Direct Purchasers Defeat Merck’s Motion For Summary Judgment In Monopolization Case Involving Mumps Vaccine Products
Antitrust Litigation
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  • Direct Purchasers Defeat Merck’s Motion For Summary Judgment In Monopolization Case Involving Mumps Vaccine Products

    On July 27, 2023, Judge Chad Kenney of the United States District Court for the Eastern District of Pennsylvania granted in part and denied in part Merck’s motion for summary judgment in relation to a class action alleging that direct purchasers of Merck’s mumps vaccines were overcharged as a result of Merck’s alleged unlawful monopolization of the mumps vaccine market in violation of Section 2 of the Sherman Act and New Jersey and New York state laws.  In re Merck Mumps Vaccine Litig., No. 12-3555 (E.D. Pa. July 27, 2023).  Plaintiffs allege that Merck’s submissions to the FDA and its labels for its mumps vaccines contained false and misleading information in relation to the amount of live virus in its products.  According to plaintiffs, this led to competitors being forced to comply with unusual standards to receive FDA approval to market their products, and specifically, it precluded GSK from obtaining a license to sell its vaccine for mumps, measles and rubella (MMR vaccine) and caused plaintiffs to be overcharged.

    Merck made three arguments supporting its entitlement to summary judgment:  (1) plaintiffs’ Section 2 Sherman Act claim is foreclosed by the Noerr-Pennington doctrine; (2) to the extent plaintiffs base their claim on Merck’s public statements, those statements are not actionable; and (3) plaintiffs cannot prove causal antitrust injury.

    In relation to the Noerr-Pennington doctrine (which holds that parties that petition the government for redress are generally immune from antitrust liability), the Court found that Merck’s submission to the FDA could be considered petitioning.  However, the Court declined to grant summary judgment in favor of Merck on Noerr-Pennington grounds because there were genuine questions of fact that remained for a jury to decide in relation to whether the petition was a sham.  Further, even if the petitioning conduct is immune under Noerr-Pennington, the petitioning may be relevant in this case to show Merck’s intent when assessing the allegation that the false and misleading label claims were anticompetitive.

    With regard to its second argument, Merck cited several cases in support the proposition that antitrust claims based on misleading public statements are not actionable as antitrust violations in the absence of coercion, and in any event, truthful statements would not have changed the competitive process.  The Court distinguished the cases and declined to grant summary judgment on this basis since there were disputes as to whether Merck’s misleading statements harmed the competitive process which should be considered by a jury.

    Finally, Merck argued that plaintiffs had not stablished antitrust injury because they had not proven a causal link between Merck’s conduct and plaintiffs’ injuries because (a) GSK’s independent business decisions delayed GSK’s development of a rival product, and (b) claims that without Merck’s misleading statements the FDA would have “lowered the bar” are speculative and do not establish the necessary causal link that is required between an alleged antitrust violation and injury.  The Court found that there was sufficient evidence that there was a genuine question of fact for the jury in relation to whether Merck’s conduct was a material cause of the injury or whether other factors (such as the FDA’s process and GSK’s independent business decisions) broke the chain of causation.

    The Court only granted judgment in favor of Merck in relation to plaintiffs’ state-law claims.  Merck’s grounds for summary judgment in relation to the Section 2 Sherman Act claims were therefore denied, and plaintiffs can proceed with their claims.

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