Open Markets Institute Files Amicus Brief Urging Fourth Circuit to Revive Antitrust Claims Against Johnson & Johnson Over Stelara Monopoly
“Monopolistic Ddrug companies should not be allowed to buy up patents and use them as barriers to block lower-cost competition.” - OMI Legal Director Sandeep Vaheesan
WASHINGTON — Today, the Open Markets Institute filed an amicus brief in the U.S. Court of Appeals for the Fourth Circuit supporting CareFirst of Maryland and other plaintiffs-appellants in CareFirst of Maryland, Inc. v. Johnson & Johnson. The brief urges the court to reverse a district court ruling that allowed Johnson & Johnson to avoiddefeat antitrust claims over its alleged efforts to protect its monopoly overof Stelara, one of the company’s blockbuster biologic drugs.
Stelara is used to treat Crohn’s disease, ulcerative colitis, and other autoimmune conditions and has generated tens of billions of dollars in revenue for Johnson & Johnson since 2009. In 2020, Johnson & Johnson acquired Momenta Pharmaceuticals, including its patents related to the manufacturing of biosimilar drugs. According to the plaintiffs, Johnson & Johnson then used those patents to delay lower-cost biosimilar competition for 15 months and deprived patients and payors of billions of dollars in savings.
“Antitrust law exists to stop monopolists from using acquisitions and other exclusionaryunfair tactics to protect their dominance,” said Sandeep Vaheesan, legal director at the Open Markets Institute and co-author of the brief. “Drug companies should not be allowed to buy up patents and use them to block lower-cost competition.”
Open Markets argues that the district court wrongly imposed a heightenedspecific intent requirement underfor monopolization claims under Section 2 of the Sherman Act. The brief explains that plaintiffs in completed monopolization cases do not need to prove that a monopolist had a specific intent to monopolize. Instead, they mustonly need to show that the company used improper conduct to acquire or maintain monopoly power.
“The district court’s ruling creates a dangerous loophole for dominant corporations,” said Tara Pincock, policy counsel at the Open Markets Institute and co-author of the brief. “If allowed to stand, monopolists could maintain their power through exclusionary conduct so long as they avoid leaving behind evidence of specific intent.”
The brief also argues that acquisitions, including the acquisition of patents or other critical assets, can violate antitrust law when used by a monopolist to block rivals and raise barriers to entry. Open Markets warns that Johnson & Johnson’s alleged conduct should be evaluated as a broader exclusionary strategy, not as an isolated patent acquisition.
The Open Markets Institute’s brief asks the Fourth Circuit to reverse the district court’s order granting judgment for Johnson & Johnson.
The case is CareFirst of Maryland, Inc. v. Johnson & Johnson, No. 26-1248, before the U.S. Court of Appeals for the Fourth Circuit.