Antitrust Litigation

Actelion Pharms. v. Apotex (D.N.J.) 

• Dechert served as lead counsel in antitrust litigation based on demands by generic drug manufacturers that Actelion supply samples of a drug product covered by an FDA-mandated REMS program to generic companies. 
• The dispute was resolved through the negotiation of acceptable supply agreements for the relevant product. 

Allan Frank, O.D. v. Davis Vision, HVHC Inc., and Highmark Health (E.D. Pa.) 

• Defended Highmark Health in a putative antitrust class action in which subsidiary Davis Vision was accused of anticompetitive conduct including unlawfully requiring independent eyecare providers to order lenses and frames at an inflated cost from Davis Vision affiliated labs and depressing the reimbursement rates they are paid. 
• Dechert filed motions to dismiss and to compel arbitration on behalf of the defendants in response to the class action complaint. Rather than respond to the motion, the class representative plaintiff voluntarily dismissed the class action complaint.  

Anderson News v. Curtis Circulation, et al. (S.D.N.Y. and Second Circuit)

• In a rare antitrust group boycott conspiracy case, Dechert won summary judgment for Curtis Circulation Company, the nation’s largest national distributor of single-copy magazines, in a nearly decade-old case alleging an unlawful conspiracy in the magazine industry. 
• Dechert developed and relentlessly implemented a strategy to build a strong record for summary judgment. The team successfully took the lead in the district court and at the Second Circuit in briefing and arguing what turned out to be the winning argument.
• In a 3-0 decision the Second Circuit affirmed summary judgment and clarified its proper application in antitrust conspiracy cases where the record contains circumstantial evidence that is consistent with the alleged conspiracy.

Avastin/Lucentis Case (Paris Court of Appeal/French Competition Authority [FCA]) 

• Dechert represented Roche in an FCA investigation relating to an alleged abuse of collective dominance with Novartis concerning the “off label use” of Roche’s leading oncology drug in the ophthalmic field, where Novartis markets its blockbuster drug for wet age-related macular degeneration. 
• This landmark case raised important questions relating to the inclusion of off-label drugs in the definition of the relevant market, the extent to which a marketing authorization holder can oppose or report on the off-label use of its product, and innovation in the pharmaceutical sector. Prior to the case, there was no precedent that fully addressed the overlap of intellectual property, regulatory, and competition law issues.
• The case is based on the peculiarity of the French regulatory framework regarding off-label use, thus requiring a unified approach involving antitrust and regulatory specialization – both areas in which Dechert has the ability to leverage leading guidance, giving the client a strategic advantage. 
• In a recent decision, the FCA fined Novartis €385 million; but our client Roche’s fine was significantly less, at €59.7 million. Dechert will continue to represent Roche before the Paris Court of Appeal.

City of Providence v. Bausch Health Companies Inc. (N.D. Cal.)

• Represented PDL BioPharma, Inc. in a “reverse payment” antitrust case involving a diabetes drug. Plaintiffs challenged a patent settlement in which the generic manufacturer allegedly agreed to delay the launch of its generic product in exchange for an agreement by the patent holder not to launch an authorized generic. 
• After filing a motion to dismiss, we successfully persuaded the plaintiffs to dismiss their claims against our client. 

Doheny Enterprises Inc v. Clearon Corporation (E.D. Wi.)

• Dechert represented Clearon Corporation, a pool chemicals manufacturer, in a case brought by Doheny Enterprises Inc., a pool supplies reseller, in the US District Court for the Eastern District of Wisconsin.
• Doheny alleged that Clearon attempted to monopolize a “market” for the sale of certain pool cleaning chemicals on Amazon and violated the Wisconsin Fair Dealership Act. Doheny further alleged that Clearon deprived it of inventory and in the process functionally excluded Doheny from selling goods on Amazon. 
• Clearon obtained a favorable settlement through aggressive advocacy after the plaintiff amended its complaint in response to a motion to dismiss. 

