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From Antitrust Law Daily, September 20, 2013

Becton Dickinson found liable for attempted monopolization, false advertising; damages could top $340 million

By Tobias J. Gillett, J.D., LL.M.

A jury in the federal district court in Marshall, Texas has found Becton, Dickinson and Co. (BD) liable for attempting to monopolize the market for safety syringes through deception and for Lanham Act false advertising, awarding Rectractable Technologies more than $113 million in damages for the antitrust violation, an amount subject to trebling to a total of over $340 million (Retractable Technologies, Inc. v. Becton, Dickinson and Co., September 19, 2013). The court will determine the equitable relief, if any, on the false advertising claims.

The jury found BD not liable for monopolization of the markets for safety syringes, conventional syringes, or safety IV catheters; for attempted monopolization of the markets for conventional syringes or safety IV catheters; for contractual restraint of trade in any of the markets; or for exclusive dealing in any of the markets. The jury assessed no damages for BD’s alleged anticompetitive contracting, but found BD liable for $113,508,014 in damages for its attempted monopolization through deception regarding safety syringes.

Retractable Technologies statement. Following the jury’s decision, Retractable Technologies issued a press release announcing the verdict.

“After a six year battle, the verdict vindicates Retractable’s claim that industry giant Becton, Dickinson and Company illegally engaged in anticompetitive conduct with the intent to acquire or maintain monopoly power in the safety syringe market and engaged in false advertising under the Lanham Act,” the press release stated.

Becton Dickinson statement. BD also released a statement in the wake of the verdict. The statement noted the jury’s “mixed verdict” and criticized the jury’s conclusion with respect to the safety syringe attempted monopolization and Lanham Act false advertising claims.

“We’re disappointed with the portion of the verdict that favored RTI, and we believe this aspect of the verdict was erroneous,” said Jeffrey S. Sherman, Senior Vice President and General Counsel of BD. “We will file an appeal at the earliest opportunity.” The court has ordered all post-trial motions to be filed by October 11, 2013; responses to be filed by November 1, 2013; replies to be filed by November 11, 2013; and surreplies to be filed by November 21, 2013. The Court has scheduled a hearing on all post-verdict motions for December 12, 2013.

The case is Civil Action No. 2:08-cv-16.

Attorneys: Susan Elizabeth Adams and Mark Richard Backofen (Locke Lord Bissell & Liddell LLP) for Retractable Technologies, Inc. Robert A. Atkins and Rebecca Baneman (Paul Weiss Rifkind Wharton & Garrison) for Becton, Dickinson and Co.

Companies: Retractable Technologies, Inc.; Becton, Dickinson and Co.

MainStory: TopStory Antitrust TexasNews

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