But on Friday, beleaguered plaintiffs in a pay-to-delay case involving Bayer’s Cipro antibiotic finally got some good news. After losing their case at the U.S. Court of Appeals for the Second Circuit, the plaintiffs (including CVS and Rite Aid) filed a Dec. 6 petition for certiorari with the U.S. Supreme Court. Last week, their cert bid attracted supporting amicus briefs from 32 state attorneys general, as well as the Consumer Federation of America, the American Antitrust Institute, AARP, and three other groups.
Opponents of pay-to-delay deals once had high hopes that the Second Circuit would use the Cipro case as a vehicle for blocking the practice. In April 2010, a three-judge appellate panel, citing the circuit’s precedent in a case involving the cancer drug Tamoxifen, affirmed a 2005 summary judgment ruling against the plaintiffs, who had challenged a 1997 deal in which Bayer paid Barr Laboratories $398 million to delay sales of a generic version of Cipro. But the appellate judges also urged the plaintiffs to seek en banc review, due to the “important issues at stake.” Nevertheless, last September the Second Circuit rejected the plaintiffs’ request for a rehearing–despite amicus support from the Department of Justice, the American Medical Association, and 34 state AGs.
