Supreme Court Denies Certiorari in FTC v. Schering: reverse payment settlement of Hatch-Waxman case avoids antitrust scrutiny by high court

The Supreme Court this morning denied review of FTC v. Schering, without comment.  The FTC had petitioned the Court to decide whether a "reverse payment" settlement from an innovator drug company to a generic drug maker in a Hatch-Waxman case violated the antitrust laws.  Denial by the Supreme Court leaves standing an Eleventh Circuit ruling that the settlement was legal.

Earlier, the Court had asked the Department of Justice for its views on the case, and the DOJ filed a brief advising the Court to deny review.  The FTC then filed a supplemental brief asking the Court to at least hold the case pending the outcome of In re Tamoxifen Citrate Antitrust Litigation, which is currently on petition for rehearing en banc in the Second Circuit.  That case involves a similar reverse payment settlement of Hatch-Waxman litigation.

The FTC is no doubt bitterly disappointed that the Supreme Court denied its cert petition.  Last month, the FTC Commissioner sounded a warning that if the Court denied review, drug companies "will have carte blanche to avoid competition and share resulting profits, and we will see minimal competition before patent expiration."

RELATED READING:

• 26 June 06 Wall Street Journal article
• 26 June 06 Washington post article
• previous Orange Book Blog posts on FTC v. Schering:  19 June 06; 26 May 06; 19 May 06; 9 May 06