New York Attorney General's Office Wins National Award For Legal Excellence

Non-Partisan National Association Of Attorneys General Gives A.G. Schneiderman's Office Award For Best Legal Brief Filed By A State In The Supreme Court

Brief Argued That ‘Pay-For-Delay’ Settlements Of Drug Patent Litigation Must Be Subject To Antitrust Scrutiny

WASHINGTON – In recognition of legal excellence in advocacy before the U.S. Supreme Court, the National Association of Attorneys General (NAAG) on Wednesday presented the New York Attorney General’s Office with its “Best Brief Award” for the current Supreme Court term. The non-partisan organization presented this award for the Attorney General’s friend-of-the-court brief in the case of FTC v. Actavis.

The brief argued that the Supreme Court should allow antitrust enforcers to bring suit to challenge, as potential antitrust violations, pay-for-delay settlements of drug patent litigation—settlements in which brand-name drug manufacturers pay their generic competitors to delay the availability of cheaper generic drugs. The Supreme Court issued its decision in Actavis on Monday, holding that pay-for-delay settlements may be challenged as potential violations of antitrust law.

The brief was filed on behalf of a bipartisan coalition of 36 states, plus the District of Columbia and the Commonwealth of Puerto Rico. It was chosen for the award by a panel of experienced private-sector Supreme Court litigators.

“One of my top priorities is making the Office of Attorney General the best public law firm in the nation. Our attorneys work hard every day to make that vision a reality, and this award recognizes the extraordinary work they do,” said Attorney General Eric T. Schneiderman. “This also confirms the talent of our top-notch appellate lawyers - they have made New York State proud.”

The settlement agreements at issue in Actavis were between the pharmaceutical company that manufactures AndroGel, a synthetic testosterone product, and competitors who sought to market generic versions of the drug. The FTC filed a complaint alleging that the parties had agreed to delay generic competition and share monopoly profits at the expense of consumers. While the Eleventh Circuit held that the agreement was essentially immune from antitrust scrutiny because it was part of a litigation settlement, the Supreme Court held that antitrust scrutiny applies, forcing the drug companies to justify the settlement agreement in terms of its impact on consumer choice and drug prices.

“It serves neither the public interest nor the fundamental goals of antitrust law and patent law when brand-name drug manufacturers are allowed to immunize their patents from scrutiny by buying off their potential generic competitors with a share of their monopoly profits,” the brief argued. It explained that drug companies in recent years have increasingly used pay-for-delay settlements have as a device for “maintaining artificially high drug prices and restricting drug purchasers’ choices.” Those settlements must be scrutinized carefully under traditional antitrust principles, the brief argued, because they “carry an overwhelming tendency to perpetuate monopolies improperly, beyond any point justified by the strength of the patents held by the brand-name manufacturers.”

The other states and territories joining the brief, in addition to New York, were Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington, and Wyoming, the District of Columbia, and the Commonwealth of Puerto Rico.

NAAG is a non-partisan organization founded in 1907 to foster interstate cooperation on legal and law enforcement issues, conduct policy research and analysis of issues, and facilitate communication between the states' chief legal officers and all levels of government. NAAG's “best brief” award is based on the decision of a panel consisting of appellate experts from major private law firms throughout the United States.

The award was presented on June 19 in Boston to Solicitor General Barbara Underwood, with Deputy Solicitor General Richard Dearing, Assistant Solicitor Andrew Ayers and Assistant Attorney General Elinor Hoffmann.

A copy of the Attorney General’s award-winning brief is available here.