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Date
Citation Number
15-2236
Matter Number
P082105

Brief of the Federal Trade Commission urging the Third Circuit to reverse the district court’s summary judgment ruling, which held (1) that a brand-name drug manufacturer lacked monopoly power and (2) that product hopping almost never constitutes exclusionary conduct in any event. The district court’s analysis of the threshold monopoly-power question foundered on a basic misunderstanding of the special characteristics of the pharmaceutical marketplace. In addition, product hopping can be exclusionary if, without countervailing procompetitive justifications, a monopolist raises rivals’ costs by depriving them of their most efficient distribution mechanisms and thus harms consumers by impeding the rivals’ competitive ability to discipline monopoly prices.