Third Circuit Hands the FTC a Stunning Loss

By Jennifer M. Thomas — They could have taken a middle ground, given the unique facts of FTC v. Shire ViroPharma — but instead the Third Circuit went whole hog with a decision that, if it stands, could set the FTC’s litigation authority back decades. In this case, bad facts made for very bad case law from the FTC’s perspective. Those who have been following our coverage of the Shire case know that it involves Shire’s filing numerous allegedly “sham” citizen petitions to FDA, and lawsuits against FDA, all to allegedly keep generic versions of the company’s Vancocin drug off the market. The FTC sued Shire in the U.S. District Court for the District of Delaware in 2017, alleging that the company’s actions were anticompetitive in violation of the FTC Act. As it does in most cases involving either antitrust violations or false or misleading advertising, the FTC brought suit pursuant to section 13(b) of the FTC Act (15 U.S.C.…

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