Background
Tevra Brands, LLC, a producer of generic flea and tick products, sued Bayer Healthcare LLC alleging violations of the Clayton Act and the Sherman Act. Tevra alleged an antitrust market for topical flea and tick products containing imidacloprid. The district court initially dismissed Tevra’s First Amended Complaint for failing to sufficiently plead a relevant market but allowed an amendment. Tevra filed a Second Amended Complaint with a broader market definition. The case proceeded to trial, where a jury found that Tevra failed to prove its alleged antitrust market.
The court’s reasoning
The Ninth Circuit reviewed the appeal de novo regarding the motion to dismiss but found that Tevra waived the issue of the initial dismissal because it voluntarily abandoned the specific market definition pleaded in the First Amended Complaint by filing a broader definition in the Second Amended Complaint without attempting to preserve the earlier claims. Regarding the Daubert motion, the court held that the district court did not abuse its discretion in admitting the defendant’s expert testimony using the Hypothetical Monopolist Test, as the methodology was supported by reliable evidence. Finally, the court affirmed the denial of the motion in limine regarding a willingness to pay survey, noting that challenges to the survey’s weight rather than its admissibility were properly left to the jury.
What it means going forward
The decision reinforces that parties must carefully preserve claims when amending complaints and confirms the deferential standard applied to district courts when ruling on the admissibility of expert testimony and survey evidence in complex antitrust litigation.