Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC amicus brief urges reversal of dismissed Effexor XR pay-for-delay suit, (Nov 20, 2015)
Organizations Mentioned:Teva | Teva Pharmaceuticals | Wyeth | Wyeth, Inc. | Wyeth-Whitehall Pharmaceuticals
By Greg Hammond, J.D.
The FTC is urging the U.S. Court of Appeals in Philadelphia to reverse a decision by the federal district court in Trenton, New Jersey, dismissing a complaint that alleges Wyeth, Inc. entered into illegal reverse payment settlement agreements concerning Effexor XR, an extended release antidepressant (In re Effexor XR Antitrust Litigation, Lead Case No. 3:11-cv-05479-PGS-LHG).
Companies that directly purchased Effexor XR from Wyeth claimed that Wyeth prevented and delayed the approval and marketing of generic versions of Effexor XR in violation of the Sherman Act. In particular, the plaintiffs asserted that Wyeth engaged in sham litigation to block and delay multiple generic companies from entering the generic Effexor XR market; entered into an illegal horizontal market allocation and price fixing reverse settlement agreement with Teva Pharmaceuticals; and negotiated settlements with subsequent generic applications for the sole purpose of preserving and protecting its alleged monopoly and market division agreement with Teva.
The district court dismissed the claims in October 2014, finding that the complaint failed to state a claim, in part, because the parties submitted their settlement proposal to the FTC and the Commission declined to file an objection in the underlying patent suit. The case is currently before the U.S. Court of Appeals in Philadelphia.
In its amicus brief, the Commission asserts that the district court made two errors, including that: (1) the court mistakenly relied on the parties’ advance submission of their settlement agreement to the FTC as evidence of a lack of intent to violate the antitrust laws; and (2) the court erroneously regarded the agency’s decision not to object at that time as a basis for insulating the settlement agreement from antitrust review. “Both errors reflect a serious misunderstanding of controlling law,” the brief states.
Companies: Wyeth, Inc.; Wyeth-Whitehall Pharmaceuticals
News: Antitrust FederalTradeCommissionNews