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BAYER SCHERING PHARMA AG v. Sandoz, Inc.

Citations: 813 F. Supp. 2d 569; 2011 WL 4478302Docket: 08 Civ. 03710(PGG), 08 Civ. 08112(PGG)

Court: District Court, S.D. New York; September 28, 2011; Federal District Court

Narrative Opinion Summary

This case involves Bayer Schering Pharma AG and Bayer Healthcare Pharmaceuticals, Inc. filing a lawsuit against Sandoz, Inc., Watson Pharmaceuticals, Inc., and Watson Laboratories, Inc. in response to Sandoz's Abbreviated New Drug Applications concerning the contraceptive drugs Yasmin and Yaz. The focus of the case was on Sandoz's antitrust counterclaims under the Sherman Act, which alleged monopolization and conspiracy to monopolize. Previously, the court had dismissed Sandoz's original counterclaims as implausible, allowing for amendments. In its revised counterclaims, Sandoz redefined the relevant market for Yasmin and Yaz, but Bayer moved to dismiss these claims again. The court found Sandoz's market definitions implausible, noting the failure to adequately justify the exclusion of substitutes, thereby dismissing the claims under Rule 12(b)(6). Sandoz's assertions of Bayer's market control were deemed speculative and lacking factual support. The court emphasized the need for a well-defined market and concrete evidence of anticompetitive conduct to sustain such claims. Consequently, Bayer's motions to dismiss Sandoz's Fourth and Fifth Amended Counterclaims were granted, and the counterclaims were dismissed without leave to re-plead.

Legal Issues Addressed

Judicial Standard for Rule 12(b)(6) Motions to Dismiss

Application: The court applied this standard by considering the factual sufficiency of Sandoz’s amended counterclaims and dismissing them for implausibility.

Reasoning: A counterclaim must present a plausible claim for relief to withstand a motion to dismiss.

Market Definition in Antitrust Claims

Application: Sandoz’s failure to adequately define the relevant product market for Yasmin and Yaz led to the dismissal of its antitrust claims.

Reasoning: Bayer points out that Sandoz fails to account for numerous substitutes for Yasmin and Yaz.

Plausibility of Antitrust Claims under Sherman Act

Application: The court dismissed Sandoz's amended counterclaims due to insufficient factual matter supporting a plausible claim for relief under the Sherman Act.

Reasoning: Bayer responded by moving to dismiss these amended counterclaims, which the court agreed to, citing insufficient factual matter to support a plausible claim for relief.

Requirements for Attempted Monopolization under Sherman Act Section 2

Application: Sandoz's claims lacked proof of a dangerous probability of achieving monopoly power, leading to dismissal.

Reasoning: Sandoz claims of attempted monopolization against Bayer lack substantive support and rely on speculative assertions.

Role of Market Share in Monopoly Power Assessment

Application: The court found Sandoz’s claims of Bayer’s market dominance speculative and unsupported by data.

Reasoning: Sandoz's allegation of Bayer's market control is conclusory and insufficient to establish a monopoly or even a dangerous probability of achieving monopoly power.