Petition for Writ of Certiorari — Sanofi-Aventis U.S., LLC, Petitioner v. Mylan, Inc., et al.

No. 22-

3ht tlje Supreme Court of tfje Mntteb States;

Sanofi-Aventis U.S., LLC, petitioner

u.

Mylan, Inc., and Mylan Specialty, LP, respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Joshua Halpern

Weil, Gotshal & Manges

LLP

2001 M Street NW,

Suite 600

Washington, D.C. 20036

(202) 682-7000

Gregory Silbert

Counsel of Record

Yehudah L. Buchweitz

Eric S. Hochstadt

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, N.Y. 10153

(212) 310-8000

gregory.silbert@weil.com

(i)

QUESTION PRESENTED

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?

(ii)

CORPORATE DISCLOSURE STATEMENT

Per Supreme Court Rule 29.6, Applicant SanofiAventis U.S. LLC certifies that it is a wholly owned sub­

sidiary of Sanofi, and no publicly held company owns

10% or more of its stock.

<m)

RELATED PROCEEDINGS

United States District Court for the District of Kansas:

In re EpiPen (Epinephrine Injection, USP) Marketing,

Sales Practices and Antitrust Litigation,

No. 2:17-md-02785-DDC-TJJ (Dec. 17, 2020)

United States Court of Appeals for the Tenth Circuit:

Sanofi-Auentis U.S., LLC v. Mylan, Inc. {In re EpiPen

(Epinephrine Injection, USP) Marketing, Sales

Practices

and

Antitrust

Litigation),

No. 21-3005 (July 29, 2022)

(iv)

TABLE OF CONTENTS

Opinions below.........................................................

Jurisdiction..............................................................

Statutory Provisions Involved...............................

Statement.................................................................

Reasons for granting the petition..........................

I. The circuit courts are in conflict as to when

exclusive dealing by a monopolist raises a

triable question at summary judgment...... .

II. The question presented is important and

merits this Court’s review............................ .

III. The decision below is incorrect....................

Conclusion.................................................................

1

1

1

2

15

16

21

23

27

APPENDIX

Public Material (Appended to Petition)

Appendix A — Opinion of the United States Court

of Appeals for the Tenth Circuit,

Filed July 29, 2022.......................

la

Appendix B — Memorandum and Order of the

United States District Court for

the District of Kansas, Filed

December 17, 2020..................... 95a

Under Seal Material (Sealed Supplemental Appendix)

Appendix A — Sealed Memorandum and Order of

the United States District Court

for the District of Kansas, Filed

December 17, 2020...................... SA1

(v)

TABLE OF AUTHORITIES

Page(s)

Cases

Aspen Skiing Co. u. Aspen Highlands

Skiing Corp.,

472 U.S. 585 (1985)............................... i, 2, 18, 20

Brooke Grp. Ltd. v. Brown &

Williamson Tobacco Corp.,

509 U.S. 209 (1993)............................... 4, 12, 20, 22

Cascade Health Sols. v. PeaceHealth,

515 F.3d 883 (9th Cir. 2008)................

passim

Concord Boat Corp. v. Brunswick Corp.,

207 F.3d 1039 (8th Cir. 2000).............

4, 20, 22

Cont’l Ore Co. v. Union Carbide &

Carbon Corp.,

370 U.S. 690 (1962)...............................

10

Conwood Co. u. U.S. Tobacco Co.,

290 F.3d 768 (6th Cir. 2002)................

3, 18

Eastman Kodak Co. v. Image Tech.

Serus. Inc.,

504 U.S. 451 (1992)...............................

16, 24

Eisai, Inc. u. Sanofi-Aventis U.S., LLC,

821 F.3d 394 (3d Cir. 2016).................

12, 17

LePage’s Inc. v. 3M,

324 F.3d 141 (3d Cir. 2003) (en banc)

passim

McWane, Inc. v. FTC,

783 F.3d 814 (11th Cir. 2015).............

passim

Pac. Bell Tel. Co. u. linkLine Commc’ns,

555 U.S. 438 (2009)...............................

23

Spirit Airlines, Inc. u. Nw. Airlines, Inc.,

431 F.3d 917 (6th Cir. 2005)............. .

25

(vi)

Tampa Elec. Co. u. Nashville Coal Co.,

365 U.S. 320 (1961)...........................

2, 21, 25

United States v. Dentsply Int’l, Inc.,

399 F.3d 181 (3d Cir. 2005)........... 3, 13, 14, 21, 26

United States v. Microsoft Corp.,

253 F.3d 34 (D.C. Cir. 2001) (en

banc)....................................................

3, 21, 25

White Motor Co. v. United States,

372 U.S. 253 (1963)...........................

23

ZFMeritor, LLC v. Eaton Corp.,

696 F.3d 254 (3d Cir. 2012)............ i, 3, 17, 20, 22

Statutes

15U.S.C. § 2.............................................

28 U.S.C. § 1254(1).................................

i, L 9, 24

1

Other Authorities

Phillip E. Areeda & Herbert

Hovenkamp, Antitrust Law (Supp.

2002)....................................................

IIIB Philip E. Areeda & Herbert

Hovenkamp, Antitrust Law (3d ed.

2008)....................................................

Competitive Impact Statement, United

States v. Microsoft Corp.,

56 F.3d 1448 (D.C. Cir. 1995),

available at http://www.usdoj.gov/

atr/cases/f0000/0045.pdf...................

17

21

19

(vii)

Press Release, U.S. Dep’t of Just., Jus­

tice Department Withdraws Report

on Antitrust Monopoly Law (May 11,

2009), available at https://www.justice.gov/opa/pr/justice-departmentwithdraws-report-antitrust-monopoly-law........................................... ..........

U.S. Dep’t of Just., Competition and Mo­

nopoly: Single-Firm Conduct Under

Section 2 of the Sherman Act (2008),

available at https://www.justice. gov/sites/default/file s/atr/legacy/2009/05/ll/236681.pdf...................

19

18

3fn tlje Supreme Court of tfje Mntteb States

No. 22Sanofi-Aventis U.S., LLC, petitioner

v.

Mylan, Inc., and Mylan Specialty, LP, respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-94a)

is pubhshed at 44 F.4th 959. The opinion of the district

court (Pet. App. 95a-292a) is pubhshed at 507 F. Supp.

