The Sherman Act prohibits Mylan's use of exclusionary contracts to protect its monopoly and jack up prices for the indispensable, lifesaving EpiPen

WASHINGTON - The Open Markets Institute filed an amicus brief today urging the U.S. Court of Appeals for the 10th Circuit to reverse the district court's faulty decision in Sanofi's lawsuit against pharmaceutical giant Mylan. Sanofi alleged and showed in detail that Mylan maintained the monopolistic position of its EpiPen through unfair competitive practices.

The brief explains that Mylan maintained its monopoly in the market for auto-epinephrine injectors using practices that the Sherman Act prohibits in the following ways:

1. Instead of competing with Sanofi by reducing the price of and improving the EpiPen, Mylan struck an exclusive deal with pharmacy benefit managers and insurers by offering them lucrative rebates if they agreed to list only EpiPen and exclude Sanofi's Auvi-Q -- a more compact and patient-friendly competitor to the EpiPen -- on formularies.
2. Because of Mylan's monopoly and exclusionary practices, the EpiPen is extraordinarily expensive and out of the reach of many who desperately need it.
3. Mylan's conduct foreclosed Auvi-Q's presence and maintained the EpiPen's monopoly position.

It also outlines how in dismissing such blatantly illegal exclusionary and monopolistic practices by ruling in Mylan's favor, the district court:

1. Imposed heightened and unwarranted legal burdens on antitrust enforcers challenging the exclusive dealing of monopolists; and
2. Adopted an unjustified and dangerous 'equally efficient competitor' test for exclusive dealing claims that robs new entrants and small firms of protection from the exclusionary and predatory practices of monopolists.

In response, Sandeep Vaheesan, legal director at Open Markets Institute, issued the following statement:

"The soaring price of the EpiPen, an indispensable medical device, has a clear cause: abuse of monopoly power.

"In granting Mylan's motion for summary judgement, the district court not only turned a blind eye to long-established and foundational antitrust laws, but also disregarded the well-being of millions of Americans who rely on the EpiPen to prevent potentially fatal anaphylactic reactions. The district court adopted heightened and unjustified legal burdens in order to excuse Mylan's exclusionary practices.

"The court's decision frees monopolists to use exclusive dealing to impede rivals and preserve their dominance. The Sherman Act prohibits such monopolistic behavior. The 10th Circuit must rectify this brazen protection of monopolies and uphold anti-monopoly rules on fair competition."

David Seligman of Towards Justice kindly served us Open Markets' local counsel.