Brief of Amicus Curiae American Antitrust Institute in support of Appellants and Reversal of the District Court\u27s Decision, Federal Trade Commission and State of Minnesota v. Lundbeck, Inc. Nos. 10-3548 and 10-3549, United States Court of Appeals for the Eighth District (2011)

The basis for the District Court’s ruling was its view that cross-price elasticity of demand was “very low” between the two drugs acquired by Lundbeck, and therefore that they could not be in the same relevant market.2 AAI urges reversal on three grounds. First, assuming arguendo that crossprice elasticity was low – even if it were zero – the court’s approach fundamentally misapprehended the law. A lack of price competition between two functionally interchangeable products does not preclude a determination that they are in the same relevant market. Second, regardless of “low” cross-price elasticity, the acquisition removed an actual or potential constraint on a monopolist’s ability to exercise monopoly power and was therefore anticompetitive and illegal under Section 7 of the Clayton Act and Section 2 of the Sherman Act. And third, the court’s finding of “low” crossprice elasticity should be rejected because it cannot be reconciled with the rest of its findings and is otherwise riddled with errors