The FTC Sues Endo and Impax Over Opana ER Agreement . . . Again

 By: Jake Walter-Warner, Amy N. Vegari, Ph.D. & William F. Cavanaugh, Jr.  (Antitrust Update)

Stop me if you’ve heard this one before: the FTC is suing pharmaceutical manufacturers Endo and Impax over an alleged “reverse payment” agreement to reduce competition in the market for Opana ER, an oxymorphone extended release product.  In fact, the FTC’s complaint follows quickly on the heels of the Commission’s decision that a 2010 agreement between the same manufacturers to settle Impax’s patent litigation against Endo for a $112 million payment constituted an illicit “reverse payment” that delayed the entry of Impax’s generic version of Opana ER.  (Click here for background on that decision.)  Oral argument on Impax’s appeal of the FTC’s decision happened six months ago; the Fifth Circuit’s decision will mark the first time a Circuit Court weighs in on the FTC’s interpretation of the Supreme Court’s 2013 decision in FTC v. Actavis.  (Click here for analysis of the oral argument).

Yesterday, the FTC sued Endo and Impax again.  This time, however, it was Impax that allegedly paid Endo to stay out of the market.  In May 2016, Endo sued Impax for failing to abide by the terms of the 2010 settlement agreement between Endo and Impax, and about a year later, in August 2017, the parties settled that breach-of-contract case.  All this occurred while the FTC’s enforcement action concerning that 2010 settlement was ongoing…

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