This was good news not just for the plaintiffs, led by two major drugstore chains, but also for U.S. Federal Trade Commission chair Jon Leibowitz, who has crusaded against pay-to-delay deals, which he calls “abusive.” (Our previous post on Leibowitz’s fight against pay-to-delay deals can be found here.) The agency has estimated that these arrangements–which allow pharmaceutical companies to pay generic rivals to keep cheaper drugs off the market–cost consumers roughly $3.5 billion a year.
“This is very significant,” said Professor Michael Carrier of Rutgers University School of Law, Camden, whose blog post about the Second Circuit ruling can be found here. Before the ruling, he said, “It seemed like there would be no breakthrough.” Other appellate courts had upheld pay-to-delay deals, and the U.S. Supreme Court had denied certiorari when asked to review their rulings. In addition, he said, an effort to change the law in the recently-passed health care legislation came to naught. “This could be the best chance the FTC and the plaintiffs have had in a very long time [to end this practice],” he said.
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