Federal Trade Commission v. Endo Pharmaceuticals Inc. (E.D. Pa.) 

• Defended Endo Pharmaceuticals in the first-ever Federal Trade Commission “reverse payment” litigation challenge to a patent settlement agreement including a “no authorized generic” provision. 
• The FTC’s lawsuit sought a substantial disgorgement remedy in addition to forward-looking injunctive relief and covered settlements involving two separate pharmaceutical products. 
• Dechert’s novel litigation strategy resulted in a settlement of all of Endo’s litigation with the FTC with no admissions of wrongdoing, no monetary payment and a consent decree containing terms consistent with Endo’s current approach to patent settlements. 

Internal Medicine Nephrology v. Bio-Medical Applications, Inc., et al. (S.D. Ind.)

• Dechert represented Fresenius Kidney Care, one of two leading dialysis providers in the United States, in defense of claims that it monopolized the market for dialysis services in Terre Haute, Indiana in violation of Section 2 of the Sherman Act and a host of state law tort claims.
• Dechert secured a dismissal of all antitrust claims on the grounds that the plaintiff lacked antitrust standing. In its amended complaint, plaintiff abandoned its antitrust claims, re-asserting only certain state law claims based on the Court’s diversity jurisdiction. The Court also granted Fresenius’s motion to dismiss many of the remaining claims.
• The case settled favorably after the plaintiff dropped its claims against Dechert’s client with prejudice rather than face the counterclaims we had filed.

In re 2021 Short Squeeze Trading Litigation (S.D. Fl) 

• Dechert represented Interactive Brokers LLC in the multidistrict litigation that alleged that various market participants, including brokerages, market makers, and clearinghouse firms, conspired to prevent retail investors from buying certain stocks, colloquially referred to as “meme” stocks, in order to (among other things) assist institutional investors that had short positions in those stocks. 
• The Court granted the Defendants’ motion to dismiss the complaint without prejudice on November 17, 2021.  After further discussions with Plaintiffs’ counsel, Interactive Brokers was not named in the Amended Complaint and was dismissed from the case entirely.
• There were also some regulatory investigations in which Dechert was also involved.

In re Generic Pharmaceuticals Pricing Antitrust Litigation (E.D. Pa.)

• Defending two generic pharmaceutical companies in numerous antitrust class actions, and actions filed by state attorneys general, alleging that pharmaceutical companies entered into a price-fixing conspiracy involving well over 100 generic pharmaceutical products, as well as parallel criminal investigations by the Department of Justice Antitrust Division.

In re Hydrogen Peroxide Antitrust Litigation (3d Cir.)

• Represented FMC Corporation in direct and indirect purchaser class actions alleging an industry-wide and international price-fixing conspiracy. 
• In a watershed ruling, the U.S. Court of Appeals vacated class certification and tightened the standard requiring courts to consider evidence opposing class treatment under Federal Rule of Civil Procedure 23.
• This decision is an important reversal of the trend in the Third Circuit that favored plaintiffs seeking class certification.
• Dechert took the lead in developing the defendants’ economic evidence on which the decision hinged. While most other defendants settled before the Third Circuit decision was handed down, FMC “stuck it out” and settled for a much smaller percentage of sales following the ruling.
• Dechert also obtained summary judgment against two opt outs with respect to foreign purchases.

In re Lidoderm Antitrust Litigation (N.D. Cal.)

• Dechert represented Endo Pharmaceuticals in the investigation by a group of state attorneys general into a 2012 patent litigation settlement agreement between Endo, Watson Laboratories, Allergan Finance LLC, and Teikoku Pharma USA, Inc. regarding the pharmaceutical product Lidoderm. 
• Endo concluded its lengthy settlement negotiations with the states on favorable terms that limited the injunctive relief provided for in the settlement to what Endo had already agreed to do in relation to its prior settlement agreement with the Federal Trade Commission.
• Dechert also successfully led Endo in follow-on litigation filed by Blue Cross/Blue Shield of Michigan under the Michigan state antitrust law. The parties entered into a confidential settlement agreement on favorable terms to Endo and the Court dismissed the case with prejudice.

