FTC drops antitrust case against AbbVie, but still decries the company's 'ill-gotten gains'

Appealing a $448 million judgement in an antitrust case has ultimately paid off for AbbVie.

On Friday, the U.S. Federal Trade Commission withdrew its complaint that AbbVie (then under the umbrella of Abbott Laboratories) used sham litigation in 2011 to illegally block generic competition for its testosterone drug AndroGel. While the agency still thinks AbbVie engaged in "anticompetitive conduct," an official said current laws don't support the agency's efforts to recoup money for consumers.

“The commission is deeply disappointed that we cannot compensate consumers who were the victims of AbbVie’s and Besin’s anticompetitive conduct, despite proving that the companies engaged in illegal sham litigation,” Holly Vedova, the acting director of the Bureau of Competition, said in a statement. “The FTC would have been able to return almost a half billion dollars directly to AndroGel consumers. Instead, AbbVie and Besins can retain all of the ill-gotten gains resulting from their illegal anticompetitive conduct.”  

The FTC's decision comes after the U.S. Supreme Court rejected AbbVie’s appeal to review a lower court's ruling that it violated antitrust laws by filing a sham patent lawsuit against Perrigo. 

In that decision, the Supreme Court kept intact the ruling of a Philadelphia-based U.S. appeals court which found that AbbVie was guilty, but that it didn't have to pay a $448 million judgment. The FTC is not entitled to disgorgement of profits, the Philadelphia court found.

Now, with no opportunity to recover money for consumers, the FTC opted to drop the case against AbbVie and its AndroGel partner Besins Healthcare. The result points to the need to restore Section 13(b) of the FTC Act, which gave the agency the authority to seek compensation for consumers in competition cases, Vedoza said.

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The FTC has routinely taken on pharma companies over "sham" patent litigation, which it says they use to delay would-be generic players by tying them up in court.

The AbbVie case stems back to 2014, when the FTC sued AbbVie and Besins for allegedly filing baseless patent infringement lawsuits against generic competitors Perrigo and Teva. The suit also charged the companies with a pay-for-delay scheme.

RELATED: AbbVie scores one against FTC in pay-for-delay AndroGel suit

Aside from the patent litigation, AbbVie has faced years of litigation over its aggressive marketing of the drug and over its cardiovascular risks. Sales of the drug reached $1.1 billion in 2012 before plummeting with news of the risks.