We have covered Pfizer’s antitrust suit against Johnson & Johnson, the manufacturer of Remicade® (infliximab). Pfizer’s suit alleges that Johnson & Johnson excluded Pfizer’s infliximab biosimilar from the market through anticompetitive bundling and rebate penalties for insurers and providers, causing inflated prices. In related litigation, retailers Walgreen and Kroger Co., direct purchasers, and indirect purchasers of Remicade also allege anticompetitive restraints on trade by Johnson & Johnson and Janssen Biotech, Inc.

In the direct purchaser litigation, Johnson & Johnson moved to compel arbitration of all claims by lead plaintiff Rochester Drug Cooperative, Inc., arguing that an arbitration provision in a distribution agreement barred antitrust claims. The district court recently denied that motion, finding that the arbitration clause was limited to disputes arising from the distribution agreement, which pertained to distribution of Remicade itself. That distribution agreement further did not pertain to the availability of biosimilars and infliximab pricing as a result of anticompetitive conduct, which is the subject of the direct purchasers’ suit.