FTC Commissioner Wright And D.C. Circuit Judge Ginsburg Criticize Second Circuit's Actavis Ruling

We have been following developments in People of the State of New York v. Actavis, the New York Attorney General's "product hopping" suit against Actavis and its subsidiary, Forest Laboratories LLC (together, "Actavis"). Now, an FTC Commissioner and a D.C. Circuit Judge have weighed in as well—and they are criticizing a key portion of the Second Circuit's ruling.

As we have explained, "product hopping" cases allege that a pharmaceutical manufacturer has reformulated or otherwise altered a drug to prevent automatic generic substitution, and that this violates the antitrust laws. In the Actavis case, the Attorney General's office claims that Actavis introduced an extended release formulation of its Alzheimer's drug, Namenda, to stave off predicted losses from generic sales of the drug.