In In Re: AndroGel Antitrust Litigation (No. II), Northern District of Georgia Judge Thomas W. Thrash Jr. announced that, if the Eleventh Circuit remands the case, he would overturn the dismissal of the plaintiffs’ pay-for-delay claims given the U.S. Supreme Court’s recent decision. That case involved a Federal Trade Commission prosecution of the same settlement agreements before the court in this class action – a deal between Solvay Pharmaceuticals, the owner of the AndroGel brand, and potential generic competitors. The high court reinstated the FTC’s claim on the ground that this type of settlement – in which a patent holder pays money to an alleged infringer in exchange for agreeing not to challenge the patent’s validity – can violate the antitrust laws.
In this case, the trial court had dismissed private antitrust claims attacking the same settlement agreements. The case is currently pending on appeal to the Eleventh Circuit. The defendants oppose remand despite the Supreme Court decision in the FTC case because the private case involves a separate sham litigation claim. The trial court, however, maintained that the circuit court’s taking up that issue now would simply delay the inevitable. “The defendants say,” Judge Thrash commented, “that a post-judgment change in the law is not sufficiently extraordinary to justify Rule 60(b) relief. Well, it seems pretty extraordinary to me because the change in the law resulted from reversal of a judgment I entered in this case. That does not happen every day.”