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Court Rules Antitrust Claim May Proceed Against Celgene

On December 22, 2014, a federal district court in New Jersey found that Mylan Pharmaceuticals, Inc. (“Mylan”) alleged facts sufficient to plead an antitrust claim under Section 2 of the Sherman Act against defendant, Celgene Corporation (“Celgene”), for denying a generic rival access to samples of its branded drugs that are distributed pursuant to a Risk Evaluation and Mitigation Strategies (“REMS”) program.  Citing the Supreme Court’s decisions in Otter Tail Power Co. v. United States, and other relevant cases that discuss the scope of an affirmative duty to deal with rivals, the District Court preserved the Plaintiff’s Section 2 claim by finding that Celgene’s conduct fit within one of the limited exceptions to the general rule that there is no duty to deal with competitors, concluding that antitrust liability could be found without allegations of a prior course or history of dealing with the Plaintiff.  The attached antitrust alert, “Court Rules Antitrust Claim May Proceed Against Celgene,” highlights the noteworthy aspects of this decision, including the fact that this is one of the few cases to address potential liability under Section 2 in connection with FDA-required REMS programs and is likely to be instructive on such issues as litigation in this area unfolds.  The Court’s analysis also adds to the continuing debate over the application of Section 2 to situations involving a refusal to deal with a rival, as lower courts continue to adopt disparate interpretations of the Supreme Court’s 2004 decision in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko.

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Dionne Lomax