Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Medical practice asks Supreme Court to take up antitrust suit against vaccine maker, (Jul 16, 2025)

By Donielle Tigay Stutland, J.D.

Petition requests the Supreme Court address the question: “[W]hether and, if so, to what extent Noerr permits the imposition of antitrust liability for a litigant’s fraud or other misrepresentations”?

Direct purchasers of Merck vaccines filed a Petition for Writ of Certiorari with the Supreme Court of the United States, seeking to challenge a Third Circuit opinion that granted Merck & Co. immunity from antitrust claims related to submissions made to the FDA regarding Merck's mumps vaccine. The petition asks the court to address a split amongst the circuits as to the question presented, “[W]hether and, if so, to what extent Noerr permits the imposition of antitrust liability for a litigant’s fraud or other misrepresentations”? Additionally, the petitioners argue that the Third Circuit “fundamentally misapplied Noerr-Pennington” (Chatom Primary Care, P.C. v. Merck & Co., Inc., No. 25-45 (U.S. July 10, 2025)).

Background. This case arises out of two proceedings related to Merck’s alleged misleading statements concerning the company’s vaccines which led to antitrust violations: Chatom Primary Care, P.C. v. Merck & Co., Inc., No. 2:12-cv-03555 (E.D. Pa. 2023); and In re: Merck Mumps Vaccine Antitrust Litigation, No. 23-3089 (3d Cir. 2024).

In the Third Circuit case, a primary care group and two physicians filed a consolidated amended class action complaint on behalf of direct purchasers of drug manufacturer Merck & Co., Inc.’s mumps vaccines, MMR-II and ProQuad. Merck allegedly misrepresented the efficacy of those mumps vaccines to the federal government in order to secure a monopoly in that market. In their telling, the false and misleading information Merck submitted about its vaccine to the FDA precluded rival drugmaker GlaxoSmithKline (previously SmithKlineBeecham) from obtaining a FDA license to sell either of its own mumps-containing vaccines in the U.S., causing direct purchasers such as themselves to be overcharged.

The lawsuit alleged that in the late 1990s, the FDA approached Merck with concerns about the end-of-shelf-life potency of its mumps vaccine, the sole licensed mumps vaccine available in the United States. Merck boosted the initial potency of its vaccine, presumably with the hope that increasing beginning-of-shelf-life potency would increase end-of-shelf-life potency too, but this did not work. The complaint alleged that rather than reveal that the vaccine might be misbranded, Merck allegedly (1) concealed its ongoing potency problems, (2) ran a flawed clinical trial, and (3) relied on that unreliable data to persuade the FDA to license a less potent vaccine. The direct purchasers brought a class action lawsuit alleging that they bought Merck’s mumps vaccines at inflated prices. The complaint alleged that Merck unlawfully extended its apparent monopoly by making false drug-label claims with the goal of thwarting competition, in violation of § 2 of the Sherman Act.

The Third Circuit determined that Merck's actions were protected by Noerr-Pennington immunity, which shields genuine petitioning of government from antitrust lawsuits, even if the petitioning had a commercial impact and involved unethical conduct.

In the case in the Eastern District of Pennsylvania, Chatom Primary Care, P.C., brought a proposed class action on behalf of direct purchasers of Defendant Merck & Co., Inc.’s (“Merck”) mumps vaccines. They alleged that that they were overcharged for Merck’s mumps vaccines as a result of Merck’s unlawful monopolization of the Mumps Vaccine Market in violation of Section 2 of the Sherman Act and New Jersey and New York state laws.

Circuit Split. The petitioners first argue that the Supreme Court should grant certiorari because of a circuit split as to the question presented, “[W]hether and, if so, to what extent Noerr permits the imposition of antitrust liability for a litigant’s fraud or other misrepresentations”?

While the Third Circuit has flat out “reject[ed] a standalone exception to Noerr-Pennington immunity for petitions containing fraudulent misrepresentations,” the petition asserts that “ten other circuits, though, have refused to provide blanket immunity for intentional misrepresentations, and in so doing have expressly acknowledged the split with the Third Circuit.” Further, the petition avers that these “circuits do not grant Noerr-Pennington immunity where the anticompetitive conduct” consists of “knowing misrepresentations” made “in the administrative and adjudicatory contexts.” The petition describes three approaches. First, the Third Circuit has “the most rigid approach to the question presented.” In a series of decisions over decades, that court has rejected “a standalone exception to Noerr-Pennington immunity for petitions containing fraudulent misrepresentations.”

Next, the Ninth Circuit falls under what the petitioners describe as the sham approach. The Ninth Circuit recognizes “three situations where the sham exception applies,” one of which “consists of making intentional misrepresentations” in an adjudicative setting. The Seventh Circuit is argued falls into this camp, too, although it has at times taken the freestanding exception approach discussed in the following section.

The third group of Circuits “have expressly recognized a distinct misrepresentation exception,” separate and apart from the sham exception. The circuits in this camp have drawn support for their rule from this Court’s decision in Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1965), wherein, the Court held that “enforcement of a patent procured by fraud on the Patent Office may” violate the antitrust laws “provided the other elements necessary to” establish the claim are proved. The circuits that have recognized a freestanding fraud exception include the First, Second, Fifth, Eleventh, and Federal Circuits.

The petitioners assert that given the disagreement among circuits but lack of a single approach for determining how the Noerr-Pennington doctrine regards this sort of deceptive conduct, the Supreme Court should address this issue.

Third Circuit Decision. The petitioners also presented arguments that the Third Circuit “has fundamentally misapplied Noerr-Pennington.” The petitioners assert that both caselaw and constitutional avoidance principles support the position that “there is no immunity for a company that successfully defrauds the government in an adjudicatory proceeding for the purpose of suppressing competition.”

The petitioners aver that the court should follow its decision in California Motor that “[m]isrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process” and its holding in Walker Process that a company can be held liable under the antitrust laws based on its “enforcement of a patent procured by fraud on the Patent Office.

The Case is No. 25-45.

Attorneys: Kellie Lerner Shinder Cantor (Shinder Cantor Lerner LLP) for Chatom Primary Care, PC.

Companies: Chatom Primary Care, PC; Merck & Co., Inc.

News: Antitrust