Leibowitz wanted his economists to tell him what these “sweetheart deals,” as he calls them, cost the public. Their answer: delayed entry of generic drugs into the market adds about $3.5 billion to U.S. consumers’ health care tab per year. It was just the kind of fresh ammunition Leibowitz needed. After winning most of the early rounds in its decade-long campaign against the settlements, the FTC has been on the losing side lately. Three federal appellate courts have ruled that companies that make reverse payments don’t monopolize markets any more than their patents allow.
Despite the losses, the FTC’s 30-lawyer health care division still spends more time investigating and litigating what the agency has dubbed “pay-for-delay” deals than on any other issue. In its latest push, the FTC filed new lawsuits in 2008 and 2009 in a bid to block two large settlements. The hope is to finally win a favorable ruling.
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