“Calif. High Court Should Hear Antitrust Query, AG Says”

Law360 [subscription] reports on California Attorney General Xavier Becerra’s request that the Third Circuit Court of Appeals seek guidance from the California Supreme Court under rule 8.548 on a matter of state antitrust law.  [H/T Ben Shatz.]  According to the article, Becerra says the Supreme Court should “weigh in on whether the state’s antitrust law is broader than its federal counterpart, arguing the appeals court had underestimated the law’s scope in approving a $233 million GlaxoSmithKline pay-for-delay settlement.”  Becerra is apparently relying on the Supreme Court’s 2015 decision in In re Cipro Cases I & II.

The Third Circuit case is In re Wellbutrin XL Antitrust Litigation.  The opinion is here.

If the Third Circuit does ask for the Supreme Court’s help, the Supreme Court will probably oblige.  To ask, the federal appeals court would likely need to withdraw its opinion or have an en banc court make the request.  There is Ninth Circuit precedent for both.  (See here and here.)