State of New York v. Actavis plc and Forest Laboratories, LLC

Case Updates

The Second Circuit affirmed the injunction of the district court, concluding that the New York Attorney General was likely to succeed on his arguments that the decision to stop making the twice-daily version and switch customers to the once-daily version constituted a violation of the federal antitrust laws.

In its brief, the Chamber asked the Second Circuit to reverse a district court’s decision and vacate an injunction which requires a pharmaceutical company to manufacture and distribute a certain drug for which it had planned to curtail production.

The brief argues that the federal court’s injunction on Forest Laboratories and its parent company Actavis to make and distribute a specific pharmaceutical drug (Alzheimer's tablet in this case) is unprecedented, and is a clear example of a federal court over-extending its limited powers. The court pushed the bounds even further by ordering the drug to stay on the market for at least thirty days past the market entry of competing generic drugs. The brief contends that the court seized control of Forest’s day-to-day operations, the ordered production, and distribution of the Alzheimer’s tablet is not only unprecedented, it directly benefits Forest’s competitors, hence disrupting America’s free-market economy. The brief warns that if left uncorrected, the decision would set a dangerous precedent that could allow any court to conscript a private business into federal control.

Thomas R. McCarthy and J. Michael Connolly of Consovoy McCarthy PLLC represented the U.S. Chamber as co-counsel to the U.S. Chamber Litigation Center.