AndroGel Litigation Finally Ready For Trial, But Plaintiffs' Paths To Proving Causation Curtailed

David Kully is a Partner in the Washington D.C. office

Charles Weiss is a Partner in the New York office

Five years after the U.S. Supreme Court found in FTC v. Actavis, 570 U.S. 136 (2013), that large and unjustified payments from a brand pharmaceutical manufacturer to prevent generic entry can provide a basis for an antitrust claim (and almost 10 years after the FTC first initiated the suit), the underlying case now appears ready for trial. The case concerns payments by Solvay to two generic manufacturers that delayed the release of generic versions of Solvay's AndroGel, a prescription topical gel used to treat low testosterone in men. On June 14, Judge Thomas W. Thrash of the U.S. District Court for the Northern District of Georgia issued an opinion and order denying—with one narrow exception—the defendants' motions for summary judgment on the FTC's and private plaintiffs' claims.