Competition Tribunal turns away proposed private abuse of dominance case

In a recent decision, the Competition Tribunal dismissed JAMP Pharma Corporation’s application for leave to bring a claim under the abuse of dominance provisions (section 79) of the Competition Act (the Act) against Janssen Inc.¹. This is the first decision of its kind since recent amendments to the Act came into force which expanded private access to the Tribunal. The Tribunal’s decision confirms that it will continue to closely scrutinize parties’ evidence that the substantive elements of the test for granting leave have been met before doing so.

Private enforcement of the Act remains difficult. The Tribunal has rarely let private parties bring applications and none of those it has authorized have resulted in a substantive decision in favour of the applicant.

What you need to know

• JAMP failed to obtain leave because the Tribunal was not satisfied there was sufficient cogent evidence that would give rise to a bona fide belief that a remedial order could be made against Janssen on the basis of abuse of dominance.
• The Tribunal confirmed that, in cases alleging abuse of dominance, parties do not need to show that their entire business is directly and substantially affected by the impugned conduct in order to meet the leave test.
• However, the Tribunal will continue to screen cases by closely scrutinizing whether there is sufficient “credible, cogent, and objective evidence” giving rise to a bona fide belief that a remedial order could be made before granting leave.

Background

The Act requires that private parties obtain leave before applying for a remedial order. In determining whether to grant leave, the Tribunal must determine (a) whether the application is supported by evidence that the impugned conduct could be subject to an order; and (b) that the applicant may have been directly and substantially affected in its business by such conduct. With respect to the latter, one of the questions the Tribunal had to resolve was the degree to which a business had to be affected: all of the business, or just part of it?

JAMP’s claim

JAMP sought leave because it alleged that Janssen engaged in a number of anti-competitive acts in order to prevent competitors from introducing competing drugs (or “biosimilars”) to Janssen’s ustekinumab (Stelara) drug. JAMP alleged that Janssen had gamed the regulatory system and pursued sham litigation, launched a second “fighting brand” (Finlius) to confuse the market, engaged in predatory pricing, and misled patients, prescribers, and private insurers to delay the uptake of competitors’ drugs.

The Tribunal’s decision

The Tribunal found that JAMP failed to provide sufficient cogent evidence that would give rise to a bona fide belief that a remedial order could be made against Janssen under the abuse of dominance provisions (section 79) of the Act:

• JAMP failed to prove the merits of its claims of regulatory games and sham litigation and failed to show that these actions delayed entry of its Jamteki biosimilar.
• JAMP failed to show that Janssen used a fighting brand to discipline or eliminate a competitor as Janssen had only launched the product three weeks before JAMP filed its application for leave. The Tribunal also found no credible evidence that Janssen sold Finlius at predatory prices or that providing Stelara for free had a negative exclusionary effect on JAMP.
• The Tribunal found that JAMP's evidence that Janssen misled patients, prescribers and private insurers was thin and mostly based on alleged omissions and vague statements.

The Tribunal held that where applicants want to bring a case under section 79, they need not show that their entire business was directly and substantially affected by the impugned conduct for leave to be granted—just part of it. This is consistent with amendments to the Act codifying this for all private access applications that come into effect in June 2025. The Tribunal nonetheless found that JAMP’s evidence did not give rise to a bona fide belief that it was directly and substantially affected in its business by Janssen’s alleged conduct. JAMP cited, among others, the fact that it did not meet its demand forecast in the first quarter after the launch of its own product, Jamteki. However, for the reasons described above, the Tribunal found that Janssen’s conduct did not constitute an abuse of dominance as contemplated by section 79 of the Act, and so JAMP’s business could not have been directly and substantially affected by a practice that could be subject to an order under that section. Moreover, some of Janssen’s alleged conduct occurred after the alleged impact: for example, Finlius was only launched in the market in early July 2024, after Jamteki’s first quarter of sales results.

The Tribunal therefore dismissed JAMP’s application with costs².

Conclusion

Through recent amendments, Parliament has signalled a desire for more private enforcement of the Competition Act. The JAMP decision suggests that those changes may not result in a flood of litigation. The Tribunal will continue to apply rigorous legal scrutiny to leave applications. This is entirely consistent with the policy underlying the leave requirement: that the Tribunal should apply an initial screen to cases to ensure only meritorious applications proceed to a full hearing. Parliament may have wanted to see more private enforcement, but it also recognized that the regime ought to be calibrated to avoid frivolous or strategic litigation. The JAMP decision is likely the first of many that will be made as applicants advance cases to test the scope of the new rules, and it is a welcome one.