2003AP2840 Meyers et al. v. Bayer AG, et al.

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In Olstad v. Microsoft Corp., 2005 WI 121, the Court concluded that “Wisconsin’s antitrust statutes may reach interstate commerce if…the conduct complained of ‘substantially affects’ the people of Wisconsin and has impacts in this state.

“As noted in Allied Chemical [9 Wis. 2d 290], the people of Wisconsin are substantially affected if the price of a product is ‘fixed’ as a result of illegal practices. This is exactly what the appellants in the instant case have alleged in their complaint. The complaint sets forth in great detail the conduct between Bayer and Barr Laboratories as it relates to Barr Laboratories’ challenge to Bayer’s patent and application to market the generic version of Cipro. The complaint sets forth the terms of the settlement agreement between the two companies, wherein Bayer would make large settlement payments to Barr Laboratories to resolve Barr Laboratories’ attempt to litigate Bayer’s exclusive right to sell Cipro. The complaint alleges that as a result of this illegal conduct, Wisconsin residents who purchased Cipro were forced to pay increased prices and this caused an economic loss to the class members.

“Accepting all of the allegations in the complaint as true, we conclude that the complaint should not have been dismissed by the trial court.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Guolee, J., Wedemeyer, J.

Attorneys:

For Appellant: Cabaniss, John C., Milwaukee; Flannery, Michael J., Clayton, MO; Saveri, Joseph R., San Francisco, CA

For Respondent: Krill, Richard J., Milwaukee; Gonzalez, Jerry H., Milwaukee; Proger, Philip A., Washington, DC; Bartlit, Fred H., Jr., Chicago, IL.