Sanofi-Aventis U.S., LLC v. Mylan, Inc., et al.

This Court has held that when a firm “attempt [s] to exclude rivals on some basis other than efficiency,” that conduct is unlawfully exclusionary. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605 (1985) (citation and quotation marks omitted). A number of lower courts have applied this principle to monopoliza­ tion claims based on exclusive dealing, holding that a mo­ nopolist’s exclusive contracts are anticompetitive if they “can exclude equally efficient (or potentially equally effi­ cient) rivals.” ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 281 (3d Cir. 2012). Respondents’ EpiPen held a monopoly in the market for devices to treat a life-threatening allergy condition. When Petitioner launched the first true rival to EpiPen, Respondents used their +90% durable monopoly share to threaten—and indeed punish—market participants for even considering purchasing a competing product from Petitioner. Respondents’ penalties were sufficient to ex­ clude competition regardless of the rival’s efficiency or price—the largest dealer in the United States informed Petitioner that even a 100% discount would not be enough to access consumers. That evidence would have been material under the approach endorsed by Third, Sixth, Eleventh, and D.C. Circuits. Yet, the Tenth Circuit refused to consider it. The question presented is: When a monopolist’s ex­ clusionary conduct would foreclose equally (or potentially equally) efficient rivals from accessing significant chan­ nels of distribution, is the monopohst’s conduct anticom­ petitive under § 2 of the Sherman Act?