Court Rules That Millennium Lab Lawsuit Against Competitor Can Continue

In what is considered by some a win for Millennium Laboratories (ML, San Diego), a middle district court in Florida denied motions for summary judgment by both the plaintiff and the defendant and allowed a case against a competitor to continue. The case has been going on since Oct. 21, 2011, when ML filed the suit accusing Universal Oral Fluid Laboratories (Greensburg, Pa.) of engaging in unfair trade practices and anti-competitive marketing practices and a variety of other competitive related violations of laws in several states, including Florida, Texas, and Kentucky. At the core of this case are certain agreements Universal entered into with physician customers under which the physicians submit specimens to Universal for testing. Universal then bills third-party payers, including Medicare and Medicaid, and splits profits it makes on the tests with the physician consumers, which on the face appear to implicate the anti-kickback and physician self-referral (Stark) laws. These laws do not provide for a private cause of action, except perhaps under the qui tam provisions of the False Claims Act, so the ML suit takes the approach that these arrangements may be illegal and create fair trade and anti-competitive advantages for Universal in the marketplace. As a result of this decision by the Florida court, the lawsuit will continue and eventually go back to court. Takeaway: Millennium Laboratories will be allowed to pursue its unfair trade lawsuit against Universal Oral Fluid Laboratories.