In a bid to have its antitrust lawsuit against Sanofi-Aventis U.S. LLC reinstated, Jay Fastow told the Third Circuit that Sanofi engaged in a campaign of “fear, uncertainty and doubt” to scare hospitals into believing that Eisai’s anticoagulant drug, Fragmin, was a higher cost option for hospitals than it really was.

Those actions, and “formulary access” clauses that Sanofi had in its contracts that did not allow hospitals to prioritize other drugs over theirs, enabled the company to increase the price of its drug, Lovenox, according to Mr. Fastow.

The lawsuit originally was filed in 2008, with Eisai claiming Sanofi’s purchase requirements—that hospitals must buy 90 percent of their anticoagulant drugs from them in order to obtain discounts of up to 30 percent on their total Lovenox purchases—violated state and antitrust law.

The lawsuit was dismissed in March by a New Jersey federal judge who found no violation of the Sherman Act because Lovenox was not sold to hospital groups below cost. The court also ruled that their contracts were not anti-competitive because hospitals could purchase other anticoagulant drugs and there was no penalty if they terminated their contract with Sanofi.

Fastow, however, told the appeals court that Sanofi’s inappropriate actions to create fear and uncertainty about its competitor’s drug was, in fact, anti-competitive behavior.

“A defensive back is perfectly free to get to the pass before the receiver,” he said in using a football metaphor. “A defensive back isn’t free to grab a wide receiver by the shoulder and pull him back."

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