Motion to Dismiss Denied in Remicade Antitrust Suit

The District Court for the Eastern District of Pennsylvania has denied Johnson & Johnson and Janssen’s (“J&J”) motion to dismiss antitrust claims filed by Walgreens and Kroger concerning sales of J&J’s Remicade.  In the case, the retailers allege antitrust injury based on higher prices paid to distributors Amerisource Bergen and Cardinal Health who, in turn, are charged higher prices by J&J for Remicade due to alleged anticompetitive behaviors.

According to the decision, J&J moved to dismiss the retailers’ claims on two grounds.  First, J&J argued that the retailers’ claims failed to sufficiently allege antitrust injury.  On this ground, J&J’s “primary argument [was] that [the retailers] fail to plead specific facts showing that Pfizer and Merck were excluded from competing in the infliximab market by [J&J’s] Biosimilar Readiness Plan, rather than choosing not to compete.”  As with a similar motion in a case brought by Pfizer, the Court denied the motion to dismiss, finding the complaint “plainly and repeatedly emphasizes that, as a result of the anticompetitive behavior,” Plaintiffs have “paid inflated prices for those products.”

In addition, J&J argued that the retailers lacked antitrust standing because they do not have consent from the distributors to pursue these claims, as allegedly required under certain agreements.  In this regard, the Court converted J&J’s motion to one for summary judgment, and will hear additional evidence and briefing.

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