How Eisai V. Sanofi Will Affect Loyalty Discount Cases

Law360, New York (June 3, 2016, 11:15 AM EDT) -- On May 4, 2016, the Third Circuit affirmed a summary judgment finding that Sanofi-Aventis U.S. LLC's loyalty discounts for its anticoagulant drug Lovenox were not anti-competitive. In doing so, the court distinguished several of its earlier opinions and provided some guidance on when these common marketing programs violate the antitrust laws. The plaintiff, Eisai Inc., has requested a rehearing; as long as the opinion stands, however, it has implications for future judicial reviews of loyalty discounts.

Because the U.S. Supreme Court has not reviewed a loyalty discount case in decades, the courts of appeal have struggled to apply modern antitrust thinking...

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