Life Sciences Antitrust

Our experience includes representing:

Antitrust Litigation

• Surescripts, which pioneered the development of electronic transmission of prescriptions, in a lawsuit brought by the US FTC alleging monopolization of e-prescription markets through allegedly exclusionary contracts. Latham obtained a dismissal of the FTC’s disgorgement demand and is continuing to litigate the FTC’s demand for injunctive relief as well as a follow on class action brought by a putative class of pharmacies brought in the Northern District of Illinois. The outcome of this matter will have significant ramifications for the US healthcare industry and the evolving body of law regarding two-sided markets. (Federal Trade Commission v. Surescripts, LLC; In re Surescripts Antitrust Litigation)
• Lundbeck, an international pharmaceutical company, in antitrust lawsuits filed by the US FTC and the State of Minnesota challenging Lundbeck’s acquisition of an exclusive license to manufacture and sell NeoProfen in the United States. Latham won a defense judgment for Lundbeck in a rare bench trial on the merits of a government merger challenge. The FTC, asserting a merger-to-monopoly theory, sought to force a divestiture and the disgorgement of profits it estimated at over US$100 million. The US Court of Appeals for the Eighth Circuit affirmed unanimously. Latham also represented Lundbeck in a series of antitrust actions for treble damages, brought by various hospitals on behalf of direct purchasers, which settled on favorable terms for the client. (Federal Trade Commission v. Lundbeck Inc. / State of Minnesota v. Lundbeck Inc.)
• Actavis Elizabeth, a pharmaceutical company, in a litigation filed in the US District Court for the District of New Jersey. Plaintiffs/counterdefendant alleged that its refusal to sell samples of Tracleer, a branded drug used for the treatment of pulmonary arterial hypertension, to the defendants for bioequivalence testing is per se lawful under antitrust laws. Actavis, not yet a named party, along with its two co-defendants, then filed counterclaims against the plaintiff asserting that its refusal was anticompetitive conduct in violation of Section 2 of the Sherman Act. Latham was instrumental to bringing this case to the attention of the FTC, and lead the joint defendants in a presentation that resulted in the FTC filing an amicus brief in the case. Latham led the development of a joint defense and prevailed at oral argument, where the court favorably ruled that a brand pharmaceutical firm’s refusal to deal with its generic competitors can be constituted as unlawful conduct under the antitrust laws. The case was a landmark decision given that Supreme Court Section 2 precedent was widely thought to preclude such clams. Following the ruling, the case settled. (Actelion Pharmaceuticals, Ltd. v. Apotex Inc.)
• Express Scripts Holding Company, a pharmacy benefit manager, in an antitrust claim filed in the US District Court for Minnesota, alleging violations under Section 1 and 2 of the Sherman Act. Plaintiffs alleged that Gilead entered into unlawful agreements with Express Scripts and other participants to limit distribution of Letairis, resulting in anticompetitive behavior in the commercial market for pharmaceutical ambrisentan. The Court granted Latham's motion to dismiss, and plaintiffs did not appeal. (Natco Pharma Limited v. Gilead Sciences, Inc.)

Merger Control

• Grail, an American biotechnology company, in obtaining global merger clearance for its sale to Illumina, involving: the first Art. 22 referral request to the EC; an appeal before the General Court of the EC’s decision to assert jurisdiction; interactions with local competition authorities in the EU, including an unprecedented challenge before France’s highest administrative Court; and a highly unusual withdrawal by the US FTC of its own lawsuit. (Federal Trade Commission v. Illumina, Inc.)
• ANI Pharmaceuticals, a specialty pharmaceutical company, to obtain US antitrust clearance in connection with ANI’s acquisition of Novitium, a pharmaceuticals company specializing in niche generic products.
• Momenta Pharmaceuticals, a biotechnology company, in obtaining US antitrust clearance for its sale to Johnson & Johnson.
• Amneal Pharmaceuticals in obtaining US antitrust clearance for its merger of equals with Impax Laboratories, a developer, manufacturer, and marketer of bioequivalent pharmaceutical products. The transaction cleared after a Second Request.
• Integra LifeSciences in obtaining global antitrust clearance for its acquisition of the Codman Neurosurgery business of Johnson & Johnson, a portfolio of devices focused on advanced hydrocephalus, neuro-critical care and operative neurosurgery. The deal cleared after a Second Request and was cleared in Spain with only limited remedies.
• Gavis Pharmaceuticals in obtaining US antitrust clearance for its sale to Lupin Ltd., India's third largest drug maker by sales. The transaction cleared after a Second Request.
• Eli Lilly in obtaining global antitrust clearance in seven jurisdictions for its US$5.4 billion acquisition of Novartis' Animal Health business. This transaction, as part of a series of interconnected transactions involving Eli Lilly, GSK and Novartis was awarded Matter of the Year at the 2015 GCR Awards.
• ArthroCare, a developer and manufacturer of minimally invasive surgical products, in obtaining antitrust clearances for its sale to Smith & Nephew. The deal was granted early termination and combined two of the four competitors in the product market, including the 50% share leader.