Eisai v. Sanofi Aventis U.S.

In Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394 (3d Cir. 2016), the Third Circuit rejected an antitrust claim about tying, and affirmed a summary judgment in favor of a drug manufacturer and its practice of discounting medication to gain an advantage over rivals among hospital buyers of the product.

The plaintiff challenged a loyalty arrangement by which the defendant entered into agreements with hospitals offering incremental discounts to hospitals which purchased a certain percentage of its medications from the defendant. Specifically, the defendant offered (1) a flat discount of 1% if a hospital purchased less than 75% of its drugs from the defendant and (2) discounts ranging from 9 to 30% if the hospitals purchased over 75% of its drugs from the defendant. This created strong incentives for hospitals to buy the defendant's drugs, but the court found the fact that the hospitals "were not contractually obligated to do so" to make this lawful. Also, if a hospital terminated the agreement, then it could still buy the defendant's drugs at wholesale prices.

The three-judge panel held without dissent that:

“  |  Without evidence of substantial foreclosure or anticompetitive effects, Eisai has failed to demonstrate that the probable effect of Sanofi's conduct was to substantially lessen competition in the relevant market, rather than to merely disadvantage rivals. Unlike in LePage's, Dentsply, and ZF Meritor, Lovenox customers had the ability to switch to competing products. They simply chose not to do so. We will therefore affirm the District Court's grant of summary judgment in favor of Sanofi under a rule of reason analysis.  |  ”

|
|

Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394, 407-08 (3d Cir. 2016).