The appellate court agreed with a lower court summary judgment concluding that the plaintiffs failed to demonstrate that the pharmaceutical companies had conspired to raise their prices in the US compared to what they charge in Canada.

Lack of evidence

The defence was led by lawyers from New York-headquartered firm Kaye Scholer, who represent Novartis Pharmaceutical Corporation, reports The Am Law Litigation Daily web site.
The unanimous, 68-page decision from the three-judge panel concluded that there was insufficient evidence of a conspiracy. Associate Justice James Richman, writing for the panel, also cited the sworn testimony of executives as well as detailed descriptions of each company’s independent price setting structure.
The case – which was first filed in 2004 and has already appeared before the California Supreme Court in 2010 – took a turn when the plaintiffs, represented by renowned San Francisco anti-trust claimant practice Alioto Law Firm, alleged that the companies conspired to keep their prices higher than the consumer price index, rather than the Canadian price floor.

Tactical switch

Commenting on the switch in tactics, Kaye Scholer partner Aton Arbisser, said: ‘There is no clearer signal that you don’t have a strong case than when you change your theory like that.’
Joseph Alioto -- lead lawyer for the pharmacies and a member of the famous family of a former San Francisco mayor -- said an appeal to the state Supreme Court was likely: ‘To throw out a case on summary judgment based solely on what the defendants say is not what we were taught at law school and in history class.’