OBB Newsletter

  • Enter your e-mail address below to subscribe to the Orange Book Blog newsletter. If a new post is added during the day, you'll receive it by e-mail the next morning.

Enter your email address:

Delivered by FeedBurner

OBB RSS Feed

  •  

Disclaimer

  • Orange Book Blog is published for informational purposes only; it contains no legal advice whatsoever. Publication of Orange Book Blog does not create an attorney-client relationship. Orange Book Blog is Aaron Barkoff's personal website and it is intended for other attorneys. Orange Book Blog is not edited by McAndrews, Held & Malloy, Ltd. ("MHM") or its clients. No part of Orange Book Blog--whether information, commentary, or other--may be attributed to MHM or its clients. MHM represents many companies in the pharmaceutical and biotechnology industries, and therefore Orange Book Blog may occasionally report on news that relates to MHM clients. Orange Book Blog will always strive to be unbiased. All information on Orange Book Blog should be double-checked for its accuracy and current applicability. -- © Aaron F. Barkoff 2006-2017

« Federal Circuit Temporarily Enjoins Sandoz and Upsher-Smith from Selling Generic Oxandrin | Main | In re: Tamoxifen Citrate Antitrust Litigation, Another "Reverse Payments" Case, Appealed to Supreme Court »

December 14, 2006

Comments

Robert Dailey

After reading the pharmacists' complaint, I see two interesting features.

First, they devote a lot of space to reciting intent-based evidence. Antitrust courts today generally give little weight to such assertions. Unless the plaintiffs can demonstrate that A-Z has monopoly power within some relevant market, A-Z's conduct is just the stuff of everyday business competition.

Second, the pharmacists devote a mere half page to the most crucial portion of their case: defining a relevant market in which A-Z has monopoly power. The pharmacists simply assert that the relevant market consists of the two moleculs at issue. But they fail to proffer any evidence demonstrating the absence of supply-side and demand-side substitutes for these products. Why exclude Tums from the relevant market? The plaintiffs seem to have no answer.

Moreover, the pharmacists make a lot of the FDA's involvement. This actually works to their detriment. How does this square with Justice Scalia's statement in Verizon: "Where a [regulatory structure designed to deter anticompetitive harm] exists, the additional benefit to competition provided by antitrust enforcement will tend to be small, and it will be less plausible that the antitrust laws contemplate such additional scrutiny." 540 US 398, 411 (2004).

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Comments are moderated, and will not appear until the author has approved them.

Your Information

(Name is required. Email address will not be displayed with the comment.)