Badger Staters can sue drugmaker for out-state actions, SC rules

By Legal News Line | Jul 16, 2007

Justice Louis B. Butler

MADISON -- Wisconsin's anti-trust law can apply to interstate commerce, the state's Supreme Court ruled Friday, setting stage for another lawsuit against a Big Pharma giant. In Barbara A. Meyers et al v. Bayer AG et al (docket# 2003AP2840) the Supreme Court affirmed 6-3 a Court of Appeals ruling that overturned an earlier ruling. Circuit Court Judge Michael D. Guolee had concluded that the Antitrust Act applied only in-state. Plaintiffs allege that Munich, Germany-based chemical multinational Bayer AG conspired with three manufacturers to force Wisconsin consumers to pay inflated prices for the drug known as Cipro. Referring to a two-year-old precedent set in Olstad v. Microsoft, the Supreme Court Friday affirmed that plaintiffs' anti-trust suit against the German chemical giant could continue. The case defined when the state's Anti-trust Act applied to across-the-border business. It applies where "the conduct complained of 'substantially affects' the people of Wisconsin and has impacts in this state, even if the illegal activity ... occurred predominantly or exclusively outside this state," wrote Justice Louis B. Butler for the majority. But dissenting Justice Patience Drake Roggensack points out that the majority opinion does not address the issue of how Bayer's patents affect the plaintiffs' current claims. Her opinion was joined by Justices David T. Prosser and Jon P. Wilcox. "Presuming that Bayer's patent is valid, I conclude that the complaint does not allege facts that, if true, are sufficient to show illegal conduct or conduct that has an illegal effect," Roggensack wrote. The issue has been remanded to the circuit court for further action consistent with the ruling.

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