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District court's judgment of liability for unfair and deceptive business practices in violation of Massachusetts General Laws Chapter 93A against the pharmaceutical-defendant is affirmed as evidence supported a finding that defendant unfairly and deceptively published an artificial average wholesale price for a prostate cancer drug that gave no indication of the actual, substantial discounts and rebates it was providing in the market. Accordingly, the district court made the rulings without committing material legal error, abusing its discretionary power, or making clear errors in its fact finding.
Appeal from the United States District Court for the District of Massachusetts
Decided September 23, 2009
Before: Howard, Circuit Judgee, and Zobel and Lisi, District Judges.
Opinion by Howard, Circuit Judge
For Appellant: Mark E. Haddad, Nitin Reddy, Carter G. Phillips, Sidley Austin LLP; D. Scott Wise, Michael S. Flynn, Kimberley D. Harris, Davis Polk & Wardwell; Donald R. Ware, Sarah Cooleybeck and Foley Hoag LLP, were on brief for appellant.
Steve W. Berman, Sean R. Matt, Hagens Berman Sobol Shapiro LLP; Jeffrey Kodroff, John A. Macoretta, Spector, Roseman & Kodroff, P.C.; Marc H. Edelson, Hoffman & Edelson; Thomas M. Sobol, Edward Notargiacomo, Hagens Berman Sobol Shapiro LLP; Kenneth A. Wexler, Jennifer Fountain Connolly of Wexler Toriseva Wallace LLP; were on brief for appellants.
For Appellee: Gregory G. Katsas, Assistant Attorney General, Michael J. Sullivan, United States Attorney, Michael S. Raab and Eric Fleisig-Greene, Attorneys, Appellate Staff, Civil Division, United States Department of Justice,