The US Court of Appeals for the Third Circuit declines to apply the price cost test to a loyalty discount case in the pharmaceutical sector (Eisai / Sanofi)

On May 4, 2016, the Third Circuit—following the principles it set forth in LePage’s, [1] Dentsply, [2] and ZF Meritor [3]—affirmed a decision by District of New Jersey Judge Mary L. Cooper granting summary judgment in favor of the defendant in Eisai, Inc. v. Sanofi-Aventis U.S., LLC. [4] Eisai is the latest in a line of Sherman Act decisions by the Third Circuit challenging what it characterizes as de facto exclusive dealing, and the third such case to consider when loyalty discounts run afoul of the antitrust laws. It is, however, the first to be decided against the plaintiff. For that reason, Eisai may strike practitioners as a departure from the Third Circuit’s recent ZF Meritor loyalty discount decision and its landmark bundled loyalty discount en banc decision in LePage’s. Perhaps

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Gary I. Smith Jr., The US Court of Appeals for the Third Circuit declines to apply the price cost test to a loyalty discount case in the pharmaceutical sector (Eisai / Sanofi), 4 May 2016, e-Competitions May 2016, Art. N° 96358

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