In re Lamictal Direct Purchaser Antitrust Litigation

Brief of the Federal Trade Commission as amicus curiae urging the U.S. Court of Appeals for the Third Circuit to reverse a district court determination that a brand-name drug manufacturer’s commitment not to introduce an authorized generic version of its own brand-name drug in exchange for a generic drug company’s promise to drop a challenge to the patent claiming the brand-name drug was not a “reverse-payment” under the U.S. Supreme Court’s decision in FTC v. Actavis, Inc., 133 S. Ct. 2224 (2013). Not only can an agreement containing a no-authorized-generic commitment constitute a potentially anticompetitive reverse payment under Actavis, the parties’ mutual agreements not to compete in each other’s markets may violate the antitrust laws as an unlawful market allocation.