3d 1289.

JURISDICTION

The judgment of the court of appeals was entered on

July 29, 2022. On October 19, 2022, Justice Gorsuch ex­

tended the time within which to file a petition for a writ

of certiorari to and including Monday, November 28,

2022. The jurisdiction of this Court rests on 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 2 of the Sherman Act, 15 U.S.C. § 2, provides:

Every person who shall monopolize, or at­

tempt to monopohze, or combine or conspire with

2

any other person or persons, to monopolize any

part of the trade or commerce among the several

States, or with foreign nations, shall be deemed

guilty of a felony, and, on conviction thereof,

shall be punished by fine not exceeding

$100,000,000 if a corporation, or, if any other

person, $1,000,000, or by imprisonment not ex­

ceeding 10 years, or by both said punishments,

in the discretion of the court.

STATEMENT

In the six decades since this Court last considered ex­

clusive dealing,1 the courts of appeals have developed

conflicting tests for monopolization claims. But—until

the Tenth Circuit’s decision in this case—the courts on

different sides of the split have all given effect to a core

antitrust principle: the exercise of monopoly power is an­

ticompetitive if it would exclude an equally efficient com­

petitor from the market. Under this principle, evidence

showing that an equally efficient competitor could not ac­

cess the market is directly relevant to a monopolization

claim. The court below, by contrast, deemed exactly that

kind of evidence immaterial as a matter of law.

In the Third Circuit—where this case was originally

filed—a “monopolist willfully ... maintains monopoly

power when it competes on some basis other than the

merits.” LePage’s Inc. u. 3M, 324 F.3d 141, 147 (3d Cir.

2003) (en banc) (citing Aspen Skiing Co. v. Aspen High­

lands Skiing Corp., 472 U.S. 585, 605 n. 32 (1985)). Ap­

plying this standard, the Third Circuit has found exclu­

sionary contracts to be anticompetitive where they re­

quire dealers to exclude new entrants in order to retain

1 See Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320 (1961).

3

access to a monopolist’s “necessary products,” ZF Meri­

tor, LLC v. Eaton Corp., 696 F.3d 254, 277 (3d Cir. 2012),

or “to avoid being severely penalized financially,”

LePage’s, 324 F.3d at 159; United States v. Dentsply Int’l,

Inc., 399 F.3d 181,190 (3d Cir. 2005). Similarly, the Elev­

enth Circuit found a monopolist’s exclusionary contracts

to be anticompetitive where they made it

“infeasible for distributors to switch” to new entrants.

McWane, Inc. v. FTC, 783 F.3d 814, 834 (11th Cir. 2015)

(quotation marks and alteration omitted). And the D.C.

Circuit affirmed a finding of exclusionary conduct where

Microsoft’s exclusive deals had “a significant effect in pre­

serving its [operating system] monopoly; they help[ed]

keep usage of Navigator below the critical level necessary

for Navigator or any other rival to pose a real threat to

Microsoft’s monopoly.” United States v. Microsoft Corp.,

253 F.3d 34, 71 (D.C. Cir. 2001) (en banc). These deci­

sions recognize that “exclusive dealing arrangements”

“harm competition” if they “can exclude equally efficient

(or potentially equally efficient) rivals.” ZF Meritor, 696

F.3d at 281.

This does not mean exclusive dealing by a monopolist

is per se unlawful. These courts apply the “rule of reason,”

asking whether the ‘“probable effect’ [of the exclusive con­

duct] is to substantially lessen competition in the rele­

vant market,” ZF Meritor, 696 F.3d at 268, and, if so,

whether the monopolist’s conduct can nonetheless be jus­

tified by “valid business reasons,” LePage’s, 324 F.3d at

163; e.g., Conwood Co. u. U.S. Tobacco Co., 290 F.3d 768,

783 (6th Cir. 2002).

In some exclusive dealing cases, other circuits have in­

stead applied a “price-cost” safe harbor—a rule of per se

legality. See, e.g., Cascade Health Sols. u. PeaceHealth,

515 F.3d 883, 900 (9th Cir. 2008) (“part[ing] ways with

4

the Third Circuit by adopting a cost-based standard”).

Drawing from this Court’s predatory pricing (as opposed

to exclusive dealing) precedents, they have held that a

monopolist’s conduct is lawful as long as the monopolist’s

prices “are above some measure of incremental cost.” Id.

at 901 (citing Brooke Grp. Ltd. v. Brown & Williamson

Tobacco Corp., 509 U.S. 209, 223 (1993)). Although it dif­

fers from the rule-of-reason analysis by interposing a

new threshold defense, the price-cost safe harbor also de­

rives from the equally efficient competitor principle. It is

premised on the idea that exclusion achieved through

above-cost discounts can be attributable to the monopo­

list’s ‘“lower cost structure ... and so represents competi­

tion on the merits.’” Concord Boat Corp. v. Brunswick

Corp., 207 F.3d 1039, 1061 (8th Cir. 2000) (quoting

Brooke Grp., 509 U.S. at 223).

In this case, there was robust evidence that respond­

ents (collectively, Mylan) intentionally maintained their

monopoly by structuring exclusionary contracts so that

an equally efficient competitor could not access the mar­

ket. As one buyer told petitioner Sanofi, even a 100% dis­

count—giving its products away for free—would not be

enough to access consumers, because of the penalty

Mylan would inflict for allowing competition. But the

court of appeals never even considered this or other evi­

dence showing that Mylan wielded monopoly power to

exclude competition and maintain its monopoly. Instead,

the court deemed this evidence immaterial as a matter of

law and then granted summary judgment to Mylan.

1. For decades, EpiPen held an entrenched monopoly

in the market for epinephrine auto-injectors, devices

used to treat a life-threatening allergy condition called

anaphylaxis. As Mylan, the seller of EpiPen, put it: “we

are the market for anaphylactic shock with over 98%

5

market share.” 6 CA10 Joint Appendix (“JA”) 1142. EpiPen was the only device patients knew, the only one that

a network of grandparents, babysitters, and school

nurses were trained to use in life-threatening emergen­

cies. According to Mylan’s sworn testimony in a different

case, “substitution” away from EpiPen “presents a dis­

tinct concern for patient safety.” 4 JA 809.

