Robbins Russell Obtains Summary Judgment for Mylan in Sanofi Rebate Case

On January 29, 2021, the U.S. District Court for the District of Kansas unsealed its decision granting summary judgment to Robbins Russell client Mylan Inc. on antitrust claims that Sanofi-Aventis US, LLC had pursued for more than three years.  Sanofi sought billions from Mylan on allegations that Mylan’s rebate agreements with pharmacy benefit managers on its EpiPen® Auto-Injector were unlawful exclusive dealing contracts.  But in a 157-page opinion applying the rule of reason, Judge Crabtree decisively rejected Sanofi’s claims, noting that the record is “devoid of evidence that would allow a trier of fact to infer coercion” and instead shows conditional rebate agreements to be “a normal competitive tool.”  The Court also excluded an “Effective Entrant Burden” test that Sanofi’s expert, Fiona Scott Morton, Ph.D., had performed on grounds it was unreliable and unsupported by the facts.   And the Court rejected Sanofi’s claims for another reason as well—the record “presents no triable issue of antitrust injury.”  Noting that “[t]he purpose of the antitrust laws is ‘the protection of competition, not competitors,’” the Court concluded that “the parties’ rebating practices provided consumers greater discounts on pharmaceutical products—something that benefited consumers.”  Robbins Russell partners Phil Sechler, Roy Englert, Kathy Zecca, and Lee Friedman represented Mylan along with associates Ralph Mayrell, Jessica Ettinger, and John Goerlich, discovery attorney Bob Kearney, and paralegal Kate Miller.