In re Processed Eggs Litigation (E.D. Pa.) 

• Defended Pennsylvania-based egg producer R.W. Sauder in US$1.1 billion antitrust class action after a powerful group of plaintiff law firms sued 13 egg producers, including Sauder, alleging a conspiracy to reduce the domestic supply of eggs. 
• A Dechert trial team handled a six-week jury trial in Philadelphia Federal Court, securing a defense verdict in which the jury found that Sauder was not part of any conspiracy.
• Jury verdicts in antitrust class action disputes are extremely rare, with a defense victory even more unusual. Given the prospect of facing exposure for joint and several liability and treble damages, most defendants chose to settle with plaintiffs before or during trial.  
• Keen to avoid a "battle of the experts", our antitrust lawyers vigorously defended Sauder by demonstrating the company’s independence from the other defendants and from an industry trade association. 
• Eschewing jargon and complex econometric analysis typical of antitrust litigation, Dechert’s team successfully distilled the economics of a complex business into a form that was digestible for the jury. This strategy proved key in securing a winning verdict for Sauder. 
• The class plaintiffs did not file an appeal of the jury’s verdict as to Sauder. 

In re Titanium Dioxide Antitrust Litigation (D. Md.; N.D. Cal.; D. Del.) 

• Represented DuPont, a chemical company, in a series of class action and opt-out lawsuits alleging price-fixing of titanium dioxide and seeking billions of dollars in damages.
• A Dechert partner reduced damages by 70 percent in the direct purchaser case by excluding customers with arbitration provisions from the class, and significantly narrowed the indirect purchaser claims through two successful motions to dismiss that resulted in a favorable settlement (US$550,000).
• In an opt-out case brought by Valspar, the Dechert partner split the case through a motion to transfer, thus reducing Valspar’s leverage, and later achieved a summary judgment victory in a decision that was affirmed by the Third Circuit and set new precedent for conspiracy standards in oligopolistic markets.

In re Lidoderm Antitrust Litigation (N.D. Cal.) 

• Represented Endo Pharmaceuticals in the investigation by a group of state attorneys general into a 2012 patent litigation settlement agreement regarding a pharmaceutical product.
• Endo concluded its lengthy settlement negotiations with the states on favorable terms that limited the injunctive relief provided for in the settlement to which Endo had already agreed in a prior settlement agreement with the FTC. 

In re Lipitor Antitrust Litigation (D.N.J.) 

• Represented Japanese pharmaceutical company Daiichi Sankyo Co. Ltd. and its U.S. subsidiary Daiichi Sankyo, Inc., in a complaint brought by a class of direct purchasers alleging that defendants engaged in sham litigation and entered into an unlawful settlement agreement. 
• Nearly 30 cases were consolidated in multi-district litigation in the District of New Jersey. 
• We succeeded in getting our clients dismissed from the case. Plaintiffs petitioned the U.S. Supreme Court for certiorari, which was denied, bringing our clients involvement in the cases to an end with zero liability. 

In re Paxil Antitrust Litigation (E.D. Pa.)

• Represented a Fortune 100 innovator pharmaceutical company in a series of monopolization and attempted monopolization cases, including class and individual actions, based on allegations of sham patent litigation and unlawful intellectual property strategies. 
• The cases were settled and the related FTC investigation was closed without further action. 

In re Relafen Antitrust Litigation (D. Mass.) 

• Defended a Fortune 100 innovator pharmaceutical company in a series of monopolization and attempted monopolization cases, including class and individual actions, based on allegations of sham patent litigation and unlawful intellectual property strategies. 
• The cases were settled favorably. 

In re Rail Freight Fuel Surcharge Antitrust Litigation (D.D.C.)

