Publications | IBCI

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Publications

Predatory Litigation in the Health Sector: Competition Challenges of Judicial Activism in Brazil

Predatory litigation has become increasingly prevalent in Brazil’s health and pharmaceutical markets, serving as a mechanism to delay the entry of generics, extend patent monopolies, and inflate healthcare costs. In 2024, Brazilian courts recorded 154,857 new lawsuits related to hospital treatments, with São Paulo accounting for 37% of these cases. Additionally, legal expenses for private insurers emerged by 37.6% in 2023, reaching BRL 5.5 billion, highlighting significant competitive and public health concerns. This study seeks to address the question: “To what extent do predatory litigation and judicial activism impair competition in Brazil’s health and pharmaceutical sectors, and what measures can mitigate these effects?” It posits that the absence of binding criteria for identifying predatory practices, coupled with limited judicial expertise in competition and regulation, enables the courts' systematic misuse. By referencing the U.S. Noerr-Pennington doctrine, its sham-litigation exception, and related tests (such as PRE, POSCO, and fraudulent litigation), this research contrasts doctrinal protections against baseless lawsuits with practices including evergreening, patent thickets, and trademark misuse. Employing a convergent mixed-methods design, the study integrates: (a) a systematic review of literature, judicial statistics, and precedents; (b) quantitative analysis of a variety of cases from the Brazilian judiciary, focusing on the volume of lawsuits, their duration, and financial repercussions; and (c) qualitative case studies and semi-structured interviews with judges, lawyers, economists, and regulators. The synthesis of these findings aims to quantify economic damage, identify procedural bottlenecks, and offer evidence-based recommendations for regulators, competition authorities, and legislators to combat predatory litigation and promote accessible, innovative healthcare.

Competition and Innovation: Reflections and Insights (Volume II)

This book is a collection of the best articles from the 4th and 5th International Congress of the Brazilian Institute of Competition and Innovation - IBCI. In this volume, besides the debates about the challenges imposed by digital markets, interdisciplinary and transdisciplinary approaches to competition law are introduced, covering topics that are part of the resumption of antitrust law and addressing general issues involving traditional markets, such as the failing firm theory, behavioral economics, and the concept of sham litigation.

Competition and Supplemental Healthcare

This book addresses a topic of extreme relevance: competition in the supplemental healthcare sector in Brazil. The work takes an interdisciplinary approach to the main challenges faced by the sector’s regulation.

The book Competition and Supplemental Healthcare is divided into three parts: the first focuses on the challenges of regulating the supplemental healthcare sector in Brazil; the second offers a competitive analysis of the sector, primarily addressing the trend towards verticalization; and the third examines anti-competitive practices and innovation strategies.

Competition and Innovation: Reflections and Insights (Volume I)

This work is the result of the 3rd International Congress of the Brazilian Institute of Competition and Innovation – IBCI and includes the best articles selected from the event's call for papers, as well as contributions from speakers related to their panels and presented research.

Readers will find reflections from renowned Brazilian and international professors, as well as promising researchers from various backgrounds and research lines. In line with the 3rd IBCI International Congress, this book focuses on the main challenges posed to public authorities worldwide by the disruptive phenomenon of digital markets and ecosystems.

Editorial Board

André Santa Cruz

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