New opinion — Third Circuit tackles antitrust-jurisdiction issues in pharma reverse-payments appeals

In re: Lipitor Antitrust Litig. — civil / jurisdiction — partial affirmance — Fisher

In two sprawling MDL antitrust class actions involving drug-company reverse payments consolidated into one appeal, the Third Circuit yesterday addressed two antitrust-jurisdiction issues. First, it held that it (not the Federal Circuit) had jurisdiction over suits involving fraudulent procurement and enforcement of patents, where “patent law neither creates plaintiffs’ cause of action nor is a necessary element to any of plaintiffs’ well-pleaded claims.” Second, it held that the district court erred in denying a post-removal motion to remand to state court on the ground that the defendants had potential federal patent-law defenses, because “federal jurisdiction depends on the content of the plaintiff’s complaint, not a defendant’s possible defenses.” The court remanded appeal involving this second issue for jurisdictional discovery.

Joining Fisher were Ambro and Smith. Amongst a list of counsel that ran 10 pages long in the opinion, arguing counsel for the appellants were: Barry Refsin of Hangley Aronchick, Scott Perwin of Florida, David Sorensen of Berger & Montague, James Cecchi of Carrella Byrne, and James Alioto of California. Arguing for the appellees (the pharmaceutical-company antitrust defendants) were Robert Milne of White & Case, Jay Lefkowitz of Kirkland, and Noah Leibowitz of Simpson Thacher.

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