J&J, Pfizer biosimilar payer policy case could survive motion to dismiss but proving anticompetitiveness remains challenging, experts say

23 Mar 2018

Pfizer’s (NYSE:PFE) biosimilar antitrust claim against Johnson & Johnson (NYSE:JNJ) could be strong enough to reach the discovery stage of litigation but will survive only if the latter company's exclusionary tactics for Remicade (infliximab), beyond just lowered prices and bundling deals, are proven, said experts.

Pfizer filed a lawsuit against Johnson & Johnson (J&J) alleging the latter is using exclusionary contracts and anticompetitive practices, as per a 20 September 2017 press release. The case also received more attention when FDA commissioner Scott Gottlieb spoke out in a speech on 7 March at the America’s Health Insurance Plans’ National Health Policy Conference, calling out “rebate traps” and their impact on disincentivizing biosimilar use.

Analysts highlight this discussion as a hot topic in coming months and are expecting the case to be decided in 2H18.

While Pfizer has a decent chance of surviving a motion by J&J to dismiss the case, experts this news service interviewed said the outcome would depend on Pfizer’s lawyers establishing J&J’s usage of exclusionary tactics beyond just rebates and bundling deals -- commonly seen as competitive practices and often employed by pharma players like Pfizer. A win for Pfizer would be subject to the presence of payer contracts with hospitals that specifically forbade biosimilar use and exclusive contracts in more than 40% of the market, experts noted.

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