Bona Law Wins Dismissal of False Advertising Counterclaims in New York Antitrust Case
September 22, 2022
The Southern District of New York entered an order granting a Bona Law client’s motion to dismiss counterclaims by one of the defendants it sued for violating the antitrust laws in PharmacyChecker.com v. NABP et al. September 21, 2022. The antitrust case brought by Bona Law on PharmacyChecker.com’s behalf continues to move forward even as the court dismissed Lanham Act and related state-law counterclaims brought by defendant National Association of Boards of Pharmacy.
In its order, U.S. District Judge Kenneth M. Karas found that the NABP’s Lanham Act counterclaim failed to allege a commercial injury to NABP. He also found that NABP’s New York false advertising claim failed to allege an actual, direct injury, and its Washington D.C. consumer protection claim fails because NABP did not allege a nexus between the alleged conduct and D.C., NABP lacks standing because it is not a consumer, and NABP failed to allege a consumer-merchant relationship.
NABP brought its counterclaims when answering the complaint after its bid to dismiss PharmacyChecker.com’s antitrust claim failed in March 2021.
Bona Law brought its antitrust case against NABP and several other defendants—the Center for Safe Internet Pharmacies, the Alliance for Safe Online Pharmacies, the Partnership for Safe Medicines, and LegitScript—in August 2019. The complaint alleges that the defendants conspired to restrain trade in the markets for online pharmacy verification and comparative drug pricing information by working with Internet gatekeepers to censor information about safe online international pharmacies and blacklist websites such as PharmacyChecker.com that linked to such information.
One defendant—LegitScript—successfully argued that the court lacked personal jurisdiction over LegitScript. The court agreed, then severed and transferred PharmacyChecker.com’s claim against LegitScript to the District of Oregon, where the case is proceeding after U.S. District Judge Michael Simon rejected LegitScript’s motion to dismiss. In that order, Judge Simon described “important similarities” between PharmacyChecker.com’s case and cases such as SmileDirectClub v. Tippins, which was recently heard by the Ninth Circuit. PharmacyChecker.com is represented by Aaron Gott and James Lerner.