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Pharma Distributors Trade Association Sued for Conspiracy to Exclude Competition for its Track and Trace Software

On October 23, 2017, a company that developed software to track and trace pharmaceuticals filed a complaint against a pharmaceutical distributors trade association that currently dominates the market for such software, alleging a conspiracy to lock up long-term contracts with customers and exclude competition in violation of the Sherman Act and the Virginia Antitrust Act.  Tracelink, Inc. v. Healthcare Distribution Alliance, Case No. 1:17-cv-01197-AJT-IDD (E.D. Va. Oct. 23, 2017).

The Complaint revolves around TraceLink’s provision of “track and trace” software called Life Sciences Cloud, which TraceLink asserts allows life sciences companies to more-easily comply with the Drug Supply Chain Security Act (“DSCA”) as well as worldwide regulatory compliance standards. TraceLink alleges that the Healthcare Distribution Alliance (“HDA”), a trade association, coerced or persuaded its members to use its own competitor product as part of an anticompetitive scheme to monopolize the market for track and trace technology.

Some of the salient factual allegations include:

  • HDA, in coordination with its controlling members, solicited an RFP for the creation of a data repository and exchange product known as “Origin”;

  • In solicitation of the RFP, HDA excluded TraceLink from the bidding process;

  • TraceLink had previously presented a confidential plan to develop a product similar to Origin at least twice to several members of the HDA prior to the RFP process. TraceLink’s product was eventually developed as Life Sciences Cloud;

  • The Origin product developed by HDA is based on a “closed proprietary platform that excludes market competition”;

  • HDA urged its wholesaler distributer members to mandate that their business partners use only the Origin product;

  • HDA includes a non-compete clause in its contracts to supply Origin, preventing customers from taking data inputted into Origin and moving it to other platforms, such as Life Sciences Cloud, thereby forcing customers to incur “substantial opportunity costs” in switching products;

  • HDA has raised costs for customers that would have otherwise been willing to use rival track and trace technology supplied by competitors;

  • HDA, with its controlling members and other trade association members, maintain a market share of greater than 80%.

The relevant product markets identified by TraceLink for their antitrust claims include (1) The DSCSA track-and-trace compliance solutions product market; and (2) The life sciences wholesale distribution product market – these markets are identified geographically as within the United States.

TraceLink seeks $30 million in damages.

Trade associations are generally viewed as procompetitive or competitively neutral when their activities are undertaken with adequate antitrust safeguards.  However, forming a trade association does not shield joint activities among competitors from antitrust scrutiny.  Dealings among competitors that violate the antitrust laws will still be illegal even if done through a trade association.  Taken as true, the allegations in TraceLink’s complaint suggest that HDA went beyond its stated and legitimate purpose, and instead created a product that is foreclosing competition in violation of the antitrust laws.

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About this Author

Bruce Sokler, Mintz Levin Law Firm, Washington DC, Health Care, Antitrust and Litigation Attorney
Member

Bruce is Chair of the Antitrust Section and in his over 30 years in private practice, he has developed extensive experience in both antitrust and communications regulation, including associated First Amendment and copyright law matters

In the antitrust area, Bruce’s practice includes antitrust counseling and representation in connection with federal and state governmental matters, as well as private antitrust litigation. He counsels and has represented Fortune 100 companies, not-for-profits, start-up entities, and domestic and international joint ventures. Bruce has been involved in...

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Robert G. Kidwell Member Mintz DC Antitrust Health Care Enforcement & Investigations Communications Complex Commercial Litigation
Member

Rob’s Washington, DC-based competition and trade regulation practice involves counseling on the regulatory implications of business strategies, regulatory matters, policymaking, and litigation. He defends clients in complex litigation and in merger and regulatory reviews by the US Department of Justice, the Federal Trade Commission, the Committee on Foreign Investment in the US, and the Federal Communications Commission. Rob’s clients include media and telecommunications companies, health systems and providers, national retailers, trade associations, and life sciences and technology companies.

Rob counsels a broad range of clients on business and investment strategy, M&A, litigation, and regulatory matters. He specializes in clearly explaining strategic risks and their relative values in order to help senior executives make informed decisions. Rob provides advice to clients from across the country and around the world, in high-profile matters including:

  • Strategic business planning and risk management 

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  • Federal and state regulatory investigations

  • Policy advocacy and notice-and-comment rulemaking 

  • Appellate review of agency action

  • Trade association counseling

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  • Unfair/deceptive conduct and false advertising

Rob represents clients in numerous markets, including:

  • Media content and distribution
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  • Health care providers and services
  • Life sciences
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  • Trade associations and non-profits

He has written and spoken widely on litigation risk management and cost containment, developments in the law, and on issues faced by businesses when they interact with federal and state enforcers and administrative agencies.

Rob is an active supporter of the firm’s pro bono program, providing representation to numerous indigent clients before the Social Security Administration and in local family and domestic relations courts. He has provided corporate and business planning advice to the National Network to End Domestic Violence and other non-profit clients. He is also an active supporter of the firm’s mentoring and sponsorship program.

Prior to his career in the law, Rob was an on-air radio personality and station production director in Lexington, KY.

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Farrah Short, Mintz Levin Law Firm, Washington DC, Health Care, Corporate Law Attorney
Special Counsel

Farrah advises on all aspects of antitrust and competition law, including merger review, competitor collaborations, government investigations, private class action litigation, and general antitrust compliance.

Farrah specializes in counseling clients through the Hart-Scott-Rodino (HSR) merger review process at the U.S. Federal Trade Commission and the U.S. Department of Justice, including responding to Second Requests and providing substantive antitrust risk analysis for strategic acquisitions. She has obtained antitrust clearance for major,...

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Shawn Skolky, Mintz Levin Law Firm, Washington DC, Corporate and Litigation Law Attorney
Associate

Shawn advises on many aspects of antitrust and competition law, including antitrust counseling, merger review, and private antitrust litigation, including class actions. His consumer product safety practice focuses on helping companies seeking representation on product safety reporting obligations, recalls, regulatory compliance, product safety investigations, and enforcement matters involving the Consumer Product Safety Act (CPSA) and other federal and state product safety laws.

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