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After the Supreme Court declined to review a ruling from the Third Circuit that AbbVie used sham litigation to illegally maintain a monopoly, the Federal Trade Commission has withdrawn the remaining count in its complaint.

“The Commission is deeply disappointed that we cannot compensate consumers who were the victims of AbbVie’s and Besins’s anticompetitive conduct, despite proving that the companies engaged in illegal sham litigation,” said Holly Vedova, Acting Director of the Bureau of Competition. “Here, the FTC would have been able to return almost a half billion dollars directly to AndroGel consumers. Instead, AbbVie and Besins can retain all of the ill-gotten gains resulting from their illegal anticompetitive conduct. This case highlights the pressing need for legislation reinstating the FTC’s authority to seek equitable monetary relief for consumers in competition cases. Congress should act quickly to restore Section 13(b) of the FTC act and the Commission’s ability to return to consumers money lost due to illegal anticompetitive behavior by pharmaceutical companies.”

In 2014, the FTC filed a complaint in federal district court, charging that AbbVie and its partner Besins Healthcare Inc. illegally blocked patients’ access to lower-cost alternatives to AndroGel by filing baseless patent infringement lawsuits against potential generic competitors. The complaint also alleged that AbbVie settled one of its infringement lawsuits with an illegal reverse-payment agreement. The district court dismissed the reverse-payment claim, but in June 2018 found AbbVie and Besins liable for filing sham litigation in violation of the antitrust laws, and awarded the FTC $493.7 million in equitable monetary relief to return to consumers.

In September 2020, the Third Circuit affirmed the district court’s finding of liability on the FTC’s sham litigation claim, and reinstated the reverse payment claim, two important legal victories that protect competition in pharmaceutical markets. Last month, the Supreme Court denied AbbVie and Besins’s petition for certiorari on the sham litigation claim, exhausting the companies’ options for appeal and allowing the liability ruling to stand.

Since the initial filing of the lawsuit, generic AndroGel products have entered the market, so that patients now benefit from competition among multiple suppliers.  In addition, AbbVie and Teva are now subject to Commission orders preventing them from entering into certain reverse-payment settlements. Today, the Commission has withdrawn its reverse-payment claim from federal district court, ending its litigation against AbbVie.

While handing the Commission important legal victories, the Third Circuit reversed the district court’s nearly half-billion dollar monetary judgment for consumers, holding that the FTC is not entitled to disgorgement under 13(b) of the FTC Act. This determination was effectively affirmed by the Supreme Court’s decision in AMG Capital Management v. FTC.

The Commission vote to withdraw its complaint against AbbVie and close the case was 4-0-1. Commissioner Christine S. Wilson did not participate.

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Markus Meier
Bureau of Competition