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Louisiana Wholesale Drug Co. v. Hoechst Marion Roussel, Inc. (In re Cardizem CD Antitrust Litig.)

Louisiana Wholesale Drug Co. v. Hoechst Marion Roussel, Inc. (In re Cardizem CD Antitrust Litig.)

United States Court of Appeals for the Sixth Circuit

April 30, 2002, Argued ; June 13, 2003, Decided ; June 13, 2003, Filed

No. 00-2483

Opinion

 [***3]   [*899]  OBERDORFER, District Judge. This antitrust case arises out of an agreement entered into by the defendants, Hoescht Marion Roussel, Inc. ("HMR"), the manufacturer of the prescription drug Cardizem CD, and Andrx Pharmaceuticals, Inc. ("Andrx"), then a potential manufacturer of a generic version of that drug. The agreement provided, in essence, that Andrx, in exchange for quarterly payments of $ 10 million, would refrain from marketing its generic version of Cardizem CD even after it had received FDA approval [*900]  (the "Agreement"). The plaintiffs are direct and indirect purchasers of Cardizem CD who filed complaints challenging the Agreement as a violation of federal and state antitrust laws. After denying the defendants' motions to dismiss, see  In re Cardizem CD Antitrust Litigation, 105 F. Supp. 2d 618 (E.D. Mich. 2000) ("Dist. Ct. Op. I") and granting the plaintiffs' motions for partial summary judgment, id.,  105 F. Supp. 2d 682 (E.D. Mich. 2000) ("Dist. Ct. Op. II"),  [**4]  the district court certified two questions for interlocutory appeal:

(1) . . . In determining whether Plaintiffs have properly pled antitrust injury, does the language of the Sixth Circuit's decisions in  Valley Products Co. v. Landmark,  [***4]  128 F.3d 398, 404 (6th Cir. 1997) and  Hodges v. WSM, Inc., 26 F.3d 36, 39 (6th Cir. 1994) require dismissal of Plaintiffs' antitrust claims at the pleading stage if Plaintiffs cannot allege facts showing that Defendants' alleged anticompetitive conduct was a "necessary predicate" to their antitrust injury; i.e., that dismissal is required unless Plaintiffs plead facts showing that the alleged antitrust injury could not possibly have occurred absent Defendants' alleged anticompetitive conduct?

(2) . . . In determining whether Plaintiffs' motions for partial judgment were properly granted, whether the Defendants' September 24, 1997 Agreement constitutes a restraint of trade that is illegal per se under section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, and under the corresponding state antitrust laws at issue in this litigation.

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332 F.3d 896 *; 2003 U.S. App. LEXIS 11681 **; 2003 FED App. 0195P (6th Cir.) ***

In re: CARDIZEM CD ANTITRUST LITIGATION. LOUISIANA WHOLESALE DRUG CO., et al., Plaintiffs-Appellees, v. HOECHST MARION ROUSSEL, INC., and ANDRX PHARMACEUTICALS, INC., Defendants-Appellants.

Subsequent History: Rehearing denied by La. Wholesale Drug Co. (In re Cardizem CD Antitrust Litig.) v. Hoechst Marion Roussel, Inc., 2003 U.S. App. LEXIS 15575 (6th Cir., July 24, 2003)

Costs and fees proceeding at, Motion granted by Doe v. United States, 82 Fed. Appx. 250, 2003 U.S. App. LEXIS 24433 (2003)

Later proceeding at Andrx Pharms., Inc. v. Kroger Co., 157 L. Ed. 2d 1204, 124 S. Ct. 1192, 2004 U.S. LEXIS 835 (U.S., 2004)

US Supreme Court certiorari denied by, Motion granted by Andrx Pharms., Inc. v. Kroger Co., 160 L. Ed. 2d 248, 125 S. Ct. 307, 2004 U.S. LEXIS 6911 (U.S., 2004)

Subsequent appeal at In re Cardizem CD Antitrust Litig., 2004 U.S. App. LEXIS 25772 (6th Cir.) (6th Cir. Mich., 2004)

Prior History:  [**1]  Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 99-01278. Nancy G. Edmunds, District Judge.

In re Cardizem CD Antitrust Litig., 105 F. Supp. 2d 682, 2000 U.S. Dist. LEXIS 13226 ( E.D. Mich., 2000)

Disposition: Certified questions answered.

CORE TERMS

antitrust, generic, patent, defendants', anticompetitive, predicate, antitrust violation, patent infringement, district court, anti trust law, manufacturer, plaintiffs', infringe, effects, per year, horizontal, competitors, cases, motion to dismiss, allegations, marketing, flowed, alleged injury, procompetitive, damages, restraint of trade, certification, shuttle, summary judgment, thirty-month

Antitrust & Trade Law, Sherman Act, General Overview, Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Private Actions, Purchasers, Remedies, Business & Corporate Compliance, Sales of Goods, Regulated Practices, Standing, Requirements, Types of Commercial Transactions, Buyer's Damages & Remedies, Appeals, Standards of Review, De Novo Review, Price Fixing & Restraints of Trade, Per Se Rule & Rule of Reason, Summary Judgment Review, Standards of Review, Summary Judgment, Entitlement as Matter of Law, International Trade Law, Monopolies & Monopolization, Conspiracy to Monopolize, Sherman Act, Horizontal Market Allocation, Cartels & Horizontal Restraints, Price Fixing, Clayton Act, Damages, Per Se Rule Tests, Manifestly Anticompetitive Effects, Prioritizing Resources & Organization for Intellectual Property Act