The Third Circuit Court of Appeals recently heard oral arguments in Mylan Pharmaceuticals, Inc. v. Warner Chilcott Public Limited Co. (No. 15-2236), only the second case in which an appellate court has considered product hopping by pharmaceutical companies under the antitrust laws. The panel’s questioning suggests that the Third Circuit may be prepared to distinguish—or to part ways entirely with—the Second Circuit’s decision in New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638 (2d Cir. 2015) (better known as the Namenda decision), which upheld product hopping as a basis for antitrust liability. Such a decision would be both a significant—and just—advance in this unsettled area of law requiring an appropriately fact-intensive inquiry focused on actual competitive effects (or lack thereof) in the market at issue.
Reproduced with permission from Antitrust & Trade Regulation Report, 110 ATRR 912, 7/29/16. Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com