On February 25, 2019, the U.S. Court of Appeals for the Third Circuit sharply curtailed the Federal Trade Commission’s (FTC) enforcement powers, ruling that Congress has strictly limited the FTC’s statutory authority to file lawsuits for injunctive relief against those it accuses of having engaged in unfair competition. The decision was a victory for WLF, which filed a brief arguing that Congress limited the FTC’s authority to file suit to those instances in which a defendant “is violating, or is about to violate” the Federal Trade Commission Act. Quoting directly from WLF’s brief, the court agreed with WLF that the about-to-violate standard requires the FTC to provide evidence of the defendant’s near-term plans. The FTC’s lawsuit contended that a drug company filed a “sham” petition with the FDA for the purpose of delaying approval of generic versions of its brand-name drug. But the FTC did not file its suit until 2017, five years after the company had ceased its petitioning activity.
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