CVS and Rite Aid, riding on FTC coattails, sue AbbVie for 'sham' AndroGel patent claims

After a judge ordered AbbVie to pay the largest monetary disgorgement ever litigated in a Federal Trade Commission antitrust case—a whopping $448 million—CVS and Rite Aid have sued the pharma citing similar claims.

The pharmacy chains, in a lawsuit filed last week, allege AbbVie and its partners used "sham" patent litigation against Teva Pharmaceutical Industries and Perrigo to monopolize the topical testosterone replacement market. 

If not for the frivolous lawsuits, the plaintiffs say they and other AndroGel buyers could have stocked cheap copycat versions of the blockbuster testosterone therapy in June 2013 rather than in December 2014. The year-plus delay cost the pharmacies hundreds of millions of dollars, they argue in the filing in Pennsylvania federal court. 

An AbbVie spokesperson didn’t immediately respond to a request for comment. 

The case follows a court-ordered $448 million payment in the FTC case. In July, U.S. District Judge Harvey Bartle in Pennsylvania ordered AbbVie and its partner Besins Healthcare to fork over the cash, saying baseless patent litigation delayed Perrigo's generic. At the time, an AbbVie spokesperson said the company was "disappointed" and would appeal.  

For his part, FTC Chairman Joe Simons said the "decision is a double victory, both for patients who rely on AndroGel and for competition more broadly." The agency originally sought $1.35 billion, but the award still represented the largest-ever disgorgement in an FTC antitrust lawsuit. 

As the antitrust claims play out, AbbVie faces thousands of claims it aggressively marketed AndroGel despite the drug's potential to trigger serious cardiovascular complications. 

AbbVie suffered early trial losses that it later successfully appealed. In the first case to go to trial last July, jurors ordered the drugmaker to pay $150 million. The verdict didn't stand up to scrutiny, however, and a judge overturned the result. After a retrial, jurors ordered the company to pay $3 million.  

Since that verdict last summer, the company has prevailed in one case at trial and in another on appeal.