Cases & Deals

Boehringer Ingelheim successfully defends appeal of summary judgment in California antitrust action

Client(s) Boehringer Ingelheim Pharmaceuticals, Inc.

Jones Day represented pharmaceutical manufacturer Boehringer Ingelheim Pharmaceuticals, Inc. in an antitrust action brought by California pharmacies claiming that Boehringer Ingelheim and other drug companies conspired to inflate drug prices in the United States and keep lower-priced Canadian drugs off the market. The drug company defendants had initially won at the trial court level in 2007, when the court ruled that the pharmacies were not entitled to damages because they had passed the higher prices on to customers. The Court of Appeal for the State of California First Appellate District affirmed the "pass-on defense" in July 2008, but the California Supreme Court reversed and remanded that decision in July 2010, holding that under the Cartwright Act, California's antitrust law, the pass-on defense was not available.

On remand, in March 2011, Boehringer Ingelheim obtained summary judgment on the separate and independent grounds of plaintiffs’ inability to prove a conspiracy among the defendant parties. The California Court of Appeal affirmed the judgment for defendants in August 2012.

The decision in this case better defines the scope of affirmative defenses available to defendants in California antitrust matters, such as the “pass-on” defense, but the trial court’s most recent ruling fortified the standard for summary judgment in California antitrust actions.

Clayworth v. Pfizer, et al., No. RG04-172428 (California Superior Court, County of Alameda); No. A131804 (California Court of Appeal, First Appellate District)