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California Top Court To Review Cipro's Pay-For-Delay Agreements - Antitrust

Publication Date: 
February 24, 2012
Source: 
Class Action Litigation Report (Bloomberg - BNA)
Author: 
Joyce Cutler

Professor Mark Lemley was quoted by Joyce Cutler of Bloomberg-BMA on the significance of the upcoming California Supreme Court decision on pay-for-delay agreements.

The California Supreme Court Feb. 15 agreed to review the pay-for-delay agreements over generic versions of Bayer Corp.’s Cipro (ciprofloxacin hydrochloride) that some plaintiffs' and consumer attorneys contend violate antitrust laws (In re Cipro Cases I & II, Cal., No. S198616, review granted 2/15/12 ).

Four of seven justices at their weekly meeting agreed to review the petition by a class of consumers and unions challenging what they contend is a $400 million payoff by Bayer to prevent competition for the world's best-selling antibiotic.

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Stanford Law School's Mark Lemley, who authored a letter on behalf of 78 law professors urging review, said the top court's weighing of the case is “potentially very significant.’’

“The U.S. Supreme Court has made it clear that state antitrust laws can go further than federal antitrust and California's law does so in certain respects. If reverse payments are declared illegal in California, it may affect the behavior of pharmaceutical companies nationwide, because they will face liability in California if they continue to enter into such agreements,’’ Lemley said in a Feb. 16 e-mail.