Antitrust Litigation

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We have considerable experience in cases involving claims of price-fixing, conspiracy, and illegal tying under state and federal law. For example, we have successfully litigated many cases involving mergers and sales of businesses or portions of businesses; have handled antitrust class actions on both the plaintiffs’ and defendants’ side; and have represented individuals who are the target of governmental antitrust investigations. Barry Refsin, Shareholder, Litigation

Our Antitrust Litigation practice group also represents some of the country's largest retail drugstore chains in groundbreaking cases concerning the intersection of intellectual property law and trade regulation. In 1984, Congress passed the Hatch-Waxman Act in an effort to simplify the regulatory hurdles for prospective generic drug manufacturers by eliminating the need for companies to file lengthy and costly applications to obtain FDA approval for generic versions of brand name drugs. Congress also added a number of patent-related provisions to the Hatch-Waxman Act to further the legislative intent of bringing generic drugs onto the market as rapidly as possible.

Over the past decade, brand name drug manufacturers have gone to great lengths to avoid the negative effect of generic drug entry on their sales, including, for instance, agreeing to make significant payments to generic manufacturers in exchange for staying off the market. Other brand name drug manufacturers have improperly listed patents in the FDA's Orange Book, which identifies drug products approved by that agency on the basis of safety and effectiveness, in order to delay generic drug entry. We have vigorously opposed such actions as violating the antitrust laws and have pursued our clients' interests in several lawsuits challenging this type of conduct.

Monica Rebuck, Shareholder, LitigationIn one such case brought by our clients, the complaint alleges that the brand manufacturer manipulated the Hatch-Waxman Act by twice changing the formulation of a brand name fenofibrate drug not to improve the drug but simply to prevent generic formulations from becoming rated for substitution, by removing the old formulation from the market, and by changing the code of the old formulation on the National Drug Data File ("NDDF") to "obsolete," thereby impairing generic substitution.  Plaintiffs also allege that Defendants sought to manipulate the Hatch-Waxman Act by initiating patent-infringement litigation against would-be generic entrants solely to delay the entry of generic fenofibrate formulations into the market.  The brand manufacturer moved to dismiss.

In a May 2006 opinion, Judge Kent A. Jordan of the District of Delaware found the plaintiffs had adequately alleged having suffered antitrust harm from the brand manufacturer's actions.  By twice changing the product formulations, "[b]y removing the old products from the market and changing the NDDF code, defendants allegedly suppressed competition by blocking the introduction of generic fenofibrate. . .such conduct, which results in consumer coercion, is potentially anticompetitive."  The judge also found the plaintiffs had sufficiently alleged that the brand manufacturer's patent litigation suits against the generic companies were brought without a reasonable basis.

We also have represented individuals and domestic and foreign corporations as defendants in civil and criminal proceedings brought by the Department of Justice for alleged antitrust violations. We successfully represented a corporation in civil injunctive proceedings initiated by the Commonwealth of Pennsylvania in an attempt to prevent our client from selling a chocolate company to another candy manufacturer in a $35 million merger.