In Federal Trade Commission v. Lundbeck, Inc., Civ. No. 08-6379 (D. Minn. 2009), a district court judge denied Lundbeck’s, formerly Ovation Pharmaceuticals, Inc.’s, motions for summary judgment. The Federal Trade Commission (FTC) and 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 HSRreportable, allegedly gave the company a monopoly in pharmaceutical treatments for patent ductus arteriosus (PDA), a disorder that primarily affects low-birth-weight premature infants. (See Hogan & Hartson LLP, Life Sciences: Antitrust and Competition Update, Issue 12)
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 Lundbeck held prior to the acquisition, were not substitutes; that generic entry was imminent; that the price increase for Indocen was unrelated to the acquisition of NeoProfen. With respect to these issues, the court ruled that the FTC and Minnesota had presented sufficient evidence to the contrary and that there were genuine issues of material fact related to each. A trial date in this case has been set for December 7, 2009.