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Jonathan Lutinski, Ryan Maddock, Seth Silber, Dec 31, 2014
Chief Justice Roberts’ statement “good luck to the district courts” in his dissent in FTC v. Actavis was certainly prophetic. Since the Court’s issuance of that decision in June 2013, the district courts have been dragged into numerous additional cases—more than a dozen cases are currently pending—and more than a half dozen decisions have come down with rulings providing a broad spectrum of interpretations as to what the Court meant by a “large and unexplained” payment.
The U.S. Federal Trade Commission, which brought the Actavis case, has added further layers of complexity to pharmaceutical companies trying to understand the post-Actavis landscape. On September 8, 2014, the FTC brought its first “pay-for-delay” case since it filed the Actavis case back in January 2009—a case against AbbVie that also includes sham litigation claims—and has launched at least three significant investigations during 2014. The FTC also, changing tack after more than a decade, is now pursuing disgorgement in “pay-for-delay” cases, although the dissenting votes of the two Republican Commissioners in the AbbVie case may indicate a lack of uniformity on this issue, and perhaps indicate some break in the lock-step bipartisan support “pay-for-delay” cases have enjoyed at the FTC since the late 1990’s.
This article examines the current quagmire in the courts, the FTC’s recent activities, and finally explores growing interest outside the United States in getting into the “pay-for-delay” fray.