Press Release

Open Markets Defends Private Antitrust Enforcement in Medical Monopolization Case; Applauds DOJ for Siding with Plaintiffs

Washington, D.C. — Open Markets has filed an amicus brief in support of the plaintiffs appeal in a case against syringe-manufacturing giant Becton, Dickinson & Co. (Becton). The plaintiffs, who are healthcare providers, allege Becton has raised the price and lowered the supply of conventional syringes, safety syringes, and safety IV catheters.

The issue before the court is the scope of the “Illinois Brick rule,” which holds that only customers who purchase products directly from an antitrust violator can recover overcharges due to illegal conduct by the corporation. In this case, the parties that dealt directly with Becton — distributors and Group Purchasing Organizations (GPOs) — are themselves accused of conspiring in Becton’s campaign to exclude rivals. In other words, the direct purchasers are antitrust violators in their own right.

Nonetheless, the district court held that health care providers ripped off by this multi-level conspiracy enjoy no practical recourse under American law. In ruling that the plaintiffs do not have the right to recover overcharges, Open Markets argued, the district court is essentially protecting these monopolists “from public accountability.”

The U.S. Department of Justice yesterday filed a brief in the same case, also taking the side of the plaintiffs, hence of the public. This marked a surprising turnaround from recent practice, in which the DOJ has generally used its briefs to promote the interests of powerful corporations. Open Markets legal director Sandeep Vaheesan and Open Markets reporter-researcher Matthew Buck detailed this behavior last month in a New York Times op-ed.

Open Markets applauds DOJ Antitrust head Makan Delrahim for taking this stand on behalf of the public. “This is really a turnaround from ‘business as usual’ at the DOJ,” said Vaheesan. “We hope it marks the first of many efforts to target America’s grave and growing monopoly problem.”