A Colombian manufacturer of soft-gel capsules won round one in Miami federal antitrust litigation against Patheon Inc., a Canadian pharmaceutical company.
Procaps S.A., the largest soft-gel capsule maker in South America, filed its lawsuit Dec. 10 in an attempt to defeat Procaps’ acquisition of a controlling interest in Banner Pharmacaps Europe B.V., a global leader in soft-gels.
Procaps entered a collaboration agreement last year with Patheon that was to give Procaps much broader access to the North American market in exchange for helping Patheon develop a soft-gel product line.
But eight months later Patheon announced its intent to acquire Banner, one of Procaps fiercest competitors.
U.S. District Judge Donald Graham denied Patheon’s motion to dismiss Feb. 22.
"The court finds that Procaps has properly stated a claim for a per se violation of the Sherman Act," Graham said.
Patheon contends the agreement contains pro-competitive effects for Procaps and actually would benefit the Colombian company.
"The complaint does not allege that Procaps benefits from the acquisition," the judge wrote. The agreement "expressly states that the acquisition and agreement gives Patheon the ability to limit and control Procaps’ and Banner’s participation in the soft-gel market within an extensive territory."
Procaps asked the court for a declaration that its agreement with Patheon is an unlawful restraint of trade. Procaps also seeks an injunction requiring Patheon to divest all Banner soft-gel manufacturing capabilities and asks for damages under federal antitrust law and Florida statutory and common law.
Procaps, represented by Alan Rosenthal of Carlton Fields in Miami, filed its lawsuit in Florida because it has a plant in Sunrise. Patheon’s U.S. headquarters is in Durham, North Carolina.