The US Court of Appeals for the Tenth Circuit upholds a District Court decision dismissing a case alleging exclusionary practices on the grounds that consumer welfare is unaffected and a demonstrable intention to exclude in some situations is legitimate (Sanofi-Aventis / Mylan)

On July 29, 2022, the Tenth Circuit [1] affirmed the grant of summary judgment to defendants by the District of Kansas [2] in an important, albeit at times misguided, monopolization opinion. The antitrust claim by Sanofi-Aventis U.S., LLC against Mylan, Inc. and Mylan Specialty, LP, arose from competition (or, perhaps more precisely, a lack thereof) among these pharmaceutical companies in the market for epinephrine autoinjectors (“EAIs”), which are self-administered medical devices used to treat life-threatening allergic reactions. [3] The Tenth Circuit’s opinion may have made at least two fundamental errors, including failing to include any analysis of whether prices in the actual world were lower than in a but-for world (that is, a world without the challenged restraint), as well as