The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling regarding an unlawful pay-for-delay agreement in the pharmaceutical sector (Endo / Impax)

On April 13, 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Federal Trade Commission’s (“FTC” or “Commission”) ruling that the “reverse-payment” settlement agreement between Endo Pharmaceuticals Inc. (“Endo”) and Impax Laboratories LLC (“Impax”) violated federal antitrust laws. The Fifth Circuit’s decision—which upholds the FTC’s first fully-litigated reverse-payment case since the Supreme Court’s landmark 2013 ruling in FTC v. Actavis (“Actavis”)—found the FTC’s findings that Endo and Impax entered into an unlawful “pay-for-delay” agreement to be supported by “substantial evidence.” Significantly, the panel also rejected Impax’s primary argument that the FTC needed to do more under the rule of reason to balance the anticompetitive conduct against procompetitive justifications—namely that

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William Lavery, Christine Ryu-Naya, Christopher Wilson, The US Court of Appeals for the Fifth Circuit upholds the FTC’s ruling regarding an unlawful pay-for-delay agreement in the pharmaceutical sector (Endo / Impax), 13 April 2021, e-Competitions March 2021, Art. N° 100304

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