Second Circuit dismisses antitrust claims against Roche

The US Court of Appeals for the Second Circuit has dismissed a Russian pharmaceutical company’s antitrust claims against Roche.

On November 5, Second Circuit upheld a district court ruling that Biocad’s claims must be dismissed for lack of subject matter jurisdiction and failure to state a claim.

In its original complaint at the US District Court for the Southern District of New York, Biocad alleged Roche had engaged in anticompetitive conduct in Russia, including price-fixing, in an attempt to delay Biocad’s ability to enter the market in the US.

But, the district court said the foreign nature of its claims placed them beyond the reach of US antitrust laws

In recent years, monoclonal antibodies (mAbs) have been used successfully in cancer treatment in the US. Roche is the sole US seller of three key mAbs: bevacizumab, trastuzumab, and rituximab.

It also sells these in Russia through an independent pharmaceutical company, R-Farm JSC.

Biocad has created biosimilar drugs to compete with existing, brand name mAbs sold by Roche.

“As of 2016, Biocad was the only pharmaceutical company to successfully produce biosimilars of the Roche’s mAbs and it intended and [was] prepared to enter the US market for mAbs once Rocheʹs exclusivity rights expired,” Biocad wrote in its original complaint.

“Faced with impending competition from Biocad, Roche hatched a scheme to restrict the US market and delay or preclude altogether Biocadʹs imports into the US, so that Roche could maintain its control over its mAbs,” it added.

It said Roche allegedly did this by increasing its prices by 19% in the US while decreasing costs in Russia by 76%.

In its judgment, the Second Circuit said it would not review Biocad’s antitrust claims because it agrees with the district court that the foreign nature of Biocadʹs alleged injuries places its claims beyond the reach of US antitrust laws.

“The alleged anticompetitive conduct does not directly involve the importing of drugs into the US. Rather, the bulk of the alleged conduct occurred in Russia,” it said.

“For instance, Biocad accuses Roche, a Swiss company, of underwriting R‐Farm, an independent Russian distributor, and engaging in illegal rigging schemes in Russia. None of this conduct has a nexus to imports into the US,” it added.

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