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United States Third Circuit


King Drug Co. of Florence, Inc. v. SmithKline Beecham Corp., 14-1243

In a suit brought by direct purchasers of defendant's brand name drug Lamictal and the maker of its generic equivalent, for violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C. sections 1 and 2, the district court’s grant of a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a rule-of-reason claim under Sections 1 and 2 of the Sherman Act is reversed and remanded where the "no authorized generic" agreement (no-AG agreement) between the name brand and generic drug makers falls under the rule in FTC v. Actavis, 133 S. Ct. 2223 (2013), because it may represent an unusual, unexplained reverse transfer of considerable value from the patentee to the alleged infringer and may therefore give rise to the inference that it is a payment to eliminate the risk of competition.

Appellate Information

  • Decided 06/26/2015
  • Published 06/26/2015

Judges

  • Scirica

Court

  • United States Third Circuit

Counsel

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