Give It Back! Disgorgement – Another FTC Arrow Against Reverse-Payment Settlements That Delay Generic Entry

If the uncertainty that the Supreme Court's Actavis decision injected into the world of reverse-payment settlement litigation wasn't enough to get your attention, then the FTC's recent effort to obtain disgorgement from Cephalon in a reverse-payment case should do so.

Cephalon is arguing that the federal district court should dismiss the FTC's near six-year-old complaint because the case is now moot in the wake of the generic entry.  The FTC says it was Cephalon's payments that delayed that entry.  In its complaint, the FTC sought to enjoin Cephalon from enforcing its agreements with the generic companies, while also seeking unspecified "other equitable relief."

Not so fast, says the FTC.  It says that its prayer for relief and the district court's inherent equitable power provide more than enough support for the district court to not only (1) enter an injunction preventing a recurrence of the same or similar conduct, but also (2) order equitable relief in the