The Federal Trade Commission has reluctantly withdrawn a remaining claim in a lawsuit over a so-called pay-to-delay deal after the U.S. Supreme Court determined the agency does not have authority to force companies to relinquish ill-gotten profits. And the development indicates that it may now be harder for the FTC to successfully bring antitrust cases against drug makers that reach these sorts of deals.
The move came after the U.S. Supreme Court declined to review an appeals court ruling made last fall in response to a lawsuit the FTC had brought against AbbVie (ABBV), which allegedly conspired with another company to thwart availability of lower-cost generic versions of its best-selling AndroGel testosterone treatment.
The accusations were at the heart of a pay-to-delay deal, a controversial arrangement that the FTC has long argued costs American consumers billions of dollars annually in higher prescription drug costs. In these deals, a brand-name drug maker settles with a generic rival by offering something of value in exchange for ending patent litigation and launching a copycat medicine at a future date.
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