Second Circuit Holds "Hard Switch" Violates Sherman Act
On May 22, 2015, in a much-watched case, the Second Circuit upheld a preliminary injunction against Actavis PLC and its wholly owned subsidiary, Forest Laboratories, LLC (collectively “Actavis” or “Forest”), finding that Actavis’s “hard switch” strategy to launch an extended-release version of its blockbuster Alzheimer’s therapy and delist the immediate-release version would likely violate Section 2 of the Sherman Act. The Court held that because generic competition depends heavily on state drug substitution laws that allow pharmacists to substitute generics for branded products, the combination of launch and product removal constituted an anticompetitive “product hop” that would likely impede generic competition on the merits for the original immediate-release version of the drug. For more details on the decision, take a look here, where we share analysis on the opinion.