“The FTC continues to advance legal arguments that the Supreme Court rejected over a decade ago.”
—John Masslon, WLF Senior Litigation Counsel

Click here for WLF’s brief.

WASHINGTON, DC—Washington Legal Foundation (WLF) today urged the U.S. Court of Appeals for the Second Circuit to affirm a district court order dismissing an antitrust suit against several pharmaceutical companies. In its amicus brief, WLF argues that the FTC’s amicus brief does not deserve any deference or special consideration.

The case arises from a settlement between Forest Pharmaceuticals and generic drug companies, who agreed to drop their challenges to a Bystolic patent and to delay launching less expensive, competing generic versions of Bystolic for years. A group of direct purchasers, indirect purchasers, and retail drug stores sued, alleging that these agreements violate the antitrust laws. The District Court granted the defendants’ motion to dismiss, finding that the operative complaint failed to state a claim under the Supreme Court’s decision in FTC v. Actavis. The plaintiffs appealed, and the FTC filed an amicus brief supporting their position.

In its brief, WLF argues that the Second Circuit should ignore the FTC’s brief because the Commission lacks any credibility. First, the Supreme Court rejected in Actavis the arguments that the FTC advances in its brief. Second, despite investigating the deals at issue here, the FTC did not sue. This is likely because the reverse payment was less than $7 million per generic drug maker, which is the FTC’s stated threshold for allowable compensation for litigation costs. Finally, the FTC continues to ignore its own in-house ethics advice.

WLF’s brief also argues that the FTC lacks any expertise in construing Federal Rule of Civil Procedure 12. Earlier this term, the Supreme Court said that the FTC does not possess any expertise in deciding pure questions of law, like interpreting the Constitution. The same holds true for interpreting the Federal Rules of Civil Procedure, which is also a pure question of law. For these reasons, WLF urges the Second Circuit to disregard the FTC’s amicus brief.