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Australia: ACCC takes Pfizer competition case to High Court

 |  June 25, 2018

The Australian Competition and Consumer Commission (ACCC) is seeking special leave from the High Court to appeal a ruling in a case alleging drug giant Pfizer misused its market power ahead of the expiration of its patent for Lipitor.

The ACCC wants to challenge the Full Federal Court’s decision on May 25 that let stand a judgement in favor of Pfizer.

“The ACCC is seeking clarity from the High Court on how to assess anti-competitive purpose, an important issue raised by this case,” ACCC Commissioner Sarah Court said in a statement Monday, June 25.

“This case raises important issues about when a company with substantial market power can be found to have acted with a proscribed anti-competitive purpose.”

The Full Court agreed with the ACCC in finding that Pfizer had a substantial degree of market power in the sale of atorvastatin, the drug marketed as Lipitor, and that it took advantage of that power in early 2012 by bundling discounts with a minimum purchase of the drug.

But, in siding with Justice Geoffrey Flick, the Full Court ruled that the ACCC had not made out its case on appeal that Pfizer’s purpose was to substantially lessen competition.

“The primary judge was correct when he concluded that, at no time in the relevant period, did Pfizer have a proscribed purpose, either for the purposes of section 46(1)(c) of the Competition and Consumer Act (CCA) or for the purposes of section 47(1) and section 47(10)(a) of the CCA, when it engaged in the impugned conduct relied upon by the ACCC in respect of each alleged contravention,” the court wrote.

The Full Court also ruled that Judge Flick had not erred in rejecting in its entirety the ACCC’s case under section 47, which prohibits exclusive dealing.

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