AAI Supports Rehearing in Drug Merger (FTC v. Lundbeck)

AAI filed a brief supporting the FTC’s petition for rehearing en banc in the Eighth Circuit. The brief maintains that the panel erred in upholding the district court’s ruling that the FTC had failed to prove the drugs at issue were in the same product market where the cross-price elasticity between the products was supposedly “low.” AAI argues that the purported lack of price sensitivity by doctors does not mean that the two drugs were in different relevant markets given that the drugs would have at least competed on non-price terms absent the merger, and that the acquiring firm was a monopolist that boosted prices by 1300 percent and forestalled the possibility of price competition by acquiring its closest rival.

The brief was written by AAI Director of Legal Advocacy Rick Brunell and AAI Senior Fellow Chris Sagers, with the assistance of AAI Advisory Board Member Joe Bruckner.