The evidence in this case showed that a substantial

portion of Mylan’s monopoly market share—as much as

70%—was non-contestable, meaning that consumer de­

mand is “sticky” and would not move to a new rival in the

short term. A new entrant could compete only for the con­

testable portion of the market, as patients and their net­

works of caretakers gradually became acchmated to a dif­

ferent emergency-use device.

The evidence also showed that Mylan used its non­

contestable share and monopoly power to maintain its

monopoly and prevent competition from EpiPen’s first

and only true rival, Sanofi’s Auvi-Q. Launched in 2013,

Auvi-Q had the same active ingredient as EpiPen (epi­

nephrine) but a new and more advanced means of deliv­

ery.

Aware that Auvi-Q “will be a significant threat to our

EpiPen business,” App. 104a, Mylan resolved to ‘block

further competition,” 51 CA10 Sealed Joint Appendix

(“SJA”) 11498, and “restructure [its existing] contracts

for exclusivity,” App. 15a. To prepare for Auvi-Q’s launch,

Mylan—which then had over 99% market share -exercised its monopoly pricing power to raise EpiPen prices

three times, by 30%, in a single year. Then it offered

pharmacy benefit managers (PBMs), who negotiate drug

prices and coverage for insurers, a steep discount off

those increased prices—but only if they agreed to exclude

Auvi-Q from insurance coverage. As one Mylan executive

6

explained, “We will only pay rebates if a client is willing

to exclude Auvi-Q.” App. 215a.

Mylan’s non-contestable share and monopoly power

ensured that its discount offers (conditioned on exclu­

sion) would be much more valuable to PBMs than

Sanofi’s or any potential rival’s, regardless of efficiency.

A PBM that refused to exclude Auvi-Q would have to pay

the undiscounted price for the share of EpiPens that was

non-contestable. And with Mylan’s monopoly pricing

power, it could set the undiscounted price at a level that

would offset any potential discount offered by a competi­

tor. The court below illustrated this effect using the ex­

ample of a monopolist with non-contestable share of

70%—within the range that Mylan itself claimed was

non-contestable during this period, and the range of non­

contestable share found by Sanofi’s expert (and deemed

admissible by the district court). As the court explained,

if monopolist Firm A offered distributors a 10% rebate

conditioned on excluding Firm B, then “Firm B would

need to offer a 33.3% rebate on each widget to make the

distributor indifferent between (a) buying exclusively

Firm A’s widgets or (b) buying seven widgets from Firm

A, and three from Firm B.” App. 84a n.21.

And, of course, if the monopolist offered rebates higher

than 10% conditioned on exclusion—as Mylan did—the

rival would have to discount its products even further. A

monopolist with high non-contestable share can compel

a rival to discount its products over 100%—pay the buyer

to take the product—just to access the contestable por­

tion of the market. A monopolist with non-contestable

share can therefore break the competitive process to

maintain its monopoly. It can prevent equally or more ef­

ficient competitors from competing by setting the delta

between its undiscounted and discounted prices large

7

enough so that the rival could never close the gap. And it

can exclude competition in this way while continuing to

earn monopoly profits and raise prices for consumers.

That is exactly what Mylan did. Market analysts cor­

rectly predicted that Sanofi would need to provide re­

bates multiples higher than Mylan to even merit consid­

eration. 51 SJA 11368. After hiking up prices 30% to an­

ticipate Auvi-Q’s launch, Mylan began offering much big­

ger discounts than it had in the past, but conditioning

them on exclusion (even though no device in this class

had ever been excluded from insurance coverage).2

There was a mountain of evidence—unmentioned by

the court of appeals—that Mylan wielded monopoly

power to exclude competition on grounds other than effi­

ciency. For example, the largest PBM, Express Scripts

Inc. (ESI), told Sanofi that a 100% discount would not be

enough to access the market. And it was not just talk.

ESI excluded Auvi-Q even though Sanofi offered to dis­

count more than Auvi-Q’s entire book of business with

ESI—$18 million in savings on a different Sanofi prod­

uct—just to allow Auvi-Q to reach consumers. Sanofi

later had to double that amount to $36 minion, an effec­

tive Auvi-Q discount of well over 100%, just to claw back

the access required to even attempt to compete against

EpiPen.

Another PBM reported being held “hostage” by

Mylan’s exclusionary tactics. And yet another large

PBM, Medlmpact, excluded Auvi-Q only after Mylan ex­

plicitly threatened to punish it using non-contestable

2 As Auvi-Q was preparing to launch, PBMs widely reported that

their “main objective [was] to provide easy and open access” to all ep­

inephrine auto-injectors. 16 JA 3535. But Mylan knew PBMs would

be “heavily impacted if they workfed] against us,” and that the threat

of ‘lost rebate $’s” could be leveraged to exclude Auvi-Q. App. 125a.

8

share. Sanofi had offered a better per-unit price, and

Medlmpact first told Mylan—but not Sanofi—that it

would prefer Auvi-Q and exclude EpiPen. Mylan shot

back that even if EpiPen were blocked, EpiPen would

still “maintain!] 40% - 70% market share,” App. 236a.

And Mylan threatened to “terminate its current con­

tract,” and require Medlmpact’s members to buy EpiPen

at a higher list price. 36 SJA 8101. Medlmpact and

Mylan then quickly agreed on a revised Mylan offer to

exclude Auvi-Q instead. When Sanofi heard this “surpris­

ing news,” 5 JA 902, it went to Medlmpact that very same

day and asked for a chance to increase the offer, 29 SJA

6429. But Medlmpact refused even to consider any terms

Sanofi might propose. Medlmpact later told Sanofi that

it would need to double Mylan’s rebate to “even open the

conversation” about restoring access. App. 155a.

Sanofi’s internal, contemporaneous analysis con­

firmed that no Auvi-Q price could be low enough to offset

Mylan’s access penalty: “Epi-Pen’s high market share

coupled with high discount creates an obstacle that can­

not be overcome via discounting.” Appellant’s Br. 39, ECF

No. 010110529173 (emphasis added). In particular,

Sanofi’s analysis showed that, because of EpiPen’s domi­

nant market position, Sanofi would have to discount

Auvi-Q by more than 100% to offset the “increase in Ep­

iPen’s cost to [the] plan” if the plan gave access to AuviQ. Id. In other words, a competitor (even a more efficient

one) could not access the market by offering a better

product at a better price than EpiPen.

