Antitrust Law Daily Wrap Up, ANTITRUST—C.D. Cal.: J&J Biosense permanently enjoined from catheter tying, blocking, hoarding, after $442 million judgment, (Aug 1, 2025)

By Justin Marcus Smith, J.D.

The court concluded the lessening of competition could not be remedied by tender of a single check for money damages.

After remand by the Ninth Circuit, jury trial, and entry of a $442 million judgment in favor of Innovative Health LLC (Innovative) against Biosense Webster, Inc. (Biosense), a subsidiary of Johnson & Johnson (J&J), the federal district court in Santa Ana, California, granted an Innovative motion for injunctive relief with modifications to the proposed injunction language. The court analyzed that all eBay factors favored injunctive relief. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Money damages would not be enough to address the continuing risk of irreparable harm to Innovative and to competition as a whole. The court held injunctive relief should apply to (1) case coverage policy regarding clinical support; (2) use of anti-reprocessing blocking technology; and (3) collection of catheters (Innovative Health LLC v. Biosense Webster, Inc., No. 8:19-cv-01984-JVS-KES (C.D. Cal. July 31, 2025)).

Background. Innovative, a re-processor of used catheters, alleged Biosense, engaged in unlawful tying of Biosense CARTO3 cardiac mapping clinical support services to sales of CARTO3 catheter purchases. Innovative claimed this tying violated the Sherman Act and California’s Cartwright Act.

The district court granted summary judgment to Biosense, but the U.S. Court of Appeals for the Ninth Circuit reversed and remanded. The Ninth Circuit held Innovative produced enough evidence, under the Epic Games consumer demand test, for a rational trier of fact to conclude Biosense clinical support services and Biosense catheters were distinct products. See Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 1002 (9th Cir. 2023), cert. denied, 144 S. Ct. 681, 217 L. Ed. 2d 382 (2024), and cert. denied, 144 S. Ct. 682, 217 L. Ed. 2D 382 (2024) (citations omitted). The dissent disagreed on the ground that Innovative failed to show any Biosense customers were locked-in.

After remand and jury trial, the jury returned a verdict for Innovative on claims for unlawful tying under Section 1 of the Sherman Act; unlawful monopolization under Section 2 of the Sherman Act; attempted monopolization under Section 2 of the Sherman Act; and unlawful tying under California’s Cartwright Act.

The jury awarded damages to Innovative exceeding $147 million and automatically trebled to more than $442 million. The court entered judgment for Innovative on June 5, 2025.

Innovative then requested the court issue a permanent injunction to address three categories of Biosense practices:

1. case coverage policy regarding clinical support;

2. use of anti-reprocessing blocking technology;

3. collection of catheters.

More specifically, the permanent injunction Innovative requested would:

1. terminate the illegal Biosense case coverage policy by enjoining Biosense from:

2. conditioning clinical support on purchase of Biosense catheters;

3. discriminating provision of clinical support or CARTO availability;

4. enjoin Biosense from using its blocking technology conditioning use of CARTO on consumables;

5. enjoin Biosense from collecting used consumable not approve for reprocess, with certain exceptions;

6. require Biosense to report to the court every six months;

7. provide notification to past and current CARTO users that Biosense will clinically support every customer or end user on nondiscriminatory terms, without regard to use of non- Biosense consumables, among related details;

8. permit Innovative to establish a compliance hotline;

9. remain in effect for 10 years, subject to modification.

The court granted the motion to permanently enjoin Biosense with modifications to proposed language.

Irreparable harm. Biosense argued there was no irreparable harm because, as Innovative’s expert showed, damages its clinical support policy caused were readily calculable as money damages. The court said this argument missed the mark because there was a question of recurring violation of the antitrust laws. A damages award would also not preclude injunctive relief.

Biosense also contended there was no irreparable harm because Innovative operated for years with the Biosense clinical support policy in place. This also missed the mark to the extent the threat of being driven out of business may be enough to show irreparable harm. Alienation of customers through Biosense threats to stop covering their cases if they bought reprocessed devices from Innovative exacerbated the harm to Innovative’s business beyond mere loss of revenue.

