Consumer Groups, Government Entities File Briefs in AbbVie Antitrust Litigation Appeal

Two amici curiae have filed a brief in support of the plaintiff-appellants in a case alleging that defendant AbbVie Inc.’s anticompetitive conduct delayed the entry of generic pharmaceuticals to market, forcing consumers and health systems to pay higher prices for AbbVie’s Humira, a biologic drug used to treat rheumatoid arthritis. The case is on appeal from a June order dismissing the plaintiffs’ complaint by Judge Manish S. Shah of the Northern District of Illinois.

The amici are Consumer Action and U.S. Public Interest Research Group (U.S. PIRG). Consumer Action is a nonprofit consumer rights organization that is “particularly concerned with ever-growing healthcare costs including rising costs within the pharmaceutical industry and has been an (a)mici in pay for delay cases.” U.S. PIRG is a nonprofit public interest advocacy organization “working to win concrete results on real problems that affect millions of lives, and standing up for the public against powerful interests when they push the other way.”

The consumer groups are concerned by what their brief describes as a “growing number of anti-biosimilar strategies employed in the pharmaceutical industry that increase costs to consumers. Generic and biosimilar entry increases competition and greatly decreases the cost of prescription drug medication.” In the case of AbbVie’s Humira, reportedly the best-selling drug in the world, the amici attribute the drug’s commercial success to AbbVie’s so-called pay-for-delay and reverse settlement tactics.

These supposedly anticompetitive maneuvers allowed the pharmaceutical manufacturer to “artificially extend the life of its Humira monopoly and to foreclose the U.S. market to biosimilar drugs which are more affordable to consumers and payors.” Specifically, the amici contend, AbbVie did so through its “strategic accumulation of patents that resulted in costly patent litigation and reverse payment settlements effectively blocking (generic competitors) from the U.S. market.”

They argued that the trial court’s decision will “harm competition and lead to higher prescription drug prices.” As proof, the amici pointed to the stark price differential between Humira in Europe and United States, writing that “patent thickets and pay for delay strategies harm payors and patients who are effectively forced to use more expensive biologics when more affordable medicines should be available — indeed are available for payors and patients that happen to be on the winning land-mass of AbbVie’s devil bargain.”

In addition, the amici argued that if the 7th Circuit does not overturn the ruling, other pharmaceutical companies will be incentivized “not to innovate but rather to focus on tweaking their patent estates to extend the life of their monopolies and then suing rivals for alleged patent infringement and seeking reverse payments.” In turn, Consumer Action and U.S. PIRG requested that the appellate panel reverse the district court’s ruling and remand for further consideration.

In addition, over a dozen states have filed a brief in support of the plaintiff-appellants, arguing, among other contentions, that the decision was wrongly decided because the trial court relied on flawed analyses. The Federal Trade Commission (FTC) also filed a brief, on behalf of no party. It reportedly submitted the brief to “assist the Court in evaluating the district court’s decision to dismiss the reverse-payment counts.”

Consumer Action and U.S. PIRG are represented by StephanZouras, LLP, Law Offices of David Balto, and Doyle Barlow & Mazard.