Mylan’s plan to “block further competition” worked

exactly as Mylan intended. 51 SJA 11498. Its exclusion­

ary contracts with PBMs blocked Auvi-Q from approxi­

mately 31% of the market. Mylan then amplified this

foreclosure using what it called the “spillover effect.”

9

Mylan’s research confirmed that doctors would not regu­

larly prescribe Auvi-Q unless it was covered by more in­

surers. So Mylan devised a marketing plan to “put Sanofi

out of business,” App. 149a, in which Mylan sales repre­

sentatives warned doctors not to prescribe Auvi-Q be­

cause one-third of their patients would be unable to get

it. Mylan also knew the exclusions would cause some doc­

tors to “erroneously presume [EpiPen] is safer or more ef­

fective than [Auvi-Q],” 4 JA 816, and Mylan’s marketing

materials actively promoted this misunderstanding,

falsely suggesting Auvi-Q had been excluded for “clinical”

reasons, App. 150a.

Even as it excluded its only competitor, Mylan contin­

ued to increase prices for the EpiPen. Indeed, even

Mylan’s net price—after the substantial rebates it paid to

exclude Auvi-Q—rose from $111 in early 2013, the year

Auvi-Q launched, to $150 in late 2015, when Auvi-Q was

taken off the market. Mylan’s profits per pen in 20132015 (when Auvi-Q was on the market) far exceeded

2012 (pre-Auvi-Q) levels. App. 119a. That Mylan’s net

price increased when there was competition shows the

competitive process was broken.

2.a Sanofi filed this Sherman Act § 2 monopolization

case against Mylan in the District of New Jersey in 2017.

The Judicial Panel on Multidistrict Litigation trans­

ferred the case to the District of Kansas. Following the

close of coordinated discovery with the other cases in

Kansas, Sanofi requested a remand to the District of New

Jersey, but the District Court for the District of Kansas

declined.

In December 2020, the district court issued two deci­

sions relevant to this petition. One decision rejected

Mylan’s Daubert challenge to the opinion of Sanofi’s ex­

pert economist concerning Mylan’s non-contestable (or

10

entrenched) share. The court deemed this evidence suit­

able for a jury because the expert “provided a reliable ba­

sis for considering each piece of evidence to reach her con­

clusion that Mylan had an entrenched share of 50-70% of

the [epinephrine auto-injector] market.” In re EpiPen

(Epinephrine Injection, USP) Mktg., Sales Pracs. & Anti­

trust Litig., No. 17-md-2785-DDC-TJJ, at 77 (D. Kan.

Dec. 17, 2020), ECF No. 2253-1. Mylan did not appeal

this Daubert ruling.

The second decision granted summary judgment to

Mylan. The district court concluded “that Mylan’s exclu­

sive contracts were relatively short in duration and easily

terminable, they were not the product of any unlawful

coercion on Mylan’s part, and they didn’t foreclose Sanofi

from competing in the [epinephrine auto-injector] mar­

ket.” App. 230a. Sanofi appealed the order granting sum­

mary judgment.

2.b. The Tenth Circuit affirmed. Despite this Court’s

admonition that anticompetitive conduct is “not to be

judged by dismembering it and viewing its separate

parts, but only by looking at it as a whole,” Conti, Ore Co.

u. Union Carbide & Carbon Corp., 370 U.S. 690, 699

(1962), the Tenth Circuit took the opposite approach: “We

reject this argument. For the sake of accuracy, precision,

and analytical clarity, we must evaluate Mylan’s exclu­

sionary conduct separately.” App. 42a (citation omitted).

The court therefore did not consider the significance of

' Mylan’s non-contestable share until page 77 of its deci­

sion.

When it finally reached the issue, the court held that

Mylan’s use of non-contestable share was immaterial as

a matter of law. The court therefore never even men­

tioned (in its 89-page opinion) the evidence that Mylan

used non-contestable share and monopoly pricing power

11

to structure exclusionary contracts so that equally effi­

cient competitors could not compete. The court never

mentioned, for example, that ESI told Sanofi a 100% dis­

count would not be enough to access the market; that

Mylan told Medlmpact EpiPen would retain 40%-70%

share if Medlmpact tried to exclude it; that Sanofi’s con­

temporaneous internal analysis showed it would need

discounts above 100% to offset Mylan’s penalty for giving

access to Auvi-Q; or other similar evidence.

Instead of examining the facts in the summary judg­

ment record, the court searched for a theory. Sanofi had

provided it with one that would have prevailed in other

circuits: “Because giving Auvi-Q away for free would not

have been enough to access consumers at the largest

payor, this was clearly a market where an equally effi­

cient competitor was unable to compete.” Reply Br. 7,

ECF No. 010110594702 (quotation omitted). But the

Tenth Circuit believed some additional “legal standard”

was needed to “evaluate [whether] Mylan’s leveraging of

entrenched share ... is a material issue of fact.” App. 85a.

It rejected what it described as the “legal theory Sanofi

seemed implicitly to rely upon,” which it called “LePage’s

per se illegality” standard. App. 89a. But LePage’s did

not apply a per se liability rule. It was a rule-of-reason

(not per se) case, just like this one.3

Having rejected Third Circuit precedent—under

which Mylan’s non-contestable share plainly is mate-

3 The lower court stated that “Sanofi wisely disclaim [ed] the per se

test” at oral argument, which the court then construed to be a “disavow[al]” of LePage’s. App. 85a, 89a. But since LePage’s actually ap­

plied a rule-of-reason standard, Sanofi’s acknowledgement at oral ar­

gument that this is a rule-of-reason case did not implicitly disavow

LePage’s or any of the other precedents Sanofi relied on.

12

rial—the court faulted Sanofi for “not provid[ing]” a dif­

ferent theory. App. 84a-85a. It identified what it said

were three alternatives, but none of the supposed alter­

natives was actually a theory of liability. Two of them

were safe harbors—per se rules of nm-liability that oper­

ate as threshold defenses. Those are the price-cost test

and the discount-attribution test.

The price-cost test—which this Court has applied to

predatory pricing, but never exclusive dealing—states

that a defendant’s pricing behavior cannot give rise to an­

titrust liability unless “the prices complained of are below

an appropriate measure of [the defendant’s] costs.”

