Mintz Advisory: Hard Switch Between Drugs Likely Violates the Sherman Act

By Samantha P. Kingsbury

Last week, Mintz attorneys Bruce Sokler and Timothy Slattery published an advisory regarding the Second Circuit's highly anticipated decision in State of New York v. Actavis PLC.

In this case, the Second Circuit upheld a preliminary injunction against Actavis PLC and its wholly owned subsidiary Forest Laboratories, LLC and found that Actavis's "hard switch" strategy to launch an extended-release version of an Alzheimer's therapy and delist the immediate-release version would likely violate Section 2 of the Sherman Act.  The court reasoned that because generic competition depends so much on state drug substitution laws that allow pharmacists to substitute generics for brand-name products, the combination of launch and product removal was an anticompetitive "product hop" that would likely impede generic competition of the original immediate-release version of the drug.

You can read the full advisory here.

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Samantha P. Kingsbury

Of Counsel

Samantha advises clients on regulatory and enforcement matters. She has deep experience handling violations of the federal ant-kickback statute and FCA investigations for clinical laboratories and hospitals.