Mylan Pharmaceuticals, Inc. v. Warner Chilcott, PLC, et al. Appeal

In September 2016, the Third Circuit affirmed a Pennsylvania Federal Court’s April 2015 dismissal of Mylan Pharmaceutical’s (Mylan) suit against Compass Lexecon client Warner Chilcott, PLC (Warner Chilcott), finding that Mylan had defined the oral tetracycline market too narrowly and that Warner Chilcott’s Doryx product had at most an 18 percent share of the oral tetracycline market. Compass Lexecon was retained by counsel for Warner Chilcott in the Doryx Antitrust Litigation, which involved monopolization and attempted monopolization claims brought by a direct purchasers class, an indirect purchasers class, individual retailers, and Mylan. Warner Chilcott distributes and promotes branded Doryx in the United States under a license agreement with Mayne Pharmaceuticals (Mayne). Mylan manufactures generic Doryx. Plaintiffs alleged that Warner Chilcott and Mayne sought to protect their monopoly through “product hopping”, the practice of changing the drug in ways that provide no significant improvement, but prevent pharmacists from automatically substituting generic equivalents. Previously, defendants entered into modest settlements with direct purchasers, indirect purchasers, and retailer plaintiffs, leaving Mylan as the only plaintiff. In April 2015, the Court granted defendants’ motion for summary judgment, ruling that there was no “economically plausible evidence to prove that defendants hold monopoly power in the relevant market,” and that “Defendants did not exclude competition when they reformulated Doryx, introduced new versions of Doryx, and withdrew old versions.” Compass Lexecon experts in this litigation were Janusz Ordover on class certification issues, Dennis Carlton on liability issues, and Fredrick Flyer on damages. The Compass Lexecon team included Jay Ezrielev, Deborah Healy, Lynette Neumann, Bradley Reiff and Heather Spang in our Chicago and Washington D.C. offices. Compass Lexecon worked with Mark Gidley and Jack Pace of White & Case LLP.