## Facts

- Eisai marketed Fragmin, a low–molecular-weight heparin (LMWH) anticoagulant sold to U.S. hospitals; Sanofi marketed the dominant LMWH, Lovenox.
- Sanofi offered hospitals a “Lovenox Contract Purchase Program” with discounts conditioned on Lovenox market share and purchase volume.
- Hospitals could obtain a small discount when Lovenox accounted for less than 75% of their LMWH purchases, and larger discounts when Lovenox exceeded 75%, with the discount increasing with share and volume.
- The contracts included formulary provisions barring hospitals from giving competing LMWHs preferential formulary status over Lovenox, while still permitting hospitals to carry and use multiple anticoagulants.
- Eisai alleged Sanofi also used aggressive promotional efforts that cast doubt on Fragmin’s safety and efficacy.
- Eisai claimed the discount structure effectively tied hospitals’ “incontestable” Lovenox demand to “contestable” demand, raising rivals’ costs and foreclosing competition.
- Eisai sued under Sherman Act §§ 1–2 and the Clayton Act; the district court applied the rule of reason and granted summary judgment to Sanofi.
- Eisai appealed the summary judgment ruling.

## Issues

1. Whether Sanofi’s market-share/volume discounts and formulary provisions constituted unlawful exclusive dealing or de facto exclusivity under Sherman Act §§ 1–2 and the Clayton Act.
2. Whether Sanofi’s conditional discounts were unlawfully exclusionary loyalty or bundled discounts rather than permissible price competition.
3. Whether Eisai produced sufficient evidence of substantial foreclosure and harm to competition (not merely to a rival) to survive summary judgment under the rule of reason.

## Decision

- The Third Circuit affirmed summary judgment for Sanofi.
- The court held Eisai failed to show Sanofi’s discounting and contracting practices caused substantial foreclosure or market-wide anticompetitive effects.
- The court treated the challenged conduct as discounting, contracting terms, and product marketing that remained lawful absent proof of competitive harm such as higher prices, reduced output, or significant exclusion of rivals.
- The formulary provisions were not deemed exclusionary where hospitals retained the ability to add and use competing LMWHs and were not required to purchase exclusively from Sanofi.

## Legal Principles

- Antitrust law protects competition, not individual competitors; injury to a rival is insufficient without proof of harm to the competitive process.
- Loyalty-style and market-share discount programs are assessed under the rule of reason; plaintiffs generally must prove anticompetitive effects, commonly shown through substantial foreclosure.
- Discount programs are less likely to be unlawful when customers remain free to buy rivals’ products and the record lacks evidence of consumer harm (e.g., price increases, output reductions).
- Contract terms limiting preferential placement for rivals are not necessarily exclusive dealing when customers can still carry and use competing products and the arrangement does not meaningfully foreclose market access.
- Aggressive product promotion, without proof of durable distortion of competition, does not convert otherwise lawful discounting into an antitrust violation.

## Conclusion

The Third Circuit held that Sanofi’s Lovenox discount and formulary program did not violate federal antitrust law because Eisai failed to show substantial foreclosure or broader harm to competition under the rule of reason, even if the program made competition harder for Fragmin.


Eisai, Inc. v. Sanofi Aventis U.S., LLC, 821 F.3d 394 (3d Cir. 2016)