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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 266,697 times   365 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 2,671 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 28,629 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 10,433 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 786 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 1,132 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 2,642 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 1,287 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 1,580 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 306 times   91 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 345,981 times   922 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 90,557 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 6,040 times   1050 Legal Analyses
    Holding that testing is a "use"

  14. Section 15 - Suits by persons injured

    15 U.S.C. § 15   Cited 5,673 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 4,384 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 2,907 times   66 Legal Analyses
    Making illegal "[e]very contract, combination ..., or conspiracy, in restraint of trade"

  17. Section 355 - New drugs

    21 U.S.C. § 355   Cited 2,245 times   337 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 800 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 89 times   51 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)