Court declines to dismiss antitrust claims other than restraint of trade count
Ethypharm S.A. France v. Abbott Laboratories, Civ. No. 08-126-SLR, February 20, 2009.
Robinson, J. Defendant’s motion to dismiss is granted in part and the common law restraint of trade count is dismissed without prejudice. The motion is denied in all other respects.
Parties are pharmaceutical companies that manufacture and sell through certain licensing agreements competing brand name fenofibrate products. Defendant owns the exclusive rights to market Tricor in the United States. Plaintiff asserts, among other things, that Defendant wrongfully interfered with its agreement with Reliant, a company licensed for Plaintiff’s IP rights in the United States who agreed to market fenofibrate in the United States. Defendant asserted a counterclaim of infringement against reliant, which Plaintiff claims is a sham. Plaintiff alleges Sherman Act violations as well as unfair competition; tortious interference and common law restraint of trade. The motion, as framed by the Court, poses whether a foreign name-brand drug manufacturer, which does not itself market and distribute its product in the United States but does so through an exclusive United States distributor, is entitled to avail itself of the protection of the antitrust laws for the purpose of challenging the conduct of a manufacturer of a competing brand name drug. It finds that the injury alleged is intertwined with the injury Defendant allegedly sought to inflict on the fenofibrate market and declines to dismiss the Sherman Act claims. It further finds unfair competition and tortious interference claims sufficiently pled. Plaintiff fails to refute Defendant’s contention that the Delaware legislature has codified an unlawful restraint of trade in the Delaware Antitrust Act which dissolved the private action at common law. Thus the count for common law restraint of trade is dismissed without prejudice. The motion to dismiss is denied as to all other counts.
