AbbVie Wins Preliminary Antitrust Ruling in AndroGel Litigation

AbbVie Inc., facing antitrust litigation over its alleged scheme to clear the market for its testosterone booster AndroGel, can relitigate key decisions against it by two courts in a prior case brought by the Federal Trade Commission, a federal judge in Philadelphia ruled.

Judge Harvey Bartle III, who presided over the earlier FTC action, said AbbVie can argue that its lawsuits against another drugmaker were a valid attempt to enforce its patent rights, rather than “sham litigation” aimed at bottlenecking makers of generic AndroGel behind automatic regulatory delays.

Although Bartle previously ruled that the patent suit was a sham, and the U.S. Court of Appeals for the Third Circuit said it agreed, AbbVie won the earlier case on other grounds when the appeals court held that the FTC wasn’t authorized to claw back overcharges, the judge found Wednesday.

The doctrine of “issue preclusion” bars relitigation only of court findings that were essential to the outcome of an earlier case, and “the final judgment after appeal in the underlying action did not depend on whether” AbbVie engaged in sham litigation, Bartle wrote.

“Those findings and legal conclusions are not binding in this action,” he said in a ruling for the U.S. District Court for the Eastern District of Pennsylvania.

The decision hands AbbVie an early win against claims by AmerisourceBergen Corp., Cardinal Health Inc., McKesson Corp., and 10 other drug distributors, which don’t face the technical legal hurdles that ultimately undid a $448 million judgment in the FTC’s favor.

The agency appealed that ruling to the U.S. Supreme Court, arguing that it was empowered to seek disgorgement of ill-gotten profits, but it dropped the suit when the justices held in a similar case that the FTC lacks that authority. Generic AndroGel is now on the market, the agency noted at the time.

It remains to be seen whether AbbVie can persuade Bartle its earlier patent suit was legitimate after he previously ruled against it on that very issue. But the company has the legal right to take a shot, the judge said.

The suit also involves claims against AbbVie’s AndroGel partner, Besins Healthcare Inc.

AbbVie is represented by Faegre Drinker Biddle & Reath LLP and Munger, Tolles & Olson LLP. Besins is represented by Foley & Lardner LLP.

The drug distributors are represented by Garwin Gerstein & Fisher LLP, Berger Montague PC, Smith Segura Raphael & Leger LLP, Faruqi & Faruqi LLP, Odom & Des Roches LLC, Heim, Payne & Chorush LLP, and Sperling & Slater PC.

The case is King Drug Co. of Florence Inc. v. Abbott Labs., E.D. Pa., No. 19-cv-3565, 3/23/22.