FTC Continues Aggressive Posture On Reverse Payment Settlement Agreements With Reference To Disgorgement

In two recent statements, the FTC reaffirmed its intention aggressively to pursue reverse-payment patent settlement agreements in the pharmaceutical industry. 

First, Commission officials stated that they are currently combing through previous pharmaceutical settlement agreements to determine quickly which cases to pursue following the Supreme Court's 2013 ruling in FTC v Actavis that reverse payment settlements – also known as "pay-for-delay" settlements – are not immune from antitrust scrutiny.  Second, the head of the FTC's Bureau of Competition stated that the Commission will consider "a range of remedies" and will seek "whatever relief is necessary" in any particular case, including "disgorgement," i.e., requiring companies to give up profits obtained illegally.  The Director indicated that the FTC hopes to obtain a billion dollar settlement in at least one pay-for-delay case this year.