Posted On: February 27, 2009 by Guest Author

Judge Sue L. Robinson: Foreign Participation in the U.S. Market Through Third Party U.S. Licensee Deemed Sufficient to Withstand Motion To Dismiss

Another guest post by our colleage, Pilar Kraman :

On February 20, 2009, Judge Robinson issued an opinion granting in part and denying in part defendant Abbott Laboratories’ motion to dismiss. Ethypharm S.A. France v. Abbott Laboratories, C.A. No. 08-126-SLR, Memo. Op. (D. Del. Feb. 20, 2009). The plaintiff, a French pharmaceutical company, alleges in its complaint that the defendant, a U.S. pharmaceutical company, interfered with plaintiff’s U.S. licensee from marketing and selling plaintiff’s product in the United States. The defendant sought to dismiss all of plaintiff's claims, including antitrust claims under sections 1 and 2 of the Sherman Act; and common law claims for unfair competition, tortious interference with existing or prospective business relations, tortious interference with contract, and restraint of trade.

The Court denied the defendant’s motion to dismiss the plaintiff’s Sherman Act claims. In doing so, the Court answered affirmatively the question “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 . . . .” Id. at 6. The Court held that plaintiff’s participation in the U.S. market through its third party U.S. licensee entitles plaintiff to challenge the defendant’s conduct with respect to the plaintiff’s licensee. Moreover, the defendant’s actions related to the plaintiff’s licensee “indicate an intent to harm [the plaintiff], if anyone.” Id. at 10.

Ethypharm S.A. France v. Abbott Laboratories, C.A. No. 08-126-SLR, Memo. Op. (D. Del. Feb. 20, 2009).