Brooke Grp., 509 U.S. at 222; see also Eisai, Inc. v. SanofiAventis U.S., LLC, 821 F.3d 394, 409 (3d Cir. 2016) (un­

der “the price-cost test... above-cost pricing ... is per se

legal”). The discount-attribution test is an application of

“Brooke Group’s safe harbor for above-cost discounting”

to bundled product discounts, which are not present in

this single-product case. Cascade, 515 F.3d at 904.4

The point of the price-cost test (and its discount-attrib­

ution application) is to provide a safe harbor for low

prices unless “discounts have the potential to exclude a

hypothetical equally efficient” competitor. Cascade, 515

F.3d at 906. But a monopolist with high non-contestable

share undoubtedly can exclude equally or more efficient

competitors. If it conditions discounts on exclusion, it can

set the delta between its undiscounted and discounted

4 A “bundled discount” is when a buyer must purchase specified

amounts of Product A to receive a discount on a different Product B.

The ‘“discount attribution’ standard” holds that there is no liability

for such discounts unless, after allocating the “the full amount of the

discounts ... to the competitive product,” the “resulting price of the

competitive product ... is below the defendant’s incremental cost.”

Cascade, 515 F.3d at 906.

13

prices so that a rival would have to discount over 100%

to access the contestable portion of the market. And be­

cause the monopolist’s smaller discounts go further (they

apply to non-contestable share too), the monopolist can

exclude equally efficient rivals while keeping its dis­

counted price above its own marginal cost.

The other alternative “theory” the court of appeals

considered also is not a theory of liability. “Effective En­

trant Burden” (EEB) is a tool proposed by Sanofi’s expert

to explain the burden a monopolist’s non-contestable

share places on new market entrants. Unlike the expert’s

conclusion that Mylan had non-contestable share of 50%70%—which the district court found to be “reliable” in its

Daubert ruling—EEB did not survive a Daubert chal­

lenge. That means Sanofi’s expert could not use EEB at

trial. But it does not mean direct evidence that Mylan ac­

tually used non-contestable share and monopoly pricing

power to exclude competition is immaterial to whether

Mylan intentionally maintained its monopoly.

Because the court did not consider Mylan’s leveraging

of non-contestable share to be material, the remainder of

its analysis ignored Mylan’s non-contestable share. The

court found Sanofi was not substantially foreclosed from

competing “because Mylan’s exclusive rebate agreements

were short and easily terminable.” App. 55a. Other cir­

cuits hold that exclusive contracts are not terminable

when, “‘in spite of the legal ease with which the relation­

ship can be terminated, the distributors have a strong

economic incentive to continue buying defendant’s prod­

uct.’” McWane, 783 F.3d at 834 (quoting Dentsply, 399

F.3d at 194) (cleaned up). That was certainly true here,

but the evidence—like ESI saying 100% discount

wouldn’t be enough—involved Mylan’s non-contestable

share, so the court disregarded it. Similarly, the court

14

held Sanofi was not foreclosed because of “the absence of

any coercion,” even though Mylan actually did coerce

payors by leveraging EpiPen’s non-contestable share

(like its threat to Medlmpact to charge full price for the

40%-70% of the market it said it would retain if Medlm­

pact tried to exclude EpiPen instead of Auvi-Q). App. 57a.

And the court found that “exclusive rebate agreements

were a normal competitive tool,” without acknowledging

that Mylan’s monopoly and non-contestable share made

its exclusionary demands anything but “normal” or that

no device in this class had ever been excluded before

Auvi-Q. App. 60a.

The court applied its theory-instead-of-facts approach

to disregard other culpable conduct too. Mylan knew (as

confirmed by its market research) that many doctors

would not prescribe Auvi-Q unless it substantially in­

creased its insurance coverage. Mylan explained this in a

presentation it called “Understanding the ‘spill over’ ef­

fect.” App. 148a-149a. But according to the Tenth Circuit,

the spillover effect didn’t exist. Substituting its own view

of economic theory for the actual behavior of market ac­

tors, the court (incorrectly) stated that “[s]pillover fore­

closure is predicated on a breakdown of rational behav­

ior,” which it called “a foundational principle of modern

economics,” and it therefore “refuse[d] to recognize” spill­

over. App. 64a-66a.5 But see Dentsply, 399 F.3d at 189

(“The Supreme Court on more than one occasion has em­

phasized that economic realities rather than a formalistic

approach must govern review of antitrust activity.”).

5 It is perfectly rational for doctors to prescribe the dominant firm’s

product that is covered by insurance, rather than the new entrant’s

product that might not be covered.

15

REASONS FOR GRANTING THE PETITION

Except for the Tenth Circuit below, lower courts

broadly agree that the exercise of monopoly power is an­

ticompetitive if it would exclude an equally efficient com­

petitor from the market. The lower courts diverge only on

the question of how to best implement that standard at

summary judgment. The Third, Sixth, and Eleventh Cir­

cuits apply a traditional rule-of-reason analysis, review­

ing the full factual record for evidence that a monopolist

has excluded rivals “on some basis other than the mer­

its.” In the Eighth and Ninth Circuits, by contrast, the

plaintiff must first surmount a cost-based filter and

prove that the monopolist priced below its marginal

costs, before the Court will review the full record for an­

ticompetitive conduct. The Tenth Circuit jettisoned both

approaches and blazed a third path, in which it declined

to apply the price-cost filter, yet still refused to consider

directly relevant evidence. In the Third, Sixth, and the

Eleventh Circuit, the direct evidence that Mylan’s con­

duct was designed to exclude equally or more efficient ri­

vals—for example, ESI’s statement that even a 100% dis­

count would not be sufficient for competitors to access the

market—would plainly be material to whether Mylan

unlawfully maintained its monopoly and impermissibly

foreclosed the market. But the Tenth Circuit would not

even consider it.

The question presented carries considerable im­

portance to consumers and the business community

alike. But because this Court has not addressed exclu­

sive dealing for over sixty years, lower courts have

been left with the awkward task of retrofitting those

precedents to address modern commercial realities.

That exercise has left the circuits divided and con­

fused, and left the market without guidance on

16

whether and when a monopolist’s exclusive dealing vi­

olates the antitrust laws. This Court’s intervention is

necessary.

