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FTC Urges 2nd Circ. to Revive Bystolic Antitrust Case


June 21, 2023

The Federal Trade Commission urged the Second Circuit to revive claims from Bystolic buyers alleging that an AbbVie predecessor struck deals with several generic makers to delay competition for its hypertension treatment, saying the deals may violate antitrust law.

The commission filed an amicus brief on Tuesday backing an appeal in the case from wholesalers, retailers and employee benefit funds who allege they overpaid for the drug as a result of pacts between Forest Laboratories and six generic makers.

The agency said in a statement that a New York federal court was wrong to toss the claims after offering its own “hypothetical justifications” for side deals that were part of settlements ending patent litigation over Bystolic and urged the appeals court to reverse.

“Plaintiffs challenging a reverse payment settlement only need to plead market power and facts from which a court can infer a large and unjustified reverse payment was tendered,” the commission said. “In this case, the FTC argues plaintiffs did meet these standards.”

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The Baltimore government and employee health plans are represented by Cohen Milstein Sellers & Toll PLLC and DiCello Levitt LLC.

Read FTC Urges 2nd Circ. To Revive Bystolic Antitrust Case.