Antitrust complaint survives motion to dismiss
Rochester Drug Co-Operative, Inc., et al. v. Braintree Laboratories, Civ. No.07-142-SLR, May 18, 2010.
Robinson, J. Defendant’s motion to dismiss antitrust complaint alleging sham litigation is denied.
Plaintiffs are direct purchasers of MiraLax or the generic PEG, products which are used to treat constipation. Plaintiff claims the earlier ANDA litigation was a sham designed to delay the FDA’s approval of GlycoLax and improperly maintain monopoly power. The ANDA case was voluntarily dismissed on June 3, 2004, and the FDA issued its approval for GlycoLax shortly thereafter. The court had earlier concluded that even an admittedly weak patent enjoys a presumption of validity and previously held that Braintree was immune from antitrust liability under Noerr-Pennington. The court finds that the amended complaint sufficiently conveys a causal nexus between the injury alleged and Braintree’s monopolistic behavior.
