10 Fresenius Kabi USA, LLC v. Par Sterile Products, LLC, et al., Case No. 2:16-cv-04544-SDW-LDW (D.N.J.) Monopolization, attempted monopolization, conspiracy to monopolize, exclusive dealing, group boycott, and tortious interference O’Melveny client Par prevailed on summary judgment for a second time, ending a long-running dispute between the two competitors. Fresenius alleged that Par had monopolized the market for Vasopressin Injection—a life-saving drug used to boost blood pressure in emergency settings—by purportedly entering into exclusive agreements with suppliers of the active pharmaceutical ingredient (API) needed to develop and manufacture the drug. Holding that Fresenius failed to create a genuine issue of material fact on substantial foreclosure, the district court dismissed the claims in their entirety. Had Par not secured summary judgment on each of Fresenius’s claims, the case would have proceeded to trial, with hundreds of millions of dollars in treble damages at stake. Claims Outcome What Was at Stake On this ground, the court found that a jury could not conclude that Par substantially foreclosed the US Vasopressin Injection market by restricting access to API. Moreover, five other manufacturers’ ability to obtain Vasopressin API and file new drug applications before Fresenius demonstrated that the market was not substantially foreclosed. The record O’Melveny compiled was so compelling that Fresenius decided not to appeal the Court’s ruling. The Winning Strategy O’Melveny demonstrated that Fresenius had the opportunity to compete for access to API from its preferred supplier (as well as alternative suppliers) but made the business decision not to. Challenges to alleged exclusive supply agreements arise in many industries, including pharmaceuticals. O’Melveny’s success is a roadmap for refuting such claims—showing that Fresenius had every opportunity to compete, but chose not to bid for API when it had the chance. Why It Matters
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