Antitrust Law Daily Wrap Up, ANTITRUST—D. Conn.: Drug companies seek to expand discovery in Aggrenox pay-for-delay suit, (Jan 12, 2016)

By Linda O’Brien, J.D., LL.M.

In an action by purchasers of the prescription drug Aggrenox, claiming that various pharmaceutical companies violated state and federal antitrust laws by entering into a “pay for delay” agreement, the federal district court in Bridgeport, Connecticut has ordered the defendant pharmaceutical companies to show cause why discovery should not be restricted to the market of the single product at issue in the case (In re Aggrenox Antitrust Litigation, January 8, 2016, Underhill, S.).

Aggrenox is a brand-name prescription medication consisting of a particular combination of dipyridamole and aspirin, approved for lowering the risk of stroke or transient ischemic attack. A number of pharmaceutical companies were sued by direct and indirect purchasers of the prescription drug, for allegedly entering into an unlawful agreement, delaying entry of generic Aggrenox, in violation of federal and state antitrust laws. In March 2015, the court entered an order, partially granting the pharmaceutical companies’ motion to dismiss, but leaving the federal antitrust claims mostly intact.

The court ordered the pharmaceutical companies to show cause why an order restricting discovery and evidence in the case to the market of Aggrenox and its generic equivalent should not be entered. The defendants sought to expand discovery to include various drugs other than Aggrenox and its generic equivalent, since the additional information was relevant to the definition of the product market. The plaintiffs responded that they sought to prove that overcharges of a single product, along with its generic equivalent, constituted an antitrust market alone.

Proof that a defendant unlawfully monopolized a market requires evidence that the defendant possesses monopoly power and may require defining the relevant market and establishing market share, the court explained. However, it is unclear whether evidence of a market definition and market share are required when a plaintiff seeks to show antitrust violations by direct evidence of market power, such as the supracompetitive prices would not have occurred without market power.

Specifically, the defendants were directed to respond to the questions: (1) whether an antitrust plaintiff’s proof of overcharges necessarily shows market power, since the extraction of supracompetitive prices is itself an exercise of market power; (2) whether an allegation of supracompetitive prices can be proved or disproved with sales and pricing data only with respect to the allegedly supracompetitively priced product and its generic version; and, if so, (3) whether an explicit explanation of an antitrust market definition is required or material.

The case is No. 3:14-md-02516-SRU.

Attorneys: Brian P. Daniels (Brenner, Saltzman & Wallman LLP) for Aggrenox Antitrust Litigation. Mathew P. Jasinski (Motley Rice LLC) for A.F. of L. - A.G.C. Buildings Trade Welfare Plan. Brigid M. Carpenter (Baker, Donelson, Berman, Caldwell & Berkowitz, PC) for Barr Pharmaceuticals Inc. Jaime M. Crowe (White & Case) for Boehringer Ingelheim International GmbH.

Companies: Boehringer Ingelheim International GmbH; Boehringer Ingelheim Pharmaceuticals, Inc.; Teva Pharmaceutical Industries, Ltd.; Barr Pharmaceuticals, Inc.; Duramed Pharmaceuticals Inc.

Cases: Antitrust ConnecticutNews