FTC Seeks U.S. Supreme Court Review in AndroGel "Pay-for-Delay" Case

At the request of the Federal Trade Commission, the Solicitor General of the United States petitioned the U.S. Supreme Court to review a recent federal appeals court ruling concerning the FTC’s case against a “pay-for-delay” agreement that postponed generic competition for the testosterone-replacement drug AndroGel.  The filing, known as a petition for certiorari, was made with the Court today. The Supreme Court case is Federal Trade Commission v. Watson Pharmaceuticals, Inc., No. 12-416.

On February 2, 2009, the FTC filed a complaint in federal district court challenging agreements in which Solvay Pharmaceuticals, Inc. paid generic drug makers Watson Pharmaceuticals, Inc., Paddock Laboratories, Inc., and Par Pharmaceutical Companies, Inc. to delay generic competition to Solvay’s branded testosterone-replacement drug, a prescription pharmaceutical with annual sales of more than $400 million.  The complaint alleged that the companies violated the antitrust laws when Solvay paid the generic firms millions of dollars annually in exchange for their agreements to abandon their patent challenges to Solvay’s drug and to refrain from marketing a generic version of AndroGel until 2015. 

After the case was filed in U.S. District Court for the Central District of California, it was transferred to the U.S. District Court for the Northern District of Georgia, which dismissed the FTC’s complaint.  The FTC appealed to the U.S. Court of Appeals for the Eleventh Circuit on June 10, 2010.  That court upheld the District Court’s ruling on April 25, 2012.

The Commission vote authorizing the staff to request that the Solicitor General file the petition for certiorari with the Supreme Court was 5-0. 

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action.  To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to antitrust{at}ftc{dot}gov, or write to the Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission, 601 New Jersey Ave., Room 7117, Washington, DC 20580.  To learn more about the Bureau of Competition, read Competition Counts.  Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases for the latest FTC news and resources.