The court of appeals’ decision is also wrong. The

summary judgment evidence showed that Mylan penal­

ized dealers so severely for carrying Sanofi’s product that

Sanofi had to discount over 100% just to access consum­

ers through the largest dealer in the market. The Tenth

Circuit deemed that evidence. immaterial, despite the

fact that it bears directly on whether an equally efficient

competitor could access the market. That was contrary to

this Court’s settled approach, which is to “resolve anti­

trust claims on a case-by-case basis, focusing on the ‘par­

ticular facts disclosed by the record.”’ Eastman Kodak Co.

v. Image Tech. Serus. Inc., 504 U.S. 451, 467 (1992) (cita­

tion omitted). The Court should grant certiorari, reverse

the Tenth Circuit’s judgment, and inject some muchneeded clarity into the law of exclusive dealing.

I. The Circuit Courts Are in Conflict as to When Exclusive

Dealing by a Monopolist Raises a Triable Question at

Summary Judgment

Mylan explicitly conditioned discounts on excluding

rivals, and its discount structures were “heavily

weighted” toward exclusion. 55 SJA12405. There was di­

rect evidence that Mylan’s conduct would exclude equally

or more efficient rivals—including ESI telling Sanofi that

a 100% discount would not be sufficient to access the

market. This and other similar evidence is obviously ma­

terial to whether Mylan intentionally maintained its mo­

nopoly and harmed the competitive process.

And it would have been treated as material in other

circuits. While the courts of appeals have adopted differ­

ent tests for exclusive dealing claims involving discount-

17

ing, all of them—except the Tenth Circuit—at least at­

tempt to adhere to the equally efficient competitor prin­

ciple. In a case similar to this one, the Third Circuit sus­

tained liability where a monopolist “used its position as a

supplier of necessary products to persuade [buyers] to en­

ter into [exclusive] agreements.” ZF Meritor, 696 F.3d at

277. Like in this case, “losing the [monopolist] as a sup­

plier was not an option,” and if dealers purchased from a

new entrant “there would still have been a significant de­

mand from [consumers] for [the monopolist’s] products.”

Id. at 278. Upholding liability for monopolization, the

Third Circuit explained that the monopolist’s “exclusive

dealing arrangements can exclude equally efficient (or

potentially equally efficient) rivals, and thereby harm

competition, irrespective of below-cost pricing.” Id. at

281.

Similarly, in LePage’s—which the Tenth Circuit mis­

understood to be a “per se illegality” case—the en banc

Third Circuit said of bundled discounts that “even an

equally efficient rival may find it impossible to compen­

sate for lost discounts on products that it does not pro­

duce.” 324 F.3d at 155 (quoting Phillip E. Areeda & Her­

bert Hovenkamp, Antitrust Law ,^f 749, at 83-84 (Supp.

2002)). And in another Third Circuit case, where a plain­

tiff accused Sanofi of leveraging “incontestable demand”

for a medication, the court rejected the claim because of

a failure of proof: “[N]othing in the record indicates that

an equally efficient competitor was unable to compete

with Sanofi.” Eisai, 821 F.3d at 406. Here, by contrast,

there is abundant evidence that equally efficient compet­

itors could not compete with Mylan’s EpiPen, yet the

Tenth Circuit deemed that evidence immaterial as a

matter of law.

18

Other circuits faced with exclusive dealing claims

likewise hold—contrary to the Tenth Circuit—that the

exercise of monopoly power to exclude rivals without re­

gard to efficiency is anticompetitive. Following guidance

from this Court, the Sixth Circuit has explained in a case

involving exclusive dealing and other misconduct that

“‘[i]f a firm has been attempting to exclude rivals on some

basis other than efficiency, it is fair to characterize its be­

havior as predatory or exclusionary.” Conwood, 290 F.3d

at 783 (quoting Aspen Skiing., 472 U.S. at 605). Simi­

larly, the Eleventh Circuit found exclusive dealing to be

anticompetitive where the monopolist “made it infeasible

for distributors to drop the monopolist 0 and switch to [a

rival].” McWane, 783 F.3d at 838.

The U.S. Department of Justice too has explained that

exclusionary conduct like Mylan’s is anticompetitive:

[C]ommentators and panelists generally

agree that even where a single-product loy­

alty discount is above cost when measured

against all units, such a discount may in

theory produce anticompetitive effects, es­

pecially if customers must a carry a certain

percentage of the leading firm’s products

and the discount is structured to induce

purchasers to buy all or nearly all needs be­

yond that “uncontestable” percentage from

the leading firm.

U.S. Dep’t of Just., Competition and Monopoly: SingleFirm Conduct Under Section 2 of the Sherman Act 107

19

(2008) (emphasis added), available at https://www.justice. gov/sites/default/files/atr/legacy/2009/05/11/236681.pdf.6

Exclusionary contracts that leverage non-contestable

share are anticompetitive because it is not the low (dis­

counted) price that does the dirty work. It is the differ­

ence between that price and the high (undiscounted)

price—set using the monopolist’s pricing power—that co­

erces the exclusion of rivals. Even the most efficient new

market entrant cannot compete against the penalty (un­

discounted) price the monopolist can inflict on dealers for

giving a competitor market access. As the Justice Depart­

ment put it, when buyers “must purchase some substan­

tial quantity from the monopolist,” they “effectively are

coerced by the structure of the discount schedule (as op­

posed to the level of the price) to buy all or substantially

all of the supplies they need from the monopolist. Where

such a result occurs, the Department believes that the

volume discount structure would unlawfully foreclose

competing suppliers ... and thus may be challenged.”

Competitive Impact Statement at 18, United States u.

Microsoft Corp., 56 F.3d 1448 (D.C. Cir. 1995) (No. 941564)

(emphasis

added),

available

at

http://www.usdoj.gov/ atr/cases/f0000/0045.pdf.

In some circuits, defendants may assert a price-cost

(or, in certain cases, discount-attribution) safe harbor to

exclusive dealing claims involving discounting. These

6 The Justice Department subsequently withdrew this report be­

cause it was not sufficiently “aggressiveO” in its approach to monop­

olist who “use their dominance in the marketplace to stifle competi­

tion.” See Press Release, U.S. Dep’t of Just., Justice Department

Withdraws Report on Antitrust Monopoly Law (May 11, 2009), avail­

able at https://www.justice.gov/opa/pr/justice-department-withdraws-report-antitrust-monopoly-law.

