On Aug. 1, following five years of litigation, Tevra Brands LLC's antitrust suit against Bayer Healthcare LLC came to an end in the U.S. District Court for the Northern District of California. Tevra, a manufacturer of generic version topical flea and tick medications, alleged that Bayer engaged in anticompetitive conduct to secure exclusivity for its own name brand Advantage and Advantix products in the market for topical flea and tick medications, in violation of Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act. As an element of these exclusive dealing and monopoly maintenance claims, Tevra needed to define the relevant market the parties' products competed in, and establish at trial that such a market actually existed.

This article explores the key role that Tevra's evolving market definition played in the development and outcome of the Tevra v. Bayer case, highlighting the challenges litigants can eventually face when the fact-finding necessary to assess a proposed market definition finally takes place at trial. At each stage of the litigation, Tevra's decision to exclude other flea and tick medications with similar functions but different active ingredients from its definition faced skepticism from the court even as it denied Bayer's dispositive motions. The issue ultimately proved dispositive when a jury in the District of Northern California found that Tevra failed to prove its relevant market by a preponderance of the evidence, and judgment was entered in Bayer's favor.

To continue reading Amy Vegari and Colleen Anderson's article in Law360, please click here.