FTC Issues Release in Wake of Ruling Limiting Restitution for Consumers

The Federal Trade Commission issued a press release Friday concerning the Supreme Court’s decision not to review a ruling that the agency said prevented it from compensating consumers due to anticompetitive conduct by pharmaceutical companies AbbVie and Besins.

The Third Circuit, the release said, affirmed a lower court decision that the two companies violated antitrust laws by using “baseless litigation to delay generic competition.” The panel, the release said, also reversed a ruling that gave $493.7 million to the FTC for the purpose of returning it to the affected customers. The Supreme Court chose not to review this ruling, which led the FTC to withdraw the last remaining count in its complaint.

The release explained that, in an effort to delay competition, the two companies filed unfounded patent infringement lawsuits that would prevent customers from accessing less expensive alternatives to their AndroGel. The court found the companies liable for violating antitrust laws in June 2018, and subsequently provided the FTC with a large sum of money that was intended to be returned to customers. Following this, the Third Circuit reversed the equitable monetary relief decision and explained that the “FTC is not entitled to disgorgement under 13(b) of the FTC act.”

The Acting Director of the Bureau of Competition, Holly Vedova, explained in the statement “the Commission is deeply disappointed that we cannot compensate consumers who were the victims of AbbVie’s and Besin’s anticompetitive conduct, despite proving that the companies engaged in illegal sham litigation.”

Vedova expanded by saying that the case was indicative of the need for the FTC to be reinstated as the main authority that seeks “equitable relief for consumers in competition cases.” She called for Congress to restore the FTC’s authority to seek disgorgement so that they would have the ability to give customers money they had lost due to anticompetitive activity by the pharmaceutical companies.