ANALYSIS: AbbVie Case Could Leave FTC Toothless in Court

On Jan. 15, the U.S. Court of Appeals for the Third Circuit will hear oral argument in a case that could force the FTC to completely rethink its enforcement approach.

The court will hear argument in FTC v. AbbVie Inc. on the scope of the FTC’s powers under section 13(b) of the FTC Act (15 U.S.C. 53(b)) to go after disgorgement of profits from an unfair method of competition.

Appellants AbbVie and Besins Healthcare Inc. contend that disgorgement is a penalty, not an equitable remedy available under 13(b). They have asked the court to push the FTC out of the ...