Second Circuit – Antitrust: In re Bystolic Antitrust Litigation

Listen to this article

United States Court of Appeals for the Second Circuit

Antitrust

Reverse settlement payments

In re Bystolic Antitrust Litigation

23-410(L)

Judges Sack, Jacobs, and Nardini

Background: The brand manufacturer of a high-blood-pressure drug settled patent-infringement litigation that it brought against seven manufacturers of generic versions of the drug. Contemporaneously with each settlement, the generic manufacturers agreed to forgo launch of their products for several years and the defendants entered into business transactions whereby it paid generic manufacturers for goods and services. The plaintiffs are entities who purchased both the brand name and generic versions of the drug. They commenced an action alleging unlawful reverse settlement payments to delay the market entry of a generic drug. They appeal the dismissal of their claims.

Ruling: The Second Circuit affirmed. The court held that the plaintiffs failed to plausibly allege that any of the defendant’s reverse payments were unjustified or unexplained, instead of constituting fair value for goods and services obtained as a result of arms-length dealings.

Allon Kedem and Kent A. Yalowitz, of Arnold & Porter Kaye Scholer, for the plaintiffs-appellants; Mitchell R. Berger, of Squire Patton Boggs, for the defendants-appellees; Benjamin H. Torrance, assistant United States attorney, for the intervenor-appellant.

Oral argument audio