Second Circ. Affirms Toss Of Bystolic Antitrust Suit

In the Media
2 min read

Law360 examines the impact of the important dismissal of antitrust claims brought against AbbVie Inc., Allergan Inc., Forest Laboratories and Actavis Inc., among other pharmaceutical companies, in In re Bystolic Antitrust Litigation in the US Court of Appeals for the Second Circuit, in which purchasers of high-blood-pressure drug Bystolic and its generic equivalents accused the drug's manufacturers of "unlawful 'reverse' settlement payments."

A White & Case Antitrust team co-led by partners Eric Grannon, Mark Gidley, Peter Carney and Adam Acosta, and counsel Celia McLaughlin, led the high-blood-pressure drug manufacturers to victory, and secured the dismissal with prejudice of the so-called "pay for delay" claims brought by Plaintiffs including CVS Pharmacy and the Rite Aid Corporation. 

In both the US District Court for the Southern District of New York and the Second Circuit, Grannon successfully argued for dismissal on behalf of all defendants.

On Monday, May 13th, the Second Circuit issued its decision, affirming the dismissal of the case, alleging that an AbbVie predecessor delayed competition for its hypertension treatment, Bystolic, through deals with several generic makers.

The appeals court said these payments are only unlawful when they are made to induce a generic maker to stay off the market, and said the payments have to be both large and unjustified.

The piece notes that, "the case marks the first time the Second Circuit has considered a claim under the US Supreme Court's 2013 US Federal Trade Commission v. Actavis decision that found patent infringement settlements between branded and generic drugmakers can violate antitrust law in some circumstances."

White & Case partners Grannon and Gidley were counsel of record in the US Supreme Court’s Actavis decision on behalf two respondent pharmaceutical companies.

The opinion, written by Judge Dennis Jacobs, noted that Actavis is "not self-reading," but said it provides several general principles to help courts determine if payments made by a branded drug patent holder to an alleged infringer violate antitrust law.

Law360 also reported that the Defendants prevailed before the Second Circuit despite the Federal Trade Commission joining the appeal as amicus curiae in support of the Plaintiffs and seeking reversal. 

See the full Law360 article here.

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