Update September 2010: The Ninth Circuit has denied Abbott’s petition for writ of mandamus seeking the dismissal of the antitrust claims against it.
In Rite Aid Corp. et al. v. Abbott Laboratories; and Safeway Inc. et al. v. Abbott Laboratories, Northern California District Judge Claudia Wilken denied Abbott’s omnibus motion to dismiss plaintiffs’ claims based on John Doe 1 v. Abbott Laboratories, arguing that the drugmaker’s actions did not amount to exclusionary conduct. In John Doe 1, just like in the present cases, plaintiffs claimed that Abbott drastically raised the price of its HIV drug Novir while keeping the price of the drug Kaletra at the same level. The court held that the present cases involve different theories than the John Doe 1 case, therefore the John Doe 1 case does not control the outcome in the present cases. In its holding the court stated that “given Doe’s narrow focus on viability of a monopoly leveraging claim absent allegations of a refusal to deal, Doe does not foreclose direct purchasers’ and [SmithKline’s] antitrust theories.”