A common but unfounded criticism of product liability lawyers is that they keep needed drugs off the market. Actually, it’s the drug companies who do so by engaging in pay-to-delay. Here’s how that works: Big pharmaceutical companies pay generic manufacturers not to sell generic versions of brand-name drugs. And unfortunately, this practice has now been blessed by the 2nd Circuit Court of Appeals:
The 2nd U.S. Circuit Court of Appeals has refused to reconsider en banc its holding that the antitrust laws are not violated when drug patent holders pay manufacturers of generic alternatives to keep competing products off the market.
The active members of the circuit issued a brief ruling Tuesday saying they had voted to deny rehearing en banc the case of Arkansas Carpenters Health and Welfare Fund v. Bayer AG, 05-2851-cv, in which a three-judge panel in April affirmed summary judgment for Bayer AG on a Sherman Act challenge concerning a so-called "pay-for-delay" agreement involving the antibiotic drug Cipro.