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Ranbaxy and AstraZeneca Prevail in Nexium® Pay-For-Delay Case

On November 21, 2016, the U.S. Court of Appeals for the First Circuit upheld a 2014 jury verdict for AstraZeneca (AZ) and Ranbaxy regarding a 2012 payment of $700 million from AstraZeneca for Ranbaxy to abandon its challenge...more

11th Circuit better defines FTC’s ‘Unfair’ standard – The details are in the damage

In November 2016, the Court of Appeals for the 11th Circuit stayed a Federal Trade Commission (“FTC”) Final Order enforcing a complaint against LabMD related to the exposure of customer data. In the process of issuing the...more

The FTC Faces an Embarrassing Set-Back in its Data Security Enforcement Authority as the LabMD Saga Continues

On November 10th, the Eleventh Circuit Court of Appeals handed an embarrassing defeat to the Federal Trade Commission and an early Christmas present to LabMD, Inc. in the ongoing David and Goliath battle between the...more

Advertising Law - November 2016 #4

CARU Emphasizes Accurate Performance, Use Presentations for Children - Two recent Children's Advertising Review Unit decisions emphasize the importance of providing accurate performance and use presentations for products...more

Supreme Court Denies Cert in Lamictal Pay-For-Delay Litigation

Third Circuit has previously ruled that non-cash payments to settle patent litigation may violate antitrust laws. On November 7, 2016, the Supreme Court of the United States declined to hear the petition of...more

Supreme Court Will Not Review Pay-For-Delay Case over GSK’s Lamictal

On November 7, 2016, the U.S. Supreme Court declined to review an appeal from a Third Circuit decision finding that a settlement between GlaxoSmithKline (GSK) and Teva Pharmaceutical Industries Ltd. (Teva) involving the...more

LabMD Scores Early Win in FTC Appeal

The fight between the Federal Trade Commission and LabMD, the defunct medical testing lab, entered a new chapter late yesterday. In a 13-page ruling, the U.S. Court of Appeals for the Eleventh Circuit said that LabMD’s...more

Advertising Law - November 2016 #2

Advertiser’s Claims for Sex Supplement Too Vague for Lawsuit - An advertiser’s claims were too vague to be actionable, a California federal court held when dismissing a false advertising class action. Jonathan...more

Two reverse-payment appeals to watch

It has been over three years since the Supreme Court’s Actavis decision. Since then, numerous putative class actions alleging harm to competition as a result of “reverse-payment” settlements have flooded the courts. The...more

ANDA Update - Volume 2, Number 3

On-Sale Bar Is No Bar for Selling Manufacturing Services to the Inventor - Addressing what constitutes an invalidating “sale” under § 102(b), the US Court of Appeals for the Federal Circuit sitting en banc affirmed the...more

Misjoinder and Forum Shopping by the Government

We sometimes start our posts with disclaimers about how we do not know all the details of a case, perhaps supplemented by a little digging on the internet, or that we are not experts in some substantive area. We start this...more

FTC Targets Tech Support Companies for Deceptive Pop-Up Marketing

On October 12, 2016, the Federal Trade Commission (“FTC”) announced that a temporary restraining order had been issued by a court of law against five related tech support companies and their respective principals (the...more

In a Groundbreaking Decision, Third Circuit Provides Framework for Evaluating Numerosity

One of the least disputed elements of class certification is Rule 23(a)(1) numerosity, and so there is relatively little analysis from the courts about it. Last month, however, a divided panel of the Third Circuit provided a...more

Third Circuit Upholds Dismissal of Doryx ‘Product Hopping’ Suit

On September 28, 2016, the Third Circuit issued an opinion in Mylan v. Warner Chilcott, upholding the Eastern District of Pennsylvania’s holding on summary judgement that Defendants’ “product hopping” conduct did not violate...more

Third Circuit Focuses on Relevant Product Market and Lack of Anticompetitive Conduct in Doryx Product-Hopping Case

To prevail in a product-hopping case, a plaintiff must be prepared to establish both monopoly power and anticompetitive effects. On September 28, a unanimous panel of the U.S. Court of Appeals for the Third Circuit...more

Doryx: Third Circuit Affirms Dismissal of Product Hopping Claim

On September 28, 2016, in Mylan Pharmaceuticals Inc. v. Warner Chilcott Public Limited Co. (Doryx), the Third Circuit affirmed the lower court's grant of summary judgment against antitrust claims by generic manufacturer Mylan...more

Third Circuit Creates Framework for Analyzing Numerosity

The Third Circuit recently vacated class certification, granted by the Eastern District of Pennsylvania after nearly a decade of litigation, in an antitrust case alleging that a pharmaceutical company entered into agreements...more

Third Circuit says sunk discovery costs not a proper factor in class certification analysis

It is not every day that antitrust plaintiff classes fail to win certification due to lack of numerosity under Federal Rule of Civil Procedure 23(a)(1). Yet this week, absence of numerosity was the reason a Third Circuit...more

Teladoc Receives Support from the Feds

Earlier this week, the U.S. Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) filed an amicus brief with the Fifth Circuit stating that the Texas Medical Board’s (the “Board”) appeal was inappropriate and...more

Third Circuit Decertifies Class on Numerosity Grounds, Listing Relevant Factors for the First Time

The Modafinil decision bodes well for defendants and represents another step toward increased scrutiny of the class action device in the Third Circuit. On September 13, a divided panel of the U.S. Court of Appeals for...more

FTC Robocall Contest Rules Under Fire Again

Last August, we reported that the U.S. Court of Federal Claims had dismissed a lawsuit related to the Federal Trade Commission (the “FTC” or “Commission”) sponsorship of a contest promoting robocall-blocking technology,...more

Second Circuit Blazes New Trail in Set-Top Box Cases: Cable Service and Boxes Are Not Separate Products

Since 2008, cable customers have been suing cable operators across the country claiming operators violate the antitrust laws by forcing customers to lease set-top boxes from the operator to access “premium” cable services. ...more

Hartig Drug Co. v. Senju Pharmaceutical Co. (3rd Cir. 2016)

Perhaps one of the most influential first year law school classes for the task of learning how to "think like a lawyer" is civil procedure. Particularly when the professor is bold enough to engage students on the intricacies...more

Ninth Circuit Strips FTC of ‘Activities-Based’ Jurisdiction over Common Carriers

The FTC has no jurisdiction over common carriers even when they engage in non-common carrier activity, according to a recent U.S. Court of Appeals for the Ninth Circuit opinion. In FTC v. AT&T Mobility, No. 15-16585 (9th...more

Of “Lunch Stands and Merry-Go-Rounds”: Ninth Circuit’s Rejection of FTC Authority Over “Throttling” Could Have Far Reaching...

On August 29th, a Ninth Circuit panel unanimously held that the FTC has no power to challenge “throttling” of unlimited data plan customers by mobile broadband providers as an “unfair or deceptive act.” The panel found that...more

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