The Federal Trade Commission (FTC) and the New York State Attorney General (NY AG) just filed an antitrust lawsuit against, among others, Vyera Pharmaceutical Inc. (“Vyera”) and Martin Shkreli.  See FTC v. Vyera Pharmaceuticals, et al., Case No. 20 CV 00706 (2020) (Judge Cote). The Complaint contained numerous allegations against the defendants, including, Monopoly Maintenance and Agreements in Restraint of Trade, both violations of the Sherman Act and the FTC Act.

The basis of the allegations against the defendants involve a scheme to block lower cost generic competition for Daraprim, a drug used to treat the parasitic infection toxoplasmosis.  After the defendants acquired the U.S. rights to Daraprim, the price of the drug was raised by more than 4,000 percent.  The Defendants were accused of creating a “complex web” of contractual restrictions to prohibit distributors from reselling Daraprim to generic companies or their agents. The defendants also signed “data-blocking” agreements with distributors to prevent them from selling their Daraprim sales data to third-party data reporting companies.

According to the government, the foreclosure of generic entry led to higher prices for consumers. According to the Complaint, the defendants have monopoly power in a relevant market for FDA-approved Pyrimethamine Products. We would anticipate that motions to dismiss will be filed by the defendants and, if denied, discovery will commence.  These cases generally take one to two years through trial.

The recent complaint is similar in nature to an antitrust case filed in 2020 in the Southern District of Alabama against Jubilant Draximage by Cox Nuclear Pharmacy, et al.  AGG represents one of the Plaintiffs in this antitrust case. The allegations against Jubilant involve, inter alia, unlawful monopolization of the MAA and DTPA Markets, as well as MDP and Sodium Iodine I-131 Markets.