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Bipartisan Group of Attorneys General Object to Pharmaceutical Pay-for-Delay Arrangements

  • A bipartisan group of 20 AGs, led by Washington AG Bob Ferguson, filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit in UFCW Local 1500 Welfare Fund v. AbbVie, Inc., arguing that the district court erred in finding that AbbVie’s allegedly anticompetitive agreements with generic competitors (“pay-for-delay agreements”) regarding its drug Humira were permissible under the U.S. Supreme Court’s decision in FTC v. Actavis.
  • The brief argues, among other things, that the district court misapplied the Actavis decision, in which the U.S. Supreme Court held that the Federal Trade Commission could challenge pay-for-delay agreements under federal antitrust law, by erroneously holding that AbbVie’s agreements were automatically immune from antitrust scrutiny while Abbvie’s Humira patents have not yet expired, and noted that multiple circuit court decisions have rejected this position since Actavis.
  • The brief also argues that upholding the district court’s decision would embolden pharmaceutical companies to engage in anticompetitive conduct and that AbbVie’s pay-for-delay agreements allegedly stopped the introduction of generic versions of Humira into the U.S. market.