The High Court has dismissed the ACCC’s application for special leave to appeal the Full Federal Court decision in a case against Pfizer Australia Pty Ltd (Pfizer).
The ACCC sought leave to appeal against the judgment handed down by the Full Federal Court on 25 May 2018. The Full Federal Court had found that Pfizer took advantage of its substantial market power, but didn’t accept the ACCC’s argument that Pfizer had acted for the purpose of substantially lessening competition or deterring or preventing competitors from competing.
“This decision ends this case, but does not end the ACCC’s determination to pursue companies which engage in anti-competitive conduct,” ACCC Chair Rod Sims said.
In early 2012, Pfizer offered significant discounts and the release of rebates accrued on previous sales of Lipitor to pharmacies. Pfizer’s offer was conditional upon pharmacies acquiring a minimum volume of Pfizer’s generic atorvastatin and agreeing to restrict their re-supply of competing generic atorvastatin products.
Atorvastatins, marketed under the brand name Lipitor, are drugs used by millions of Australians to keep their cholesterol levels down.
The ACCC instituted proceedings against Pfizer in February 2014.
The ACCC alleged that Pfizer misused its market power resulting from its position as the patent holder of atorvastatin to prevent or deter competition from other suppliers selling generic atorvastatin products to pharmacies. The ACCC also alleged Pfizer’s conduct was exclusive dealing conduct with the purpose of substantially lessening competition in the market for atorvastatin.
The trial took place in October 2014 and judgment at first instance was given on 25 February 2015. The appeal was heard by the Full Federal Court in November 2015.
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