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 surged 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.
Litigation in the Health Sector as a Predatory Practice and the Competition Challenges of Judicial Activism in Brazil
August 20, 2025
