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BREAKING: Third Circuit Dismisses Antitrust Suit Concerning Marketing of Lovenox

Earlier today, the Third Circuit Court of Appeals upheld the decision of the District of New Jersey trial court dismissing the antitrust claims lobbed against Sanofi-Aventis by its rival pharmaceutical company Eisai.  The complaint alleged that Sanofi-Aventis harmed competition in the market for anticoagulant drugs by preventing hospitals from using a drug other than Sanofi-Aventis’s Lovenox.  The court noted at the outset that the “antitrust laws are concerned with the protection of competition, not competitors.”  The court held that there was no evidence that the actions Eisai complained of caused harm to the competitive nature of the anticoagulant market, and “[t]o the extent that Sanofi’s conduct caused damage to its competitors, that is not a harm for which Congress has prescribed a remedy.”

Eisai alleged that Sanofi-Aventis set up a de facto exclusive dealing arrangement through its practice of giving market-share and volume discounts to group purchasing organizations (GPOs), and then requiring the GPOs to refrain from limiting access to Lovenox in their formularies in order to maintain their discounts.  A formulary is a “list of medications approved for use in the hospital based on factors such as a drug’s cost, safety, and efficacy.  The formulary access clause in the Lovenox contract required customers to provide Lovenox with unrestricted formulary access for all FDA-approved Lovenox indications so that the availability of Lovenox was not more restricted or limited than the availability” of any rival drugs.  The court rejected Eisai’s “novel theory” that Sanofi-Aventis’s contracts with GPOs foreclosed competition in the anticoagulant market by bundling demand of Lovenox across different indications.  Lovenox, unlike any other drug of its kind on the market, was indicated by the FDA for use in patients with heart issues; Eisai argued that that unique indication produced “incontestable demand” for Lovenox for certain patients, and Sanofi-Aventis was leveraging that incontestable demand to foreclose competition for patients that could use a different anticoagulant.  The court, however, noted that a “bundling arrangement generally involves discounted rebates or prices for the purchase of multiple products,” and the rationale of the bundling and tying lines of cases do not apply when rebates are only being offered for one product.  Moreover, there was no evidence in the record that Sanofi-Aventis’s practices were foreclosing competition: “Lovenox customers had the ability to switch to competing products.  They simply chose not to do so.”