Can False Advertising Give Rise to Antitrust Liability? (2)

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Christopher Cole, Dec 31, 2014

In late 2013, a jury in the Eastern District of Texas, Marshall Division, which had been considering whether Becton-Dickinson should be held liable for attempted monopolization of the market for retractable safety syringes, concluded that Becton had engaged in exclusionary conduct against Retractable Technologies by means of deceptive advertising and awarded the plaintiff over $113 million in “Deception Damages.” It was a remarkable milestone in a long-running battle between the two competitors, which had been litigating patent infringement and antitrust allegations for several years as they battled for contracts in a rapidly consolidating medical provider market.

The case raises important questions regarding the relationship between false advertising and antitrust law, some of which will be litigated in post-trial motions and inevitable appeals. Most importantly, when can false advertising give rise to violations of the Sherman Act? Is the theory, while rarely invoked, gaining traction? Will Rectractable Technologies be a harbinger of more such litigation?