The Federal Trade Commission (FTC) is seeking to apply its success before the U.S. Supreme Court to another type of patent settlement.
The agency has asked the U.S. District Court for the District of New Jersey to accept its amicus brief in In re Effexor XR Antitrust Litigation. The Federal Trade Commission brief argues in favor of applying the precedent established in FTC v. Actavis to a settlement agreement based on a “no-authorized-generic” commitment.
The Supreme Court ruled that “pay-to-delay” agreements, under which brand name drug companies make payments to would-be competitors who make generic substitutes to keep the generic substitutes out of the market, can be subject to anti-trust scrutiny.
In the instant case, Wyeth Pharmaceutical Co. agreed not to compete with an authorized generic version of the drug Effexor XR to induce Teva Pharmaceuticals USA Inc. to abandon its patent challenge and refrain from selling its generic version of Effexor XR for two years. Brand-name drug makers manufacture authorized generic drugs as a way to ward of generic sales, particularly during the 180-day exclusivity period reserved for the first-filing generic under the Hatch-Waxman Act.
The pharmaceutical companies argue that the settlement should be immune from antitrust scrutiny because delayed entry was secured by a non-compete agreement rather than cash. Meanwhile, the Federal Trade Commission argues that “accepting the defendants’ claim of immunity whenever patentees use vehicles other than cash to share the profits from an agreement to avoid competition elevates form over substance, and it would allow drug companies to easily circumvent the ruling in Actavis, at great cost to consumers.”
It is unclear if the court will accept the amicus brief. A ruling is expected this month.
If you have any questions about this case or would like to discuss the legal issues involved, please contact me, Fred Zemel, or the Scarinci Hollenbeck attorney with whom you work.
Reputational Risk and Legal Exposure: Why New Jersey Businesses Must Manage Them Together
New Jersey businesses must manage legal and reputational risk together because modern disputes play out on two fronts at once: the legal proceeding itself and the court of public opinion, where customers, employees, investors, and business partners often reach conclusions long before a judge or jury has had the opportunity to evaluate the facts. Success […]
Eviction Is Not Always the End: Understanding Post-Possession Rent Claims in New Jersey and New York
No. An eviction does not automatically end a tenant’s obligation to pay rent. Post-eviction rent claims are common because recovering possession resolves who has the right to occupy the premises, but it does not extinguish the tenant’s contractual obligations under the lease. Whether unpaid or future rent remains owed depends on three factors: the lease’s […]
Company Dissolved? Legal and Financial Consequences to Expect
A company is dissolved; legally, it ceases to exist. Accordingly, dissolution results in significant legal and financial consequences. It is a process that must be properly managed to avoid continuing liability. The Corporate Dissolution Process Corporate dissolution is the legal process of formally closing a corporation, paying its debts and distributing the remaining assets. Most […]
The Legal Implications of Signing a Triple Net Lease
A triple net lease is a commercial lease in which the tenant pays the property’s real estate taxes, insurance, and maintenance costs, known as the three nets, in addition to base rent. They are most often used in freestanding retail and office buildings and in large single-tenant industrial properties, with terms that typically run 10 […]
When to Settle and When to Fight: A Litigator's Framework
Every lawsuit comes with a cost, and knowing when to settle a lawsuit is one of the most consequential decisions a business owner will face. Experienced litigators understand how to minimize cost and obtain certainty for their clients. For many business owners, the decision is viewed almost entirely through a financial lens: What will it cost […]
Types of Business Law Services Companies Actually Use
Business law services are legal services that help companies form, operate, transact, protect assets, manage risk, and resolve disputes. The phrase can sound broad because it is broad. A company may need help with entity formation one month, contract review the next, a commercial lease after that, and a business dispute later in the year. […]
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Sign up to get the latest from our attorneys!
Explore What Matters Most to You.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
