Legal Newswire | Tenth Circuit Adopts Sound Antitrust Law Economy in Opinion Upholding District Court’s Grant of Summary Judgment to Defendant-Respondent Mylan in Sanofi’s EpiPen Monopolization Case


Tenth Circuit Adopts Sound Antitrust Law Economy in Opinion Upholding District Court’s Grant of Summary Judgment to Defendant-Respondent Mylan in Sanofi’s EpiPen Monopolization Case

August 02, 2022 10:50 a.m. ET


MCLEAN, VIRGINIA – AUGUST 2, 2022 – In a landmark opinion dated July 29, 2022, the United States Court of Appeals for the Tenth Circuit applied sound principles of antitrust economics to uphold the grant by the district court for summary judgment to defendant and respondent Mylan, Inc. and defendant-counterclaimant and respondent Mylan Specialty, LP (collectively “Mylan”). The case, In D EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices, and Antitrust Litigation, No. 21-3005, 2022 WL 3009140, was on appeal from the U.S. District Court for the District of Kansas, No. 2:17-MD-02785-DDC-TJJ, 507 F. Supp. 3d 1289 (D. Kan. Dec. 17, 2020), presided over by Judge Daniel D. Crabtree. Senior Judge Bobby R. Baldock wrote the opinion for the Tenth Circuit.

The Tenth Circuit opinion adopted the key principles of sound economic analysis of law advocated in the brief amicus curiae written by J. Gregory Sidak and submitted to the Court on behalf of Mylan. Jeffrey A. Lamken of MoloLamken LLP served as case counsel on the case. The Tenth Circuit opinion cited the seminal scholarship of Judge Richard Posner and William Landes (including their groundbreaking 1981 Harvard Law Review article, “Market Power in Antitrust Cases”), Justice Robert H. Bork, Justice Frank H. Easterbrook, William Nordhaus, Paul Samuelson, George Stigler, and Joseph Schumpeter.

Sanofi-Aventis US, LLC (“Sanofi”) had accused Mylan of monopolizing the market for epinephrine auto-injectors (EAIs), such as Mylan’s EpiPen and Sanofi’s Auvi-Q. Quoting Judge Learned Hand’s persistent remark in United States v Aluminum Co. of America148 F.2d 416, 430 (2d Cir. 1945) (“Alcoa“), the Tenth Circuit observed: “[I]n the epinephrine auto-injector market[,] instead of competing on the form, Mylan and Sanofi were in competition for the form. Mylan’s legitimate competition for the form should not now expose him to liability. “The successful contestant, having been invited to compete, should not be excited when he wins.” Without any evidence of harm at competition — as opposed to harm of competition – Sanofi cannot present this case to a jury.

The Tenth Circuit thus repudiated the expert economic testimony of Professor Fiona Scott Morton of the Yale School of Management and the consulting firm Charles River Associates on behalf of Sanofi, which the district court had dismissed in part on Daubert lands. “Ultimately, Scott Morton’s primary concern [effective entrant burden] “test” would be the protection not of consumer welfare, but of competitorsMr. Sidak wrote in his amicus brief. In accordance with Mr. Sidak’s brief pointing out that “American antitrust law promotes” the protection of competitionnot competitors“”the tenth circuit” reject[ed] e[e] invitation” to “either supplant or complete [its] consumer welfare with a consumer choice framework. Citing the writings of Justice Bork, the Court observed that “[i]Introducing a consumer choice framework, even as an adjunct to the consumer welfare standard, may inappropriately draw courts back into what Judge Bork called the “antitrust paradox.”

In reaching its conclusion, the Tenth Circuit specifically invoked “Joseph Schumpeter’s views on entrepreneurship and innovation that underlie” the Supreme Court’s antitrust case law on monopolization, “Schumpeter’s assumption that imperfect competition is the “source of innovation and technological change” and the decision of the DC Circuit observation in 2001 in United States vs. Microsoftquoting Schumpeter’s treatise “Capitalism, Socialism and Democracy”, that, “‘[i]n technologically dynamic markets, . . . entrenchment can be temporary, as innovation can completely change the field.

Citing the opinion of Judge Posner in Products Liability Insurance Agency, Inc. c. Crum & Forster Insurance Companies, 682 F.2d 660, 663 (1982), which Dr. Sidak’s brief had quoted and underlined, the Tenth Circuit observed: “‘Now there is a sense in which the elimination of even a single competitor reduces competition. But it is not the meaning that is relevant in deciding whether the antitrust laws have been violated.’ Quoting Judge Posner quote from Shakespeare Hamlet in University Life Insurance Co. of America v. Unimarc Ltd.699 F.2d 846, 853 (7e Cir. 1983), which Mr. Sidak’s memoir had also quoted and underlined, the Tenth Circuit observed: “a specially special one in the fall of a sparrow. . . is not the contemporary philosophy of antitrust.

Founded in 1999 by J. Gregory Sidak, Criterion Economics, Inc. provides expert economic testimony and advice in legal proceedings around the world. Additional information appears on

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