Summary Judgment in Antitrust Litigation Brought Against Sanofi U.S.

Cleary Gottlieb was counsel to Sanofi U.S. in successfully defending against federal antitrust litigation filed by Eisai, Inc. seeking billions of dollars in damages for alleged monopolization related to Sanofi U.S.’s anticoagulant drug, Lovenox. In particular, Eisai challenged Sanofi U.S.’s market share discounts and alleged that they were de facto exclusive dealing contracts. The court held that price was the predominant mechanism of alleged exclusion in the contracts, and that the “price cost test” therefore applied. Because there was no dispute that prices were at all times above cost, the court granted summary judgment in favor of Sanofi U.S. The court also noted in the alternative that, even if the price cost test did not apply, Sanofi U.S. was still entitled to summary judgment both because Eisai had not shown that it was substantially foreclosed from the market and because Eisai had not established that it had suffered antitrust injury.