20

courts permit monopolists to point to above-cost pricing

as a threshold defense, without a full rule-of-reason anal­

ysis. The price-cost defense is not available here because

Mylan relied on non-contestable share (rather than low

prices) to exclude competition. See ZF Meritor, 696 F.3d

at 277 (“[B]ecause price itself was not the clearly predom­

inant mechanism of exclusion, the price-cost test cases

are inapposite, and the rule of reason is the proper frame­

work ....”). But even when it does apply, the price-cost (or

discount-attribution) test attempts to discern whether a

monopolist’s conduct could exclude equally efficient ri­

vals. When low prices are the mechanism of exclusion, “a

firm’s ability to offer above cost discounts is attributable

to ‘the lower cost structure of the alleged predator’”—in

other words, attributable to efficiency—“‘and so repre­

sents competition on the merits.”’ Concord Boat, 207 F.3d

at 1061 (quoting Broolze Grp., 509 U.S. at 223). The dis­

count-attribution safe harbor applies this principle to

bundled discounts, “mak[ing] the defendant’s bundled

discounts legal unless the discounts have the potential to

exclude a hypothetical equally efficient producer.” Cas­

cade, 515 F.3d at 906.

When monopolists, like Mylan, can force new entrants

to discount over 100% to access consumers, there is no

question the monopolists can exclude equally efficient ri­

vals. Regardless of efficiency, a competitor must price be­

low zero—pay the buyer—in order to compete against the

monopolist. The summary judgment record shows that

this is precisely what happened in this case. But the

Tenth Circuit deemed this evidence immaterial as a mat­

ter of law. That holding conflicts with the law of other

circuits, the standards advanced by the Justice Depart­

ment, and the decisions of this Court. See Aspen Skiing,

472 U.S. at 604 (monopolist’s conduct is anticompetitive

21

when it “attempt [s] to exclude rivals on some basis other

than efficiency”) (quotation omitted).

II. The Question Presented Is Important and Merits This

Court’s Review

Exclusive dealing is a commonly used “improper

means of maintaining a monopoly,” Dentsply, 399 F.3d at

187. Not all exclusive dealing is anticompetitive, but it is

of particular concern when practiced by a monopolist be­

cause “a dominant firm can impose exclusive deals on

downstream dealers to strengthen or prolong its market

position,” McWane, 783 F.3d at 827 (quoting IIIB Philip

E. Areeda & Herbert Hovenkamp, Antitrust Law

If 760b7, at 54 (3d ed. 2008) (cleaned up)). Despite the fre­

quency and importance of this conduct, no one—neither

businesses nor courts—can say with any confidence

when exclusive dealing will be actionable. As a result,

monopolistic conduct goes unchecked, competition and

innovation are stifled, and consumers ultimately pay the

price.

This Court “most recently considered an antitrust

challenge to an exclusive contract in Tampa Electric,”

more than sixty years ago. Microsoft Corp., 253 F.3d at

68. The Tenth Circuit found Tampa Electric to be “not

particularly illuminating.” App. 46a. In the absence of ex­

clusive-dealing precedents from this Court, the lower

courts have attempted to adapt principles from other ar­

eas of antitrust law that present different considerations.

The result is that courts cannot agree (and parties cannot

know) what test the courts will apply or even what they

are testing for.

This case illustrates the confusion. The court of ap­

peals disregarded the equally efficient competitor stand­

ard Sanofi had asserted, and faulted Sanofi for not pro-

22

posing a cost-based standard like the price-cost or dis­

count-attribution test. The Eighth and Ninth Circuits

have applied cost-based standards in exclusive-dealing

cases involving (multi-product) discounting, and the dis­

senters in LePage’s (including then-Judge Alito) would

have done so as well. See Cascade, 515 F.3d at 900

(“parting] ways with the Third Circuit by adopting a

cost-based standard”); Concord Boat, 207 F.3d at 1061

(same); LePage’s, 324 F.3d at 181 (Greenberg, J., dissent­

ing) (same); see also ZF Meritor, 696 F.3d at 351 (Green­

berg, J., dissenting) (“I believe the Supreme Court’s prec­

edent compels ... applying... the Brooke Group price-cost

test and granting a presumption of lawfulness to ...

above-cost prices”). The Tenth Circuit believed “the

price-cost test has some benefits,” which it apparently did

not find in the equally efficient competitor principle. App.

88a n.26.

The irony is that the whole point of the price-cost test

is to apply the equally efficient competitor principle when

a monopolist uses low prices to exclude rivals. See, e.g.,

ZF Meritor, 696 F.3d at 333 (Greenberg, J., dissenting)

(“This point is precisely where the Brooke Group pricecost test comes into play.... [Wjhere the contract... pro­

vides discounted but above-cost prices ... any equally ef­

ficient competitor ... had an ongoing opportunity to offer

competitive discounts to capture the ... business.”). But

since even 100% discount was not sufficient for Sanofi to

access the market through the largest PBM (ESI), Sanofi

obviously could not “capture the business” merely by

beating Mylan’s prices. And Mylan did not use low prices

to exclude Auvi-Q. It used high prices—the monopoly

rent it would charge on the “40% - 70% market share” it

told Medlmpact it would maintain even if EpiPen were

23

blocked. App. 236a. That is how Mylan could raise EpiPen’s net price from $111 to $150 while simultaneously

excluding a new rival. And, apart from being inapplica­

ble, the price-cost test was not even in the right ballpark:

it is a “safe harbor for above-cost discounting” to be de­

ployed (if at all) as a threshold defense—not, as the Tenth

Circuit believed, as a theory of materiality. Cascade, 515

F.3d at 904 (emphasis added).

This Court has “repeatedly emphasized the im­

portance of clear rules in antitrust law.” Poe. Bell Tel. Co.

v. linkLine Commons, 555 U.S. 438, 452 (2009). And this

Court has explained that “[s]ummary judgments”—like

the one granted here—“have a place in the antitrust

field” because “[s]ome of the law in this area is so well

developed that... the rule at times can be divined with­

out a trial.” White Motor Co. v. United States, 372 U.S.

