Brief Amici Curiae of 48 Law, Economics, and Business Professors and the American Antitrust Institute in Support of Appellants

Third Circuit Brief In re: Lipitor XR Antitrust Litigation, 2015

43 Pages Posted: 29 Dec 2015

Multiple version iconThere are 2 versions of this paper

Date Written: December 28, 2015

Abstract

In FTC v. Actavis, the Supreme Court held that a brand payment to a generic to delay entering the market could have "significant anticompetitive effects" and violate the antitrust laws. In In re Lipitor, the District of New Jersey court erred in requiring plaintiffs to produce, at the motion-to-dismiss stage, evidence typically considered at summary judgment or trial. The court's opinion is inconsistent with Actavis, the Third Circuit's Lamictal decision, and pleading standards articulated in the Supreme Court's Twombly and Iqbal rulings. On behalf of 48 professors and the American Antitrust Institute, this Third Circuit amicus brief urges reversal.

The brief first argues that Actavis would be significantly undermined if courts could impose excessive standards at the pleadings stage that effectively make it impossible for plaintiffs to succeed on a claim despite allegations of conduct that violates the antitrust laws and costs consumers hundreds of millions of dollars.

The brief next contends that the excessive pleading requirements imposed are not consistent with Lamictal, as the Third Circuit made clear that Actavis applies to non-cash payments, which could "induce the generic challenger to abandon its claim."

Finally, in manufacturing heightened pleading thresholds, the Lipitor court misread Twombly, Iqbal, and Third Circuit opinions. And it ignored the well-pleaded components of a complaint that alleged: (1) a 20-month delay in generic entry beyond the expiration of the relevant patent; (2) Pfizer's forgiveness of hundreds of millions of dollars in damages in separate litigation for Ranbaxy's token $1 million payment; (3) detailed allegations of the high value of Pfizer's claim for patent damages against Ranbaxy, including allegations of (a) the patent's validity, enforceability, and infringement, (b) Pfizer's preliminary injunction, (c) Pfizer's request for lost profits and enhanced damages, (d) Ranbaxy's entry into the market "at risk," and (e) a "decimated" market that fell from $525 million before Ranbaxy's entry to $71 million after entry; (4) Pfizer's former Chairman and CEO's concession on expected generic entry; and (5) allegations of the right to market generic Lipitor in 11 foreign markets.

Keywords: patent, antitrust, drugs, pharmaceuticals, settlements, reverse payments, exclusion payments, damages forgiveness, Hatch Waxman Act, Lipitor

JEL Classification: I18, K21, L40, L41, L43, L65, O34, O38

Suggested Citation

Carrier, Michael A. and Shadowen, Steve, Brief Amici Curiae of 48 Law, Economics, and Business Professors and the American Antitrust Institute in Support of Appellants (December 28, 2015). Third Circuit Brief In re: Lipitor XR Antitrust Litigation, 2015 . Available at SSRN: https://ssrn.com/abstract=2708946

Michael A. Carrier (Contact Author)

Rutgers Law School ( email )

217 North Fifth Street
Camden, NJ 08102-1203
United States
856-225-6380 (Phone)
856-225-6516 (Fax)

Steve Shadowen

Hilliard & Shadowen LLP ( email )

39 West Main Street
Mechanicsburg, PA 17055
United States

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