The jury also found Biosense violated Section 1 of the Sherman Act through tying. As long as the Biosense clinical support policy was tied to catheter purchases, Innovative would continue to suffer. Accordingly, the first and second eBay factors weighed in favor of injunction.

The public interest factor also favored injunctive relief to promote competition. Enjoining the tying arrangement and resulting lock-in of customers would allow other competitors to develop their own CARTO-compatible catheters. Moreover, as Innovative argued, more competition would tend to result in lower prices, higher quality, and better patient care. The court said there was no doubt the eBay factors favored injunctive relief.

Coverage policy. The court granted the injunction as to the case coverage policy with some necessary modifications. First, the court reasoned the proposed non-discriminatory provisions had antitrust precedent. See, e.g., Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451 (1992). The court deemed meritless the Biosense argument that the injunction would force a Biosense captive supplier to sell and market Innovative products. The current case coverage policy was discriminatory, and that was the only thing to be prohibited. Biosense did not claim it would not be able to continue providing free clinical support. Biosense served all users before adoption of the case coverage policy.

Third, the proposed non-discriminatory provision was purposefully broad. It only required Biosense to not limit the availability of its clinical support based on the manufacturer. Fourth, conditioning CARTO availability was not overbroad. It would only restrict one way of financing CARTO, commitment to buy Biosense catheters.

Last, the court found Biosense CAS could effectively support clinical procedures involving use of Innovative catheters. However, in the event that customers asked CAS about Innovative catheter specifications, the court ordered Innovative to add specific language to the modified proposed injunction that Biosense CAS would “have no responsibility to make any representations as to the accuracy, performance, or specifications of a competitor’s products.”

Blocking technologies. Turning to the anti-reprocessing technology, Biosense contended Innovative could not seek injunctive relief for past conduct, including as to use of firmware flash memory chips, like the Falcon chip, developed nearly a decade ago. Innovative made it clear that it only sought to enjoin future blocking technologies. To prevent further confusion, Innovative filed modifications to adequately clarify the injunction would not apply to technology deployed before June 5, 2025.

Again, the court found a basis for injunctive relief on the eBay factors. Irreparable injury pertained to Biosense technology limiting the use of CARTO to only Biosense catheters, albeit to a lesser degree that suffered under the coverage policy. Biosense might also seek to evade the injunction by developing new firmware to prevent non-Biosense devices from working with CARTO.

Innovative agreed with Biosense that it should not seek to condemn benign innovations. Accordingly, the court found it necessary to revise the no-blocking technology clause to reflect that a technology may delay processing but may not be intentionally designed to preclude non-Biosense devices from functioning with CARTO. The Falcon chips were a clear example of impermissible blocking.

Hoarding. As for catheter collection, the jury did not make specific findings, but the court was persuaded the Biosense case coverage policy was sufficiently connected to its collection practices. The collection practices targeted some catheters outside the scope of the case coverage policy, an alternative avenue for Biosense to chock catheter competition. Innovative showed at trial that Biosense was collecting catheters it could not reprocess just to throttle the supply. The court concluded injunctive relief was necessary to stop Biosense from destroying catheter supply through hoarding.

Ancillary provisions. The court found the biannual report requirement placed a minimal burden on Biosense. J&J already had its own publicly accessible hotline. The court set an injunctive term of five years, rather than ten as in Kodak, or only three as in the more recent case of the Google Play Store litigation. The court reasoned the injunction had to be in place for at least one cycle of Innovative’s contract.

The Case is No. 8:19-cv-01984-JVS-KES.

Judge: Selna, J.

Attorneys: Jeffrey L. Berhold (Jeffrey L. Berhold PC) for Innovative Health LLC. Karla J. Kraft (Stradling Yocca Carlson and Rauth LLP) for Biosense Webster, Inc.

Companies: Innovative Health LLC; Biosense Webster, Inc.

Cases: Antitrust CaliforniaNews