Washington (July 21, 2017, 2:40 PM EDT) -- Bayer AG urged a Virginia federal judge in oral arguments Friday to nix antitrust counterclaims from Belmora LLC accusing the German drugmaker of undermining the competition, arguing that those allegations, amid a trademark dispute over the “Flanax” painkiller, ignore other options on the market.
Belmora has already failed to persuade the U.S. Supreme Court to take on a Fourth Circuit decision holding Bayer able to bring a trademark suit over the German giant’s naproxen sodium drug marketed in Mexico as Flanax and in the United States as Aleve, where it competes with Belmora’s own naproxen sodium drug called Flanax.
Friday’s dispute centers on Belmora’s antitrust counterclaims accusing Bayer of pressuring distributors not to do business with the small American company and of facilitating or even encouraging third parties to illegally ship Bayer’s Mexican Flanax into the U.S., where its chemical concentration is too strong for U.S. Food and Drug Administration standards. Part of the problem with those allegations, Bayer attorney Joelle P. Justus said Friday, is that Belmora hasn’t successfully defined the market at issue.
. . .
Belmora attorney Ronald D. Coleman countered Friday that Bayer’s arguments are based around contentions that “everyone knows” Mexican Flanax is available in U.S. stores.
“That’s not grounds for a motion to dismiss,” the Archer & Greiner PC attorney said.
Coleman further argued that Bayer is trying to hold Belmora to standards that only apply at the summary judgment stage, not dismissal. All Belmora’s counterclaims need to survive dismissal, Coleman said, is to be plausible, and he blasted arguments that distributor interference didn’t make for antitrust violations.
“It’s axiomatic that keeping a competitor out of the market has anti-competitive effects,” Coleman said.
Additionally, Coleman contended that Belmora doesn’t need to show that Bayer played an active role in facilitating third-party sales of Mexican Flanax in the country.
“Willful blindness is all that is required,” he said.
Bayer's motion was denied on July 27, 2017.