253, 259 (1963).

No one could seriously describe the law of exclusive

dealing as “clear” or “well developed” after the 60+ year

hiatus since this Court last addressed it. The lower courts

do not know what test to apply or why. Some monopolists

believe (with support in the pages of the Federal Reports)

that they will be immune from any antitrust liability as

long as they price above their own incremental cost.

Other businesses believe (again with caselaw support)

that no such immunity exists in exclusive dealing cases

like this one. Without clear rules, firms cannot conform

their conduct to the law; parties variously over- and under-enforce the Sherman Act; and the innovation from

competition never fully materializes.

III. The Decision Below Is Incorrect

When a new market entrant cannot give away a bet­

ter mousetrap for free because of the penalties the mo­

nopolist will inflict, that market is not competitive. Yet

24

the Tenth Circuit concluded this fact was not even mate­

rial to whether Mylan intentionally maintained its mo­

nopoly. So the court never mentioned that ESI told

Sanofi a 100% discount on Auvi-Q would not be sufficient

to access consumers and compete side-by-side with EpiPen. Just like the court never mentioned Mylan’s threat

to Medlmpact—after Medlmpact said it would accept

SanofTs better-priced offer—that Mylan would maintain

“40 - 70% market share” even if Medlmpact excluded it,

and would cancel its contract so the plan would have to

buy those millions of EpiPens at monopoly-increased

prices. Like the court never mentioned SanofTs internal,

contemporaneous analysis concluding that “Epi-Pen’s

high market share coupled with high discount creates an

obstacle that cannot be overcome via discounting.” Appel­

lant’s Br. 39, ECF No. 010110529173 (emphasis added).

Instead, the court vanquished this and other purportedly

immaterial evidence from the record and then deter­

mined that “the clear answer to SanofTs problem was of­

fering better prices.” App. 17a.

That was contrary to this Court’s settled approach,

which is to “resolve antitrust claims on a case-by-case ba­

sis, focusing on the ‘particular facts disclosed by the rec­

ord.”’ Eastman Kodak, 504 U.S. at 456 (citation omitted,

emphasis added). Accepting SanofTs evidence as true for

summary judgment, Mylan’s conduct was plainly anti­

competitive. It leveraged its monopoly pricing power and

non-contestable network of users to exclude its only po­

tential rival so it could maintain its EpiPen monopoly.

And there is no doubt Mylan’s exclusionary tactics would

keep equally efficient competitors from accessing con­

sumers. No producer is so efficient that it can discount its

products over 100% and still turn a profit.

25

The Tenth Circuit’s approach permits monopolists

like Mylan to break the competitive mechanism and de­

prive consumers of the protections of the antitrust laws.

In Tampa Electric, this Court held a plaintiff must show

that the “probable effect” of an exclusion is to “substan­

tially lessen competition in a line of commerce.” 365 U.S.

at 326, 329. In Sherman Act § 2 cases like this one (in­

volving unilateral action by a monopolist), courts find

substantial foreclosure “even though the contracts fore­

close less than the roughly 40% or 50% share usually re­

quired in order to establish a § 1 violation” (involving con­

certed activity). Microsoft, 253 F.3d at 70. Mylan’s exclu­

sive contracts locked Sanofi out of 31% of the market, and

Mylan amplified that foreclosure to more than half the

market with what it called “the spillover effect.”

Beyond that, Mylan—which had over 99% of the mar­

ket when Auvi-Q launched—intentionally excluded its

only potential rival before the rival could build up suffi­

cient market share to compete. As Mylan put it: “[I]f we

d[o] not begin our ‘war game’ scenarios now and begin to

restructure contracts [for exclusivity] now we may be too

late to do it after Auvi-Q gets momentum.” App. 15a.

In other circuits, a monopolist cannot maintain its mo­

nopoly by smothering a new entrant in its infancy:

“When a monopolist’s actions are designed to prevent one

or more new or potential competitors from gaining a foot­

hold in the market by exclusionary, i.e. predatory, con­

duct, its success in that goal is not only injurious to the

potential competitor but also to competition in general.”

LePage’s, 324 F.3d at 159; see also McWane, 783 F.3d at

836 (“[C]ompetitors and competition are linked ...: ‘in a

concentrated market with very high barriers to entry,

competition will not exist without competitors.”’) (quot­

ing Spirit Airlines, Inc. v. Nw. Airlines, Inc., 431 F.3d

26

917, 951 (6th Cir. 2005)); id. at 839 (finding harm to com­

petition where monopolist’s exclusionary contracts

“stunted the growth of... [its] only rival... and prevented

it from emerging as an effective competitor”). This case

involves a highly concentrated market with high entry

barriers, but the Tenth Circuit held that “[t]he monopo­

list’s successful elimination of a rival alone is an insuffi­

cient condition to prove harm to competition.” App. 50a.

The Tenth Circuit also held that “Mylan’s exclusive

rebate agreements were short and easily terminable,”

even though Sanofi could not restore access unless it dis­

counted over 100% (paid the buyer). App. 55a. The Third

and Eleventh Circuits, in contrast, correctly hold that,

even if contractual terms allow for termination, an exclu­

sive agreement is not easily terminable when ‘“the dis­

tributors have a strong economic incentive to continue

buying defendant’s product.”’ McWane, 783 F.3d at 834

(quoting Dentsply, 399 F.3d at 194).

The Tenth Circuit ruled against Sanofi, but consum­

ers were the real losers. Mylan prevented their insurance

plans from covering a newer, better product to address a

life-threatening health condition. And Mylan continued

to raise EpiPen’s prices for consumers, even as it ex­

cluded EpiPen’s only potential rival and maintained its

towering monopoly.

27

CONCLUSION

For the foregoing reasons, the Court should grant the

petition.

Respectfully submitted.

Joshua Halpern

Weil, Gotshal & Manges

LLP

2001 M Street NW,

Suite 600

Washington, D.C. 20036

(202) 682-7000

November 2022

Gregory Silbert

Counsel of Record

Yehudah L. Buchweitz

Eric S. Hochstadt

Weil, Gotshal & Manges

LLP

767 Fifth Avenue

New York, N.Y. 10153

(212) 310-8000

gregory.silbert@weil.com