Louisiana Wholesale Drug Co. v. Shire LLC
754 F.3d 128
2d Cir.2014Background
- Plaintiffs are wholesale pharmaceutical dealers who purchased unbranded AXR from Teva and Impax under Shire settlements.
- Shire holds AXR patents; Teva and Impax sought FDA approval for generic AXR under Hatch-Waxman, triggering patent litigation actions.
- In 2006, Shire settled with Teva and Impax; settlements required a three-year market abstention and granted licenses to Teva and Impax starting in 2009.
- If FDA did not approve by that time, Shire would supply Teva's and Impax's needs for unbranded AXR for resale.
- By 2009 Teva and Impax began purchasing unbranded AXR from Shire; later alleged shortfalls allegedly affected wholesale prices.
- District court dismissed LWD’s complaint under Rule 12(b)(6); the dismissal was upheld on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to deal under Aspen Skiing framework | LWD says settlements removed patent barrier, creating duty to deal | No duty to deal; terms do not resemble Aspen Skiing facts | Aspen Skiing not satisfied; no duty to deal |
| Contracts with Teva/Impax as antitrust violation | Breach of agreements harmed competition and created monopoly power | Actions within patent regime immune from antitrust scrutiny | No cognizable antitrust claim; breaches not enough |
| Effect of Actavis on Tamoxifen precedents | Actavis abrogates Tamoxifen, broadening scrutiny | Court did not rely on Actavis to decide; not controlling here | Actavis not controlling; claim rejected on other grounds |
Key Cases Cited
- Tamoxifen Citrate Antitrust Litig., 466 F.3d 187 (2d Cir. 2006) (Tamoxifen invalidated by Actavis; reverse payments scrutinized)
- Actavis, Inc. v. FTC, 133 S. Ct. 2223 (U.S. 2013) (reverse payments potentially anticompetitive; not immune under patent law)
- Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (U.S. 1985) (duty to deal where monopolist terminates a prior course of dealing)
- United States v. Colgate & Co., 250 U.S. 300 (U.S. 1919) (long-recognized right to deal; exception only for terminating prior dealing)
- Trinko, United States v., 540 U.S. 398 (U.S. 2004) (duty to deal limited; Aspen Skiing confines reach)
- In re Elevator Antitrust Litig., 502 F.3d 47 (2d Cir. 2007) ( Aspen-like duty analysis; not controlling here)
- Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (U.S. 2004) (antitrust need for anticompetitive conduct with monopoly power)
- Pac. Bell Tel. Co. v. Linkline Commc'ns, Inc., 555 U.S. 438 (U.S. 2009) (distinction between regulation and antitrust duty to deal)
- Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (U.S. 1993) (even malicious conduct alone does not state antitrust claim)