In Federal Trade Commission v Lundbeck, Inc(1) a district court judge denied motions for summary judgment filed by Lundbeck, Inc, formerly Ovation Pharmaceuticals, Inc. The Federal Trade Commission (FTC) and the Minnesota attorney general brought suit against Ovation seeking divestiture and disgorgement of profits for alleged price-gouging in relation to Ovation's acquisition of NeoProfen. The acquisition of NeoProfen, which was not reportable under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, allegedly gave the company a monopoly in pharmaceutical treatments for patent ductus arteriosus, a disorder that primarily affects low-birth-weight premature infants.

In denying the motions, the court found that the FTC had put forth sufficient evidence with respect to whether Lundbeck obtained monopoly power in a relevant market through the acquisition of NeoProfen. Lundbeck argued that:

  • NeoProfen and Indocen, the drug that Lundbeck held prior to the acquisition, were not substitutes;
  • generic entry was imminent; and
  • the price increase for Indocen was unrelated to the acquisition of NeoProfen.

With respect to these issues, the court ruled that the FTC and the attorney general had presented sufficient evidence to the contrary and that there were genuine issues of material fact related to each. A trial date has been set for December 7 2009.

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(1) Civ 08-6379 (D Minn 2009).

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