The US Court of Appeals for the Third Circuit holds the FTC must show defendants are ‘about to violate’ the law for injunctive relief and disgorgement (Shire Viropharma)

On February 25, 2019, in FTC v. Shire ViroPharma, Inc., the U.S. Court of Appeals for the Third Circuit confirmed that the Federal Trade Commission (FTC) cannot plead its way into federal court via Section 13(b) of the FTC Act in the absence of specific allegations that a defendant “is violating, or is about to violate” a law enforced by the FTC. Highlighting the absence of such allegations from the FTC’s complaint, the Third Circuit’s affirmance of the lower court’s dismissal blocked the agency from seeking a permanent injunction against brand-name pharmaceutical company Shire ViroPharma (Shire) as well as other equitable relief, including disgorgement. The FTC had sought to enjoin Shire from employing tactics that Shire had allegedly used to prevent generic drugs from competing with one

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Authors

  • Skadden, Arps, Slate, Meagher & Flom (Washington)
  • Skadden, Arps, Slate, Meagher & Flom (Washington)
  • Skadden, Arps, Slate, Meagher & Flom (Washington)

Quotation

Tara L. Reinhart, David P. Wales, Julia K. York, The US Court of Appeals for the Third Circuit holds the FTC must show defendants are ‘about to violate’ the law for injunctive relief and disgorgement (Shire Viropharma), 25 February 2019, e-Competitions February 2019, Art. N° 107892

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