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December 14, 2006


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).

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