In 2013, the U.S. Supreme Court ruled that a brand-name drug company’s payment to a generic company not to enter the market could violate the antitrust laws. Since that time, the lower courts have been busy figuring out what the Court meant. Rutgers Law–Camden Distinguished Professor Michael Carrier has also been busy talking with numerous reporters covering the recent antitrust cases worth billions of dollars to consumers.
“Several courts have erred in applying the decision,” he says. “They have been too formalistic, holding that brand firms can’t pay cash to generics, but can compensate them in other ways (like with side business deals or promises not to bring their own generics to the market). These rulings, if upheld, would undercut the Supreme Court’s decision. I have filed friend-of-the-court briefs on behalf of dozens of professors to overturn the decisions.”
In the first recent case (decided May 7), the California Supreme Court cited Carrier’s work in finding that a $398 million payment to delay a generic version of antibiotic Cipro could violate the antitrust laws. It used his work in discussing “the pharmaceutical regulatory regime, a potential cartel between brands and generics, brand-generic business deals, and the danger of payments in delaying generic entry," notes the author of Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law.
The outcome also was consistent with a brief he submitted on behalf of 49 professors in the case. Several media outlets quoted Carrier, including The Wall Street Journal, Reuters, and The Boston Globe.
In the second case (opinion released May 28), the Second Circuit cited the Rutgers Law–Camden professor's work in affirming an injunction requiring Actavis to keep $1.5-billion Alzheimer’s drug Namenda IR on the market. The ruling is estimated to save Medicare, third-party payors, and consumers more than $7 billion.
On this case, Carrier was quoted in Reuters and The Wall Street Journal.
Finally, also on May 28, the Federal Trade Commission (FTC) announced a $1.2 billion settlement with Cephalon (now Teva) for delaying a generic version of sleep-disorder drug Provigil. In its order, the FTC cited an article Carrier published in 2009 in the Rutgers Law Journal. He was also quoted about the settlement's implications in The New York Times, The Wall Street Journal, and Reuters.
How will consumers fare in this legal fallout? According to Carrier, consumers always can benefit from lower health-care costs. “Patients sometimes don’t take medicines or split pills in half because of high drug costs. Generic competition promises to improve health care and could save lives.”
