United States District Court, D. Delaware
DELCOR ASSET CORPORATION and MYLAN PHARMACEUTICALS PNC, Plaintiffs,
GLENMARK PHARMACEUTICALS LIMITED, GLENMARK PHARMACEUTICALS PNC, USA and STIFEL WEST COAST, LLC, Defendants.
before me is Plaintiffs' Partial Motion to Dismiss
Glenmark's Third Counterclaim pursuant to Federal Rule of
Civil Procedure 12(b)(6). (D.I. 28). The parties have briefed
the issues. (D.I. 29, 42, 44). Defendants' Third
Counterclaim alleges Monopolization and Attempted
Monopolization by Plaintiffs in the "market for
treatment with topical clindamycin foam" under Section 2
of the Sherman Antitrust Act, 15 U.S.C § 2. (D.I. 12,
Counterclaim at ¶¶ 51-64). For the reasons set
forth below, Plaintiffs' Motion is
reviewing a motion to dismiss pursuant to Rule 12(b)(6), the
Court must accept the complaint's factual allegations as
true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555-56 (2007). Rule 8(a) requires "a short and plain
statement of the claim showing that the pleader is entitled
to relief." Id. at 555. The factual allegations
do not have to be detailed, but they must provide more than
labels, conclusions, or a "formulaic recitation" of
the claim elements. Id. ("Factual allegations
must be enough to raise a right to relief above the
speculative level... on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)."). Moreover, there must be sufficient factual
matter to state a facially plausible claim to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
facial plausibility standard is satisfied when the
complaint's factual content "allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. ("Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief."
(internal quotation marks omitted)).
state an antitrust monopolization claim, a claimant must
plead "(1) the [accused's] possession of monopoly
power in the relevant market and (2) the [accused's]
willful acquisition or maintenance of that power"
through exclusionary conduct. Broadcom Corp. v. Qualcomm
Inc., 501 F.3d 297, 306-07 (3d Cir. 2007) (quoting
United States v. Grinnell Corp., 384 U.S. 563,
570-71 (1966)). To state a claim for attempted
monopolization, a claimant must plead that the accused
"(1) had the specific intent to monopolize the relevant
market, (2) engaged in anticompetitive or exclusionary
conduct, and (3) possessed sufficient market power to come
dangerously close to success." BarrLabs., Inc. v.
Abbott Labs., 978 F.2d 98, 112 (3d Cir. 1992).
"Monopoly power is the ability to control prices and
exclude competition in a given market."
Broadcom, 501 F.3d 307. However, monopoly power can
only be assessed after the claimant has defined the
"relevant market." See Queen City Pizza, Inc.
v. Domino's Pizza, Inc., 124 F.3d 430, 436 (3d Cir.
1997); Tunis Bros. Co. v. Ford Motor Co., 952 F.2d
715, 722 (3d Cir. 1991) ("The relevant product market is
defined as those 'commodities reasonably interchangeable
by consumers for the same purposes.'" (quoting
United States v. E.I. Du Pont de Nemours & Co.,
351 U.S. 377, 395(1956))).
the ultimate determination of the relevant market is factual,
at the pleading stage it is incumbent upon the claimant to
"define its proposed relevant market with reference to
the rule of reasonable interchangeability and
cross-elasticity of demand." Queen City Pizza,
124 F.3d at 436. Products are reasonably interchangeable if
"one product is roughly equivalent to another for the
use to which it is put." Id. at 437.
"[C]ross-elasticity of demand [means] the rise in the
price of a good within a relevant product market. . . tend[s]
to create a greater demand for other like goods in that
market." Tunis Bros., 952 F.2d at 722. Absent a
market definition that accounts for interchangeability and
cross-elasticity of demand, "the [alleged] relevant
market is legally insufficient and a motion to dismiss may be
granted." Queen City Pizza, 124 F.3d at 436.
have not met their burden of pleading a relevant market under
Section 2 of the Sherman Antitrust Act. Defendants'
Counterclaim states, "the relevant product market is the
market for treatment with topical clindamycin foam."
(D.I. 12, Counterclaim at ¶ 53). Defendants do not go on
to address reasonable interchangeability by, for example,
articulating why the relevant market covers clindamycin foam,
but excludes roughly similar products such as clindamycin
creams. They do not allege that there is no cross-elasticity
of demand by, for example, claiming that an increase in the
price of Plaintiffs' product would not drive consumers to
purchase alternative acne medications. In fact, Defendants do
not make any allegations at all in support of their claimed
relevant market. Thus, Defendants' "relevant
market" is a factually unsupported conclusion which
falls short of the pleading requirements of Rule 8(a). I will
grant Plaintiffs' Partial Motion to Dismiss
Glenmark's Third Counterclaim.
Partial Motion to Dismiss Glenmark's Third Counterclaim
(D.I. 28) is GRANTED.