Press Release

Open Markets Supports FTC in Suit Against Pharmaceutical “Pay-For-Delay Agreements”

WASHINGTON — On Monday, the Open Markets Institute filed an amicus curiae brief in the Fifth Circuit Court of Appeals in support of the Federal Trade Commission (FTC) in its suit against generic drug maker Impax Laboratories. 

In a March 2019 decision, the FTC unanimously found Impax guilty under the FTC Act for accepting consideration worth tens of millions of dollars from Endo Pharmaceuticals in exchange for postponing entry into the market for an extended-release opioid, Opana ER. This collusion lets both companies profit at the expense of countless patients. Impax’s actions violated antitrust law, and its petition for review of the FTC’s ruling should be denied. 

The Supreme Court has consistently ruled that collusion among rivals is illegal. The FTC and scholars have found that pay-for-delay agreements cost patients and the public billions of dollars annually.  

“Pay-for-delay agreements are especially harmful to the millions of Americans who need lower-cost drugs,” said Sandeep Vaheesan, Legal Director of Open Markets Institute. “At a time when drug prices are sky-rocketing in this country; when Americans are dying because they cannot afford life-saving medication; Impax should be held accountable for its collusive agreement with Endo. The FTC’s analysis and ruling in this case are fully consistent with Supreme Court precedent and promote the deterrence of pay-for-delay agreements. Overturning the FTC’s decision would permit Impax to get away with collusion and empower other drug manufacturers to pursue similar schemes. The Fifth Circuit should deny Impax’s petition for review.”  

Read the full brief here.

For more information:

The Role of Monopoly in America’s Prescription Drug Crisis