In re ACTOS Antitrust Litigation

Background

The court had before it cross-motions for summary judgment on Takeda’s “regulatory compliance” or “regulatory mandate” defense. The opinion does not identify the opposing party by name.

At oral argument, both parties suggested that the defense’s objective-reasonableness requirement is ultimately a question of law, while acknowledging that subsidiary factual questions may exist. Both parties nevertheless asked the court to decide objective reasonableness in their favor at the summary-judgment stage, apparently on the ground that no genuine dispute existed about any fact material to the defense.

Issue Identified by the Court

The court raised questions about who should resolve factual disputes underlying objective reasonableness and what procedure should be used. It specifically considered whether a jury could decide subsidiary factual issues, including industry custom or practice, if the court allowed a jury to decide the defense’s subjective component. The court noted that some courts submit such factual questions to juries, while other legal contexts require the court itself to resolve factual disputes that are part of a broader legal question.

Order

The court ordered each party to file a letter no later than March 12, 2025, addressing: (1) whether a jury may ever decide a disputed factual question subsidiary to the objective prong, including industry custom or practice; (2) which factual issues related to that prong, if any, could go to a jury in this case; and (3) if the jury has no role, whether the court should resolve those disputes on the papers, at an evidentiary hearing, or as a matter of law at trial.

The order did not grant or deny either cross-motion for summary judgment and did not decide the merits of Takeda’s regulatory-compliance defense.