District Court Grants Summary Judgment for Cleary Gottlieb Client in Case Challenging Market Share Discount

April 10, 2014

In its March 28, 2014 opinion (unsealed on April 4), the U.S. District Court for the District of New Jersey granted summary judgment in favor of Cleary Gottlieb client Sanofi U.S. in an important decision involving a challenge to Sanofi U.S.’s “market share” discounts.

The plaintiff, Eisai, Inc., sought billions of dollars in damages for alleged monopolization related to Sanofi U.S.’s anticoagulant drug, Lovenox. Eisai, the distributor of a competing anticoagulant, Fragmin, challenged Sanofi U.S.’s market share discounts and alleged that they were de facto exclusive dealing contracts. The case centered on the appropriate test for antitrust liability, and the District Court’s ruling is the first to interpret the Third Circuit’s decision in ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012). The court held that price was the “predominant mechanism of alleged exclusion” in the contracts, and that the “price-cost test” therefore applied.