As we previously reported, Magistrate Judge Hall issued a Report and Recommendation (“R&R”) on February 10, 2023 denying Amgen’s motion to dismiss Regeneron’s antitrust claims in Regeneron Pharmaceuticals, Inc. v. Amgen Inc., 22-cv-697 pending in the district of Delaware. On February 24, 2023, Amgen filed its Objections to the Report & Recommendation. In its Objections, Amgen argued that the district court should overrule the R&R and dismiss Regeneron’s Complaint for failure to sufficiently plead foreclosure and anticompetitive bundling. With respect to the foreclosure claim, Amgen argued that Regeneron’s Complaint pleads that Amgen’s conduct foreclosed Regeneron from competing for 22% of the market, which Amgen contends does not meet the standard for showing that Regeneron was “substantially foreclosed.” Amgen also argued that the R&R erred in not recommending dismissal of the bundling claim, because Regeneron failed to plead high market share or other indicia of monopoly power for ENBREL, one of the alleged bundled drugs, and the contracts Amgen submitted show no bundled rebates for Otezla®, the other alleged bundled drug. Regeneron filed its Response to Amgen’s Objections to the R&R on March 10, 2023. In its Response, Regeneron notes that Amgen’s arguments related to the bundling claim rely on extra-Complaint evidence, not appropriate for the Court to consider at the motion to dismiss stage, and that the question of whether Regeneron was “substantially foreclosed” is a factual one, and that Regeneron’s allegations in their Complaint is not insufficient as a matter of law.
In a March 21, 2023 opinion, Judge Andrews adopted the magistrate judge’s R&R, overruled Amgen’s objections, and denied Amgen’s motion to dismiss. The Court agreed that the extra-Complaint evidence is not the sort of evidence the Court can consider on a motion to dismiss. The Court also found that Regeneron sufficiently pled the bundling claim, including allegations that support the market power assertions about ENBREL. On the issue of foreclosure, the Court also agreed with the magistrate judge that the foreclosure percentages are not determinative at the pleading stage.