This is an interesting case that the Supreme Court will hear today. Does a branded drug maker, faced with a potential competitor who makes generic drugs, act illegally if it pays money to the competitor in a deal that postpones the sale of the generic drug for a period of years?
The FTC says it is unlawful, while the generic and branded drug makers disagree.
So why does this matter? Everyone knows that generic drugs are cheaper than branded drugs. As the NY Times reported, “73 percent of consumer spending” is spent on branded drugs. When a generic drug, which costs about 15% of the branded drug cost, enters the market, branded drug makers lose about 90% of their profits.
In FTC v. Actavis, Inc., the 11th Circuit Court of Appeals held companies holding the patent to the branded drug could make those payments to the generic drug maker. In this case, the generic drug maker challenged the patent of the branded drug maker in court. Both drug makers came to a settlement, whereby the generic would get some payment as long as the branded drug maker could continue to sell its branded drug exclusively for a time period.
In sum, the 11th Circuit reasoned, “absent sham litigation or fraud” when the anticompetitive effects of a patent fell within that scope, there is no antitrust claim. Further, since there was a settlement, the 11th Circuit stated that it would be hard to predict what the effect would have been. And since the settlement was with one generic drug maker, this did not impact other generic drug makers from selling the generic version of the drug.
Now, the Supreme Court has to decide on this issue.
via Generic-Brand Name Drug Case Goes to Supreme Court – NYTimes.com.
FTC v. PCCARE Inc., 12 civ-7189 (S.D.N.Y. Mar. 3, 2013) is a very strange case because it shows how service of process might be altered and in what circumstances. In this case, the FTC wanted to be able to serve documents other than the Summons and Complaint via Facebook or e-mail. The Southern District of New York granted this request.
This is a very strange case. Generally, the Hague Service Convention has guidelines detailing how abroad defendants may be served. The Hague Service Convention doesn’t expressly authorize service on foreign defendants by email or social media accounts.
So why could you serve documents a foreign defendant over Facebook?
The court explained that “A court in this district has held that the Hague Service Convention only applies to the initial service of process, not subsequent documents.” See SEC v. Credit Bankcorp., Ltd., 2001 WL 666158, *4 (S.D.N.Y. Feb 14, 2011). In addition the court relied on Federal Rule of Civil Procedure 4(f)(3), whereby it stated,
a Court may fashion means of service on an individual in a foreign county, so long as the ordered means of service (1) is not prohibited by international agreement; and (2) comports with constitutional notions of due process.” SEC c. Anticevix, 2009 WL 361739, at *3 (S.D.N.Y. Fec. 13, 2009).
The court reasoned that federal courts need to keep an open mind about technology.
The court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means. But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.
via FTC can serve foreign defendants via Facebook, federal judge rules – ABA Journal.