I've been covering rival bids for U.S. Supreme Court review of
pay-for-delay deals between brand-name and generic drug makers
as if the competition for the justices' attention was the
second-slowest horse race in recent American history. (The
first, of course, being the presidential election of 2000.)
We're finally in the home stretch -- and one of the horses in
the pay-for-delay race now seems to be running for a tie.
You probably remember the unusual circumstances of this
SCOTUS showdown. Back in August, Merck asked the court to grant
certiorari in its loss at the 3rd Circuit Court of Appeals,
which ruled that settlements in which a brand-name drug maker
pays a generic rival to drop its challenge to the brand-name
patent are presumptively illegal under federal antitrust laws.
Five weeks later, the Federal Trade Commission opted to seek Supreme Court review of its own 11th Circuit pay-for-delay loss
rather than join the Merck case as an amicus on the other side.
Then, earlier this month, parties on the winning side in the two
contrary appellate decisions weighed in. Calculating that they'd
rather see the high court review the 11th Circuit ruling that
pay-for-delay deals are fine as long as they don't exceed the
scope of the brand-name patent, two pharma companies in the FTC
case actually agreed that the court should grant cert in their
suit. Meanwhile, the antitrust plaintiffs who sued Merck and won
at the 3rd Circuit halfheartedly argued against the court
granting cert at all but said that if the justice decided to
hear the issue, they should take both cases.
On Tuesday, Merck submitted its reply brief to the court
and, lo and behold, the pharma company actually agreed with the
plaintiffs in its case. Merck's lawyers at Williams & Connolly,
led by counsel of record Kannon Shanmugam, continued to press
their argument that the 3rd Circuit decision, which was reached
on a full record in a case in which the FTC participated as an
amicus, is more appropriate for Supreme Court review than the
11th Circuit ruling, which came on a preliminary motion to
dismiss and included no private antitrust plaintiffs. "This case
already involves all of the interested constituents in
litigation concerning the validity of patent settlements between
drug manufacturers, including private plaintiffs as well as the
federal government," Merck said. "The government has already
signaled that it would participate as an amicus curiae in the
event that this petition is granted. And the court could allot
equal argument time to the private plaintiffs and the government
if it so desired -- as it has done with the parties' consent in
other cases in which the government's interest is particularly
acute."
But Merck, like the plaintiffs in its case, said that if the
justices really want to hear "the full range of legal arguments
and factual scenarios," they should grant cert in both the Merck
and FTC cases. That way, it argued, if some factual quirk or
unforeseen issue prevents the court from resolving the legality
of pay-for-delay deals via one of the cases, it can answer the
question via the other. That's the "more prudent course," Merck
wrote. "The cases complement each other in important respects,"
the company's brief said, noting that one is a private action
under the Sherman Act and the other is an enforcement action
under the FTC Act. Merck even suggested a formula for dividing
the oral argument to prevent repetition: It and the FTC should
each get 20 minutes, and the respondents on both sides should
get 20 minutes apiece.
Merck probably won't be the very last word on the competing
cert petitions. As of late Tuesday afternoon, the Solicitor
General's Office, which represents the FTC, hadn't filed its own
response brief, but it's pretty much a foregone conclusion that
the brief is coming. With the dueling cert petitions up for
conference as soon as Dec. 7, you can be sure that some Supreme
Court clerks will be spending the Thanksgiving break mulling
pay-for-delay deals.
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