After an eight-year odyssey through the California courts, San Francisco antitrust lawyer Joseph Alioto may have finally reached the end of the line in a sprawling price-fixing case against Big Pharma.
On Wednesday, the California Supreme Court declined to hear an appeal of a decision from August that put an end to Alioto’s claims that a dozen pharmaceutical companies conspired to prop up drug prices. Alioto and his son Joseph Alioto Jr. first filed the case in 2004 on behalf of 15 retail pharmacies.
As we’ve reported, the Aliotos targeted a range pharma giants including Pfizer, Johnson & Johnson, GlaxoSmithKline, AstraZeneca, and Bristol-Myers Squibb, accusing them of colluding to charge wholesalers and retailers in California and elsewhere up to four times what foreign purchasers paid for the same drugs. The plaintiffs’ most recent complaint, filed in 2005, claimed that the drug companies agreed through a trade group called Pharmaceutical Research and Manufacturers of America to use the prices they charged for their drugs in Canada as a “floor” for setting prices in the U.S.
The case made it all the way up to the California Supreme Court once before, when the court ruled in July 2010 that the defendants couldn’t escape the case by showing that the pharmacies passed alleged overcharges on to their customers and thus hadn’t suffered any damages under state antitrust law. But a state court judge in Oakland nevertheless threw out the case on summary judgment in March 2011, finding that the plaintiffs had failed to offer proof of a conspiracy.
Kaye Scholer’s Aton Arbisser fended off an appeal at the intermediate appellate court, ultimately convincing California’s First Appellate District that there wasn’t enough evidence of a conspiracy to revive the case. Alioto (senior) told us then that blocking the case from ever reaching a jury “invites price fixers from all over the world to focus on the U.S. and California.”
Apparently the state’s high court was unmoved. It declined to hear the case without elaboration on Wednesday.
Neither the elder Alioto nor Kaye Scholer’s Arbisser responded to requests for comment on Friday.
In addition to Kaye Scholer for Novartis Pharmaceuticals Corporation, the defense lineup included Winston & Strawn (for Abbott Laboratories); Gibson, Dunn & Crutche (for Allergan Inc.); Sheppard, Mullin, Richter & Hampton (for Amgen Inc.); Sidley Austin, King & Spalding, and Davis Polk & Wardwell (for AstraZeneca); Jones Day (for Boehringer Ingelheim Pharmaceuticals Inc.), Cravath, Swaine & Moore and Sedgwick, Detert, Moran & Arnold (for Bristol-Meyers Squibb Company); Reed Smth (for Eli Lilly & Company); Irell & Manella (for GlaxoSmithKline); Drinker Biddle & Reath (for Hoffman-La Roche Inc.); Patterson Belknap Webb & Tyler (for Janssen Pharmaceuticals Inc.); Hughes Hubbard & Reed (for Merck); Shook, Hardy & Bacon (for Pfizer Inc.); and Latham & Watkins (for the Pharmaceutical Research and Manufacturers of America).