November 21, 2023
The bulk of Baltimore’s proposed class action against Merck over its rotavirus vaccine bundling can go to class certification, a Pennsylvania federal judge has ruled, finding that Merck may very well have violated antitrust laws through its “loyalty” program for an essential pediatric vaccine, but also tossing two claims under Idaho and Utah antitrust law.
“This type of conduct, which exploits Merck’s dominant role in producing several indispensable vaccines, could certainly constitute a use of monopoly power that poses antitrust concerns,” U.S. District Judge Gerald Austin McHugh wrote Monday in denying Merck’s motion to dismiss.
Baltimore’s mayor and city council are alleging that Merck began illegally bundling its youth rotavirus vaccine RotaTeq after GlaxoSmithKline PLC released a competitor, offering potentially steep discounts on their other vaccines if health care providers purchase their rotavirus shots from Merck, as well.
Therefore, the plaintiffs say, providers see significant price increases on other Merck vaccines if they don’t purchase RotaTeq, one of just two U.S.-approved rotavirus vaccines.
The bundling, Baltimore officials say, has worked to protect Merck’s dominance in the U.S. rotavirus vaccine market, of which the company allegedly controlled 80% in 2022. And that, in turn, has allowed the company to keep its prices high and increasing, the plaintiffs say.
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Dan Silverman of Cohen Milstein Sellers & Toll PLLC, an attorney for the plaintiffs, said in a statement on Tuesday, “We are pleased about the Court’s thorough, well-reasoned, opinion almost entirely denying Merck’s motion to dismiss. High prices for pediatric vaccines are a serious concern, and we look forward to trying this case on behalf of the City of Baltimore and a proposed class of thousands of others whom we allege paid artificially inflated prices for Merck’s pediatric rotavirus vaccine as a result of Merck’s alleged predatory behavior.”
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Baltimore’s mayor and city council, as well as the proposed class, are represented by Daniel Silverman, Leonardo Chingcuanco and Sharon Robertson of Cohen Milstein Sellers & Toll PLLC, Daniel Walker, Eric Cramer, Russell Paul and David Langer of Berger Montague PC, as well as Ebony Thompson and Jane Lewis of the City of Baltimore.