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FTC asks U.S. Court of Appeals to correct antitrust violation holding

By Mark Iandolo | Feb 19, 2016

BOSTON (Legal Newsline) – The Federal Trade Commission filed an amicus brief in the U.S. Court of Appeals for the 1st Circuit that asks the court to correct the district court’s holding that a plaintiff needs to prove an injury-in-fact to establish an antitrust violation.

The FTC’s goal is to show the distinction between an antitrust violation, which requires a general showing of harm to the competitive process, and an antitrust standing, which requires a plaintiff to show that it suffered an injury-in-fact caused by the violation. The FTC believes the distinction has important implications for federal antitrust enforcers.

In the brief, the FTC also argues that a reverse payment from a brand-name drug maker used to settle patent litigation can violate antitrust laws if it induces a generic drug maker to abandon its challenge and stay away from the market.

The case that underlies all this deals with allegations against AstraZeneca Pharmaceuticals, which purportedly made a payment to generic challenger Ranbaxy Laboratories so that Ranbaxy would abandon its patent challenge. A jury ruled after a trial that AstraZeneca’s reverse payment was unjustified and anticompetitive.

The court also ruled, however, that the plaintiffs did not establish that Ranbaxy would have entered the market earlier without the payment. The court decided there was no antitrust violation.

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U.S. Federal Trade Commission

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