• Represented CSX in a high-profile MDL against Class I railroads alleging that they conspired to set and impose fuel surcharges.
•  After the district court certified the class, the D.C. Circuit vacated and remanded, setting forth a novel proposition about “false positives” and uninjured class members.
• On remand, after further expert discovery and a multi-day evidentiary hearing, the district court denied plaintiffs’ motion for class certification. The D.C. Circuit affirmed.

In re Southeastern Milk Antitrust Litigation (E.D. Tn)

• Defeated class certification on behalf of Dean Foods Company in a case brought by retailers alleging a conspiracy among milk processors and milk cooperatives and won summary judgment on four of five claims.
• On the eve of a five-week jury trial, Food Lion, the last remaining retailer in the case, agreed to dismiss the case and settle on terms favorable to Dean Foods. 

In re Domestic Drywall Antitrust Litigation (E.D. Pa.) 

• Led the defense for New NGC, Inc. (d/b/a National Gypsum) in a series of consolidated direct and indirect purchaser class action cases, and an opt-out case brought by twelve national homebuilders, alleging a conspiracy to fix prices in the gypsum wallboard, or drywall, market over the 2011-2013 period (and possibly thereafter). 
• National Gypsum resolved the direct and indirect purchaser class action cases and then the homebuilders’ opt-out case through a confidential but favorable settlement. 

TravelPass Group LLC et al v. Caesars Entertainment Corporation et al. (E.D. Tex.)

• Led the defense for Marriott International Inc. against a complaint brought by TravelPass Group, an affiliate online travel agency, alleging a conspiracy by major U.S. hotel chains to restrict branded keyword bidding in online search advertising. 
• After five days of an antitrust jury trial, the parties reached an agreement to end the litigation of both TravelPass’s allegation that Marriott had violated Section 1 of the Sherman Act and Marriott’s counterclaims that TravelPass had engaged in trademark infringement and false advertising based on its deceptive practices in which it presents itself as Marriott.
• The highly favorable conclusion completely vindicated Marriott. TravelPass publicly acknowledged that Marriott did not participate in any unlawful activity and formally apologized to Marriott for any harm to Marriott’s reputation stemming from TravelPass’s allegations.
• The case raised complex and novel questions about the interplay of antitrust laws and internet search engine advertising and how those issues should be evaluated by the jury.
• With Marriott the only antitrust defendant to proceed to trial, Dechert and its co-counsel drove the trial strategy that ultimately resulted in TravelPass withdrawing its claims and issuing a public apology.  

Cartel Regulation 2022 

Published by Lexology: Getting the Deal Through, the guide provides an in-depth, practical review by jurisdiction of relevant statutes, enforcement actions, immunity and leniency options, and contested proceedings and penalties, in addition to highlights on recent developments. The guide also addresses strategies for mitigating risks and limiting potential fines.

Dechert antitrust co-chair Steven Bizar and associate Julia Chapman have authored the guide’s chapter on the United States jurisdiction while antitrust partner Mélanie Thill-Tayara and national partner Marion Provost have authored the European chapter.

Review the U.S. chapter, the EU chapter or the complete guide today.

Private Antitrust Guide: French Chapter

In the 2022 edition of the Europe, Middle East and Africa Antitrust Review, part of the Global Competition Review Insight book series, partner Mélanie Thill-Tayara and national partner Marion Provost review the principles, rules and procedures applicable to antitrust litigation in France. The article aims at providing a practical and objective – yet critical – analysis of the state of antitrust private litigation in France, which is a fast-developing area of law that raises multiple legal, economic and practical issues.

Review the full guide. 

Pharmaceutical Antitrust 2021 Guide 

Antitrust/competition partners Mike Cowie, George Gordon and Mélanie Thill-Tayara are the editors of Pharmaceutical Antitrust. The insightful and easy-to-use reference guide published by Lexology: Getting the Deal Through, provides comparative transatlantic analysis and insights into this industry. Dechert's antitrust lawyers also authored the guide's European Union, German, United Kingdom and United States chapters.

Review the full guide.