Fifth Cir­cuit sides with FTC in ma­jor pay-for-de­lay set­tle­ment case

The US Court of Ap­peals for the Fifth Cir­cuit on Tues­day up­held the Fed­er­al Trade Com­mis­sion’s rul­ing that gener­ic drug­mak­er Im­pax Lab­o­ra­to­ries should be charged with an­titrust vi­o­la­tions for ac­cept­ing pay­ments worth about $100 mil­lion to de­lay the en­try of a gener­ic opi­oid for more than two years.

The court’s opin­ion up­held the FTC’s an­ti­com­pet­i­tive find­ings on the deal be­tween Im­pax (now owned by Am­neal Phar­ma­ceu­ti­cals) and En­do Phar­ma­ceu­ti­cals, un­der which En­do com­mit­ted to not mar­ket an au­tho­rized gener­ic, which in­creased Im­pax’s pro­ject­ed prof­its by $24.5 mil­lion. En­do agreed to pay Im­pax cred­its for the shrunk­en mar­ket that Im­pax would in­her­it if, as ex­pect­ed, En­do made a suc­cess­ful hop to a re­for­mu­lat­ed Opana ER.

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