Cases & Deals

Bayer prevails in Supreme Court, ending federal Cipro antitrust class actions

Clients Bayer AG

On March 7, 2011, the Supreme Court of the United States denied certiorari in In re Ciprofloxacin Hydrochloride Antitrust Litigation, bringing to an end an eleven-year battle between Jones Day client Bayer and antitrust class plaintiffs arising from a patent settlement concerning Bayer's popular antibiotic, Cipro. Before the Second Circuit and in the Supreme Court, Bayer's position was opposed by a host of governmental and private amici curiae -- including the U.S. Department of Justice, the Federal Trade Commission, thirty-four state attorneys general, and an assortment of consumer advocates. Nonetheless, the Supreme Court denied certiorari from the Second Circuit's ruling in favor of Bayer, thereby disposing of the entire federal multi-district litigation ("MDL") alleging billions in damages.

Since 2000, Jones Day has acted as national coordinating co-counsel for Bayer (along with Bartlit Beck of Chicago) in over 40 nationwide antitrust class actions involving cutting-edge issues at the intersection of the patent and antitrust laws. After Bayer settled patent infringement litigation with Barr Laboratories in 1997 over the widely used antibiotic Cipro, direct and indirect purchasers of Cipro brought antitrust lawsuits challenging the settlement in both federal and state courts.

In March 2005, the district court in the federal MDL granted summary judgment to Bayer on all claims. In re Ciprofloxacin Hydrochloride Antitrust Litigation, 363 F. Supp. 2d 514 (E.D.N.Y. 2005). Both sets of plaintiffs appealed the ruling to the Second Circuit. Because the Indirect Purchaser plaintiffs had added a count directly attacking the enforceability of Bayer's patent, the Second Circuit transferred their appeal to the Federal Circuit, which has exclusive jurisdiction over patent cases. In October 2008, the Federal Circuit affirmed the grant of summary judgment in favor of Bayer with respect to the Indirect Purchasers, and the Supreme Court denied their petition for certiorari. In re Ciprofloxacin Hydrochloride Antitrust Litigation, 544 F.3d 1323 (Fed. Cir. Oct. 15, 2008), cert. denied, 129 S.Ct. 2828 (2009).

Meanwhile, the Direct Purchaser plaintiffs' appeal remained pending in the Second Circuit. In April 2010, the Second Circuit affirmed the grant of summary judgment to Bayer, and denied a petition for rehearing en banc in September 2010. The Direct Purchasers then sought certiorari from the Supreme Court, supported by numerous amici. On March 7, 2011, the Court denied certiorari, thereby resolving the federal MDL litigation in its entirety. Arkansas Carpenters Health and Welfare v. Bayer AG, 604 F.3d 98 (2d Cir. 2010), cert. denied, 2011 U.S. LEXIS 2090, 2011 WL 767662.

Similar state law antitrust claims based on the same settlement remain pending in California, where a grant of summary judgment to Bayer is on appeal, and in three other states.

In re Ciprofloxacin Hydrochloride Antitrust Litigation, 544 F.3d 1323 (Fed. Cir. Oct. 15, 2008), cert. denied, 129 S.Ct. 2828 (2009), and Arkansas Carpenters Health and Welfare v. Bayer AG, 604 F.3d 98 (2d Cir. 2010), cert. denied, 2011 U.S. LEXIS 2090, 2011 WL 767662

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