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Federal Court

The Federal Trade Commission filed an amicus brief with the U.S. District Court for the District of Delaware in the case of Sage Chemical, Inc. et al. v. Supernus Pharmaceuticals, Inc. et al. The brief explains: (1) the potential harm to competition and consumers posed by a brand’s exclusion of generic competition from the market; (2) that a competitor’s marketing of an FDA-approved generic pharmaceutical product intended to work with the branded product is not improper free-riding under the antitrust laws; (3) that exclusive agreements can substantially foreclose competition from the market by barring a potential competitor’s access to a key input even if that competitor could theoretically develop its own alternative to that input; and (4) that single-brand or single-manufacturer markets are appropriate and not legally deficient when there are no adequate substitutes.