No Dismissal — For Shkreli And Mulleady — In FTC’s Civil Antitrust Action: Able Judge Cote’s Opinion

Not remotely surprising, but here is the published opinion — just filed — saying Martin may not escape here, without a trial.

You may read the entire thing — but here are the highlights:

“…The Amended Complaint alleges that Vyera, while holding a monopoly, prohibited any sales of Daraprim, directly or indirectly, to generic pharmaceutical competitors and even repurchased Daraprim at above-retail prices to stymie competitors’ access to Daraprim….

Shkreli is Phoenixus’s largest shareholder and the founder and former CEO of Vyera, and Mulleady is Phoenixus’s chairman of the board and the former CEO of Vyera. The Amended Complaint alleges that they not only participated in the anticompetitive conduct at issue, but also designed, implemented, and negotiated the network of contracts that block generic competition to Daraprim.

The Individual Defendants argue that the Amended Complaint must allege that they, as individuals, conspired with Vyera’s distributors or suppliers for purposes of the plaintiffs’ § 1 claim, or that they, as individuals, possessed monopoly power, for purposes of the plaintiffs’ § 2 claim. Not so. Performing the activities described in the Amended Complaint as corporate officers and agents is sufficient to subject them to liability for antitrust violations. Moreover, they benefitted personally from the illegality to the extent Vyera benefitted and their intent to benefit Vyera establishes as well their intent to benefit themselves through that wrongdoing….

The Amended Complaint alleges that Shkreli has participated in conduct that is illegal under each of the laws within the four-year period that preceded the filing of this action. For instance, it asserts that he worked as recently as August 2017 to cause Vyera to enter an exclusive supply contract with RL Fine, and in August 2019 he strategized with Mulleady about restricting Daraprim sales to one bottle at a time to impede competitors in their efforts to conduct bioequivalence testing.

And, of course, it alleges that Shkreli played a critical role….”

Now you know — and now we wait for the sorting out, on Martin’s BoP monitored emails and calls. See last entry here.

Grinning, after an improptu neighbors’ clarinet concert, in the sunshine… onward.