Post-Petition Sales of Drug at Alleged Supracompetitive Price May Constitute Administrative Claims

Faegre Drinker co-chair Andrew Kassner and counsel Joseph Argentina coauthored an article for The Legal Intelligencer, titled “Post-Petition Sales of Drug at Alleged Supracompetitive Price May Constitute Administrative Claims.”

The article reports on a decision issued by U.S. Bankruptcy Judge John T. Dorsey of the U.S. Bankruptcy Court for the District of Delaware in In re Mallinckrodt, Case No. 20-12522 (JTD), where the court was asked to decide whether claims arising from pre-petition antitrust cases filed against the debtor could constitute post-petition claims entitled to administrative priority status.

In a decision dated Dec. 21, 2021, the authors explain that the court denied allowance of the administrative claims, and that the decision has now been appealed by the claimants. They highlight that the court’s analysis at the summary judgment stage is yet another example of the difficult complexities involved in determining when a claim “arises” in the context of a bankruptcy case. They also note that, given that antitrust litigation will continue to be a hot area in the coming years, practitioners should follow decisions on this topic closely.