts in a dispute over a purported conspiracy to monopolize college student off-campus housing, a Colorado federal judge on Sept. 18 ruled on issues of untimely disclosure, hearsay and prejudgment interest in an antitrust setting (Auraria Student Housing at the Regency LLC v. Campus Village Apartments LLC, No. 1:10-cv-02516, D. Colo.; 2014 U.S. Dist. LEXIS 130959; See January 2013).
- Plaintiff Has Constitutional Standing, May Amend Complaint, Federal Judge Rules
OAKLAND, Calif. - The trustee for the Ritz Camera & Image LLC bankruptcy estate has standing to represent a class of direct purchasers of raw and finished NAND flash memory products in its antitrust litigation against SanDisk Corp., even though Ritz did not purchase any raw NAND flash memory products from SanDisk, a federal judge in California ruled Sept. 19 in an order allowing the plaintiffs to alter the market definition and to add an attempted monopolization claim (Alfred T. Giuliano v. SanDisk Corporation, et al., No. C 10-02787, N.D. Calif.; 2014 U.S. Dist. LEXIS 132163).
- Major League Baseball, Comcast Are Denied Interlocutory Appeal Of Exemption Ruling
NEW YORK - The federal judge in New York overseeing consolidated putative antitrust class actions related to live-game video offerings against Major League Baseball (MLB) and the National Hockey League (NHL) and their member clubs and against multichannel video programming distributors (MVPDs) Comcast and DirecTV and their affiliated regional sports networks (RSNs) that televise the games on Sept. 22 denied MLB's and Comcast Corp.'s motion for leave to immediately appeal the judge's denial of MLB's motion for summary judgment (Fernanda Garber, et al. v. Office of the Commissioner of Baseball, et al., No. 12 Civ. 3704, S.D. N.Y.; 2014 U.S. Dist. LEXIS 133743; See August 2014).
- D.C. Circuit: Judge May Use Discretion In Considering Service Of Process On OPEC
WASHINGTON, D.C. - The District of Columbia Circuit U.S. Court of Appeals on Sept. 12 ruled that a federal district court properly held that a plaintiff failed to effectuate service of process of a price-fixing complaint on the Organization of the Petroleum Exporting Countries (OPEC) but erred by failing to exercise its discretion to consider whether service could be effectuated on OPEC through its U.S. counsel (Freedom Watch, Inc. v. Organization of the Petroleum Exporting Countries, No. 13-7019, D.C. Cir.; 2014 U.S. App. LEXIS 17608).
- Federal Claims In Prescription Drug Case Dismissed; Remaining Claims Remanded
BIRMINGHAM, Ala. - A federal judge in Alabama on Sept. 10 dismissed antitrust, Racketeer Influenced and Corrupt Organization Act and unjust enrichment claims against the third-party administrator of prescription medication and remanded the remaining state law claims to state court (Star Discount Pharmacy Inc., et al. v. MedImpact Healthcare System Inc., et al., No. 11-2206, N.D. Ala.; 2014 U.S. Dist. LEXIS 126606).