On July 19, 2017 the U.S. District Court, Eastern District of Pennsylvania denied in part Ortho–Clinical Diagnostics, Inc. Motion for Summary Judgement. Ortho is the sole, remaining defendant in this antitrust price-fixing multidistrict litigation.

The Court concluded that Plaintiffs’ evidence raised a genuine dispute of material fact of price fixing and fraudulent concealment, allowing Plaintiffs claims of such price fixing in 2001 to proceed to trial. Trial is set for June 4, 2018

Sharon Robertson of Cohen Milstein, is one of three Trial Counsel for the Direct Purchaser Class.

Case Background

This multidistrict litigation consolidates thirty-three separate civil antitrust actions. Plaintiffs, purchasers of traditional blood reagents (TBRs), allege that Defendants, the two leading producers of blood reagents, Ortho–Clinical Diagnostics, Inc. and Immucor, Inc., conspired to raise prices on TBRs three times during the class period – in 2001, 2005, and 2008.

Specifically, Plaintiffs allege that the Defendants participated in an unlawful horizontal price-fixing agreement, beginning in November 2000, resulting in more than $650 million in market overcharges to plaintiffs and class members.

Blood reagents are used to identify properties of human blood. Most large purchasers of blood reagents are blood donor centers and hospitals, which use them to test whether the blood of a potential donor is compatible with the blood of a potential recipient.

Despite the blood reagent market being highly competitive in the 1980s and 1990s, for much of the period between 2000 and 2009, Ortho and Immucor were the sole producers of TBRs due, in part, to high barriers to entry, including the prolonged Food and Drug Administration licensing process, as well as declining prices, and aggressive merger and acquisition tactics by the Defendants.

Plaintiffs allege that Defendant began to engage in unlawful pricing-related communications in November 2000. Prices initially surged in 2001 by approximately 125% for Ortho customers, only to be met by Immucor’s competitive pricing structure for their customer loyalty program tiers, ranging from, for example, 58% to 95%. Despite customer protests, the Defendants pointed fingers at their sole competitor as justification for continually increasing their prices. Defendants further participated in cancelling contracts with purchasers that could not keep up with their new pricing structure, thereby freeing them of pricing yokes in certain markets.

Plaintiffs began to file civil lawsuits against Ortho and Immucor in 2009, shortly after the Antitrust Division of the U.S. Department of Justice opened a criminal grand jury investigation into blood reagents pricing. In August 2009 the Judicial Panel on Multidistrict Litigation transferred twenty-three of those cases to the Eastern District of Pennsylvania for coordinated pretrial proceedings. Another ten cases were originally filed in Eastern District of Pennsylvania. On December 23, 2009, the Court consolidated the thirty-three cases.

Plaintiffs filed their Motion for Class Certification on September 16, 2011. Immucor reached a settlement with Plaintiffs. On September 6, 2012, the Court granted plaintiffs’ Motion for Final Approval of the Settlement with Immucor, leaving Ortho as the sole defendant.

The case is styled: In re Blood Reagents Antitrust Litigation, MDL No. 2081, U.S. District Court, Eastern District of Pennsylvania