Markets Wired

The Federal Trade Commission has submitted an amicus brief concerning market definition in Staley v Gilead Sciences Inc., an antitrust case pending before the U.S. District Court for the Northern District of California (Case No. 3:19-cv-02573-EMC).

The plaintiffs allege that Gilead and three other manufacturers of branded HIV medications took various anticompetitive actions that resulted in higher prices for products known as combined antiretroviral therapy drugs. The plaintiffs’ complaint alleges that at least two antitrust product markets are relevant to assessing anticompetitive effects because the challenged conduct harmed competition in multiple ways. Defendant Gilead has asked the court to dismiss the complaint, based in part on an argument that the overlapping markets alleged are “contradictory” and therefore improper as a matter of law.

The FTC amicus brief takes no position on the underlying factual assertions or the ultimate disposition of Gilead’s motion to dismiss. The FTC’s brief explains that Gilead’s argument on market definition is inconsistent with core legal principles governing market definition in antitrust cases. It notes that market definition is merely a tool to help determine whether challenged conduct is likely to have anticompetitive effects. Thus, the brief explains, when multiple types of anticompetitive harm are alleged, multiple markets may be relevant. Market definition always requires sufficient factual support, the brief observes, but defining different product markets to assess different theories of harm is neither “contradictory” nor legally deficient.

The FTC vote approving the amicus brief filing was 5-0. It was filed before the U.S. District Court for the Northern District of California on Oct. 25, 2019. (FTC File No P163500; the staff contact is Markus Meier, Bureau of Competition, 202-326-3759.)

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