FTC urges Congress to step in over AbbVie antitrust claim
The US Federal Trade Commission (FTC) has dropped its remaining claim in a lawsuit against AbbVie and Besins Healthcare, after the US Supreme Court declined to rule that consumers had a right to be compensated by the companies.
The commission withdrew its claim that AbbVie used an illegal reverse-payment agreement to settle a lawsuit against Perrigo, confirming the decision in a statement released on July 30.
The development follows SCOTUS’ decision in June not to order the companies to pay nearly half a billion dollars in compensation to consumers after they were found to have illegally prevented generic competition to its testosterone therapy gel, AndroGel.
“The commission is deeply disappointed that we cannot compensate consumers who were the victims of AbbVie’s and Besins’ anticompetitive conduct, despite proving that the companies engaged in illegal sham litigation,” said Holly Vedova, acting director of the FTC’s bureau of competition.
“Here, the FTC would have been able to return almost a half billion dollars directly to AndroGel consumers. Instead, AbbVie and Besins can retain all of the ill-gotten gains resulting from their illegal anticompetitive conduct,” she said.
Baseless patent infringement lawsuits
Back in 2014, the FTC filed a complaint at the US District Court for the Eastern District of Pennsylvania, alleging that AbbVie and its partner Besins Healthcare had illegally blocked patients’ access to lower-cost alternatives to AndroGel by filing baseless patent infringement lawsuits against potential generic competitors.
In June 2018, the district court found AbbVie and Besins liable for filing sham litigation in violation of the antitrust laws and awarded the FTC $493.7 million in equitable monetary relief to return to consumers.
In September 2020, the US Court of Appeals for the Third Circuit affirmed the district court’s finding of liability on the FTC’s sham litigation claim and reinstated the reverse payment claim. But it reversed the district court’s monetary judgment for consumers, holding that the FTC is “not entitled to disgorgement” under 13(b) of the FTC Act, a decision upheld by SCOTUS.
‘Congress should intervene’
Following the decision, the agency called for Congress to intervene, arguing that the case highlighted the need for legislation reinstating “the FTC’s authority to seek equitable monetary relief for consumers in competition cases”.
“Congress should act quickly to restore Section 13(b) of the FTC Act and the commission’s ability to return to consumers money lost due to illegal anti-competitive behaviour by pharmaceutical companies,” said Vedova.
Since the initial filing of the lawsuit, generic AndroGel products have entered the market and AbbVie is now subject to commission orders preventing it from entering into certain reverse-payment settlements.
The commission vote to withdraw its complaint against AbbVie and close the case was 4-0-1.
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