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ANTITRUST a deal by the maker of a prescription blood pressure medication to pay the maker of a rival generic drug to delay its entry into the market was a per se illegal restraint of trade, giving rise to a valid antitrust claim, the 6th U.S. Circuit Court of Appeals said on June 16. In re: Cardizem CD Antitrust Litigation, No. 00-2483. Hoechst Marion Roussel (HMR) held the patent on Cardizem CD. When it expired in 1992, Andrx Pharmaceuticals sought Food and Drug Administration approval to sell a generic version. Alleging infringement, HMR sued, automatically staying the application for 30 months. But before that time expired, the companies agreed that HMR would pay Andrx nearly $90 million over two years in exchange for Andrx’s delay in selling its product. A class of direct and indirect Cardizem CD purchasers then filed suit against HMR and Andrx, alleging federal and state antitrust violations. Denying the defendants’ motion to dismiss, a Michigan federal court certified two questions to the 6th Circuit. Reversing the order certifying the questions, the 6th Circuit ruled that the companies’ deal was a “plain vanilla horizontal agreement to restrain trade” by paying Andrx to forbear from selling a drug that it was ready to sell at a lower price than Cardizem CD. Affirming the denial of the dismissal motion, the panel added that the plaintiffs had alleged a compensable antitrust injury, even if Andrx could have legally decided not to bring its product to market any earlier.

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