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In Re: Actos Direct Purchaser Antitrust Litigation

MEMORANDUM OF LAW in Opposition re: 64 MOTION to Dismiss Count 1 of the Second Consolidated Complaint., 58 JOINT MOTION to Dismiss Second Consolidated Class Action Complaint for Lack of Antitrust Injury., 61 JOINT MOTION to Dismiss the Second Consolidated Complaint. . Document

122 Cited authorities

  1. Bell Atl. Corp. v. Twombly

    550 U.S. 544 (2007)   Cited 268,629 times   366 Legal Analyses
    Holding that a complaint's allegations should "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face' "

  2. Gunn v. Minton

    568 U.S. 251 (2013)   Cited 2,722 times   40 Legal Analyses
    Holding insubstantial the federal question whether patent lawyers being sued for malpractice could have succeeded in a prior federal patent suit by timely raising a particular argument, because "[n]o matter how the state courts resolve that hypothetical ‘case within a case,’ it w[ould] not change the real-world result of the prior federal patent litigation. [Plaintiff's] patent w[ould] remain invalid."

  3. Foman v. Davis

    371 U.S. 178 (1962)   Cited 28,803 times   4 Legal Analyses
    Holding that an appeal was improperly dismissed when the record as a whole — including a timely but incomplete notice of appeal and a premature but complete notice — revealed the orders petitioner sought to appeal

  4. United States v. Gypsum Co.

    333 U.S. 364 (1948)   Cited 10,475 times   7 Legal Analyses
    Holding that oral testimony in conflict with contemporaneous documentary evidence deserves little weight

  5. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.

    545 U.S. 913 (2005)   Cited 788 times   31 Legal Analyses
    Holding that “one who distributes a device with the object of promoting its use to infringe copyright ... is liable”

  6. Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc.

    508 U.S. 49 (1993)   Cited 1,137 times   42 Legal Analyses
    Holding litigants immune from an antitrust claim under Noerr-Pennington immunity

  7. United States v. Grinnell Corp.

    384 U.S. 563 (1966)   Cited 2,649 times   6 Legal Analyses
    Holding a series of three acquisitions "eliminated any possibility of an outbreak of competition" and thereby "perfected the monopoly power to exclude competitors and fix prices."

  8. Illinois Brick Co. v. Illinois

    431 U.S. 720 (1977)   Cited 1,290 times   61 Legal Analyses
    Holding that indirect purchasers cannot recover damages under federal antitrust law

  9. California Transport v. Trucking Unlimited

    404 U.S. 508 (1972)   Cited 1,582 times   7 Legal Analyses
    Holding "the right to petition extends to all departments of the Government," including the courts

  10. Fed. Trade Comm'n v. Actavis, Inc.

    570 U.S. 136 (2013)   Cited 309 times   92 Legal Analyses
    Holding that "reverse payment settlements . . . can sometimes violate the antitrust laws"

  11. Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

    Fed. R. Civ. P. 12   Cited 348,148 times   927 Legal Analyses
    Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss

  12. Rule 15 - Amended and Supplemental Pleadings

    Fed. R. Civ. P. 15   Cited 91,180 times   91 Legal Analyses
    Finding that, per N.Y. C.P.L.R. § 1024, New York law provides a more forgiving principle for relation back in the context of naming John Doe defendants described with particularity in the complaint

  13. Section 271 - Infringement of patent

    35 U.S.C. § 271   Cited 6,061 times   1055 Legal Analyses
    Holding that testing is a "use"

  14. Section 15 - Suits by persons injured

    15 U.S.C. § 15   Cited 5,688 times   35 Legal Analyses
    Granting private right of action to anyone who has been injured "by reason of anything forbidden in the antitrust laws ..."

  15. Section 2 - Monopolizing trade a felony; penalty

    15 U.S.C. § 2   Cited 4,395 times   30 Legal Analyses
    In § 2 cases under the Sherman Act, as in § 7 cases under the Clayton Act (Brown Shoe Co. v. United States, 370 U.S. 294, 325) there may be submarkets that are separate economic entities.

  16. Section 1 - Trusts, etc., in restraint of trade illegal; penalty

    15 U.S.C. § 1   Cited 2,927 times   69 Legal Analyses
    Forbidding every "contract, combination . . . or conspiracy, in restraint of trade or commerce among the several States"

  17. Section 355 - New drugs

    21 U.S.C. § 355   Cited 2,252 times   340 Legal Analyses
    Granting the court discretion to change the date on which an ANDA may be approved if "either party to the action failed to reasonably cooperate in expediting the action"

  18. Section 283 - Injunction

    35 U.S.C. § 283   Cited 805 times   19 Legal Analyses
    Providing for injunctive relief, treble damages, and—in “exceptional cases”—attorney’s fees as remedies for patent infringement

  19. Section 314.94 - Content and format of an ANDA

    21 C.F.R. § 314.94   Cited 224 times   37 Legal Analyses
    Explaining that products stemming from Drug Efficacy Study Implementation approvals are subject to today's ANDA regulations

  20. Section 314.53 - Submission of patent information

    21 C.F.R. § 314.53   Cited 91 times   53 Legal Analyses
    Referring to "those patents that claim the drug product," and those "patents that claim the drug substance"

  21. Section 314.127 - Refusal to approve an ANDA

    21 C.F.R. § 314.127   Cited 62 times   14 Legal Analyses
    Listing reasons the FDA will refuse approval of an ANDA, none of which concern patent litigation under § 271(e)