Sitting in San Francisco this afternoon, Judge Maxine Chesney dismissed the suit that first made national headlines with its rather surprising TARP-based allegations, and ended as a garden-variety Clayton Act and Sherman Act case (it was also the subject of our trivia question, back on Tuesday!), thus:
. . . .Plaintiffs fail to allege, however, even as a conclusion, let alone the requisite facts to support a finding, that all prescription drugs are “reasonably interchangeable by consumers for the same purposes.” See E.I. du Pont de Nemours, 351 U.S. at 395. . . .
Moreover, even if the complaint could be reasonably understood as providing sufficient notice that “categories of therapeutic products” are the product market(s) at issue herein, the complaint fails to allege sufficient facts to support a finding that the proposed merger will have “significant anticompetitive effects” within any particular “category.” See Tanaka, 252 F.3d at 1063-64 (affirming dismissal of antitrust claims where plaintiff failed to allege facts to support finding conduct at issue “has had significant anticompetitive effects within a relevant market, however defined”). For example, although plaintiffs allege “Pfizer’s anti-neoplastic, Sutent®, competes with Wyeth’s anti-neoplastic, Torisel®,” and that the merger will “eliminate” such competition (see Compl. ¶¶ 51, 52), plaintiffs fail to allege that there exists no other reasonably interchangeable products within the “category of therapeutic products” in which Sutent and Torisel compete. See, e.g., Big Bear Lodging Ass’n v. Snow Summit, Inc., 182 F.3d 1096, 1105 (9th Cir. 1999) (holding, where plaintiffs alleged “product markets for lodging accommodations and ski packages” in Big Bear Valley, district court properly dismissed antitrust claims because plaintiffs failed to allege “there are no other goods or services that are reasonably interchangeable with lodging accommodations or ski packages within [the] geographic market”). Accordingly, the complaint is subject to dismissal for failure to allege a cognizable product market. . . .
In addition, the lawyers for Pfizer advised Judge Chesney by letter today that the merger had formally closed in New York City, this morning.
The operative antitrust filings (with the FTC/DoJ and the ECC, primarily) in the Pfizer-Wyeth transactions were made about three months earlier than those in Schering-Plough’s reverse merger with Merck. So, my guess is that we are still about three months away from FTC clearance, here. As ever, we shall see.