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1
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COMPLAINT
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EXTRACTED KEY WORDS
PROFARMACO DEFENDANTS UNITED STATES GYMA FTC ACT COMPETITION LORAZEPAM API CAMBREX GENERIC LORAZEPAM TABLETS FEDERAL TRADE COMMISSION LORAZEPAM TABLETS CLORAZEPATE TABLETS VIOLATION TABLETS MARKET UNFAIR METHODS AFFECTING COMMERCE EXCLUSIVE LICENSING AGREEMENT GENERIC DRUG EQUITABLE RELIEF COMPETITORS PENNSYLVANIA AVENUE MANUFACTURERS MYLAN LABORATORIES SST WASHINGTON EXCLUSIVE LICENSE MONOPOLIZE SIGNIFICANTLY RAISE PRICES CONSPIRACY |
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF THE DISTRICT OF COLUMBIA
FEDERAL TRADE COMMISSION,
600 Pennsylvania Avenue, N.W. Washington, D.C. 20580
Plaintiff,
v.
MYLAN LABORATORIES, INC.,
130 Seventh Street 1030 Century Building Pittsburgh, Pennsylvania
15222
CAMBREX CORPORATION,
One Meadowlands Plaza East Rutherford, New Jersey 07073
PROFARMACO S.R.L.
Via Cucchiari 17 Milano, Italy
GYMA LABORATORIES OF AMERICA, INC.,
135 Cantiagua Rock Road Westbury, New York 11590
Defendants.
FILED UNDER SEAL
CIVIL NO.
COMPLAINT FOR INJUNCTIVE AND OTHER EQUITABLE RELIEF
Plaintiff the Federal Trade Commission (the "Commission") alleges as
follows:
1. The Commission brings this action under Section 13(b) of the
Federal Trade Commission Act (the "FTC Act"), 15 U.S.C. § 53(b), to
secure a permanent injunction and other equitable relief against
defendants Mylan Laboratories, Inc. ("Mylan"), Cambrex Corporation
("Cambrex"), Profarmaco S.r.l. ("Profarmaco"), and Gyma Laboratories
of America, Inc. ("Gyma") (collectively "defendants") for their unfair
methods of competition in or affecting commerce in violation of
Section 5(a) of the FTC Act, 15 U.S.C. § 45(a).
JURISDICTION AND VENUE
2. This Court has subject matter jurisdiction over this action
pursuant to 15 U.S.C. §§ 45 (a) and 53(b), and 28 U.S.C. §§ 1331,
1337(a), and 1345.
3. This Court has personal jurisdiction over each of the defendants
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2
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AMENDED COMPLAINT
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EXTRACTED KEY WORDS
PROFARMACO DEFENDANTS LORAZEPAM API UNITED STATES FTC ACT COMPETITION GYMA CAMBREX CLORAZEPATE API GENERIC LORAZEPAM TABLETS LORAZEPAM TABLETS FEDERAL TRADE COMMISSION VIOLATION TABLETS MARKET UNFAIR METHODS AFFECTING COMMERCE EXCLUSIVE LICENSING AGREEMENT GENERIC DRUG COMPETITORS MYLAN LABORATORIES EQUITABLE RELIEF MANUFACTURERS PENNSYLVANIA AVENUE SST RAISE PRICES EXCLUSIVE LICENSES WASHINGTON JURISDICTION MONOPOLIZE |
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF THE DISTRICT OF COLUMBIA
FEDERAL TRADE COMMISSION,
600 Pennsylvania Avenue, N.W.
Washington, D.C. 20580
Plaintiff,
v.
MYLAN LABORATORIES, INC.,
130 Seventh Street
1030 Century Building
Pittsburgh, Pennsylvania 15222
CAMBREX CORPORATION,
One Meadowlands Plaza
East Rutherford, New Jersey 07073
PROFARMACO S.R.L.,
Via Cucchiari 17
Milano, Italy
GYMA LABORATORIES OF AMERICA, INC.,
135 Cantiagua Rock Road
Westbury, New York 11590
Defendants.
JUDGE: Thomas F. Hogan
CASE NUMBER: 1:98CV03114
AMENDED COMPLAINT FOR INJUNCTIVE
AND OTHER EQUITABLE RELIEF
Plaintiff the Federal Trade Commission (the "Commission") alleges as
follows:
1. The Commission brings this action under Section 13(b) of the
Federal Trade Commission Act (the "FTC Act"), 15 U.S.C. § 53(b), to
secure a permanent injunction and other equitable relief against
defendants Mylan Laboratories, Inc. ("Mylan"), Cambrex Corporation
("Cambrex"), Profarmaco S.r.l. ("Profarmaco"), and Gyma Laboratories
of America, Inc. ("Gyma") (collectively "defendants") for their unfair
methods of competition in or affecting commerce in violation of
Section 5(a) of the FTC Act, 15 U.S.C. § 45(a).
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3
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PITOFSKY STATEMENT
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EXTRACTED KEY WORDS
COMMISSION COURT INDIRECT PURCHASERS DEFENDANTS ILLINOIS BRICK SETTLEMENT MYLAN ANTITRUST DAMAGES CONSUMERS AMOUNT RECOVER OVERCHARGE DISTRICT COURT ANTITRUST LAWS PRIVATE ACT SUPREME STATUTES DIRECT PURCHASERS LORAZEPAM CLORAZEPATE ENFORCEMENT PAID CLAYTON ACT COMPLAINT MONEY PRICE POLICY |
_________________________________________________________________
Statement of Chairman Robert Pitofsky and Commissioners Sheila F.
Anthony and Mozelle W. Thompson
Federal Trade Commission v. Mylan Laboratories, Inc., et al.
FTC File No. X990015
_________________________________________________________________
The Commission has voted to accept a consent settlement of its action
against Mylan Laboratories, Inc. ("Mylan"), Cambrex Corporation
("Cambrex"), Profarmaco S.R.L. ("Profarmaco"), and Gyma Laboratories
of America, Inc. ("Gyma"). The Commission's complaint alleged that
Mylan, a large generic drug manufacturer, conspired with the other
defendants to enable Mylan to monopolize the U.S. market for two
generic drugs, lorazepam (which is used to treat anxiety, tension,
agitation, and insomnia), and clorazepate (which is used to treat
anxiety and hypertension). After the district court in this matter
affirmed the Commission's authority to seek disgorgement in a
competition case under Section 13(b) of the FTC Act, F.T.C. v. Mylan
Labs, et al., 62 F. Supp. 2d 25, 37 (D.D.C. 1999), defendants agreed
to pay $100 million to settle the Commission's suit. Under the consent
settlement, defendants will pay the money into an escrow fund which
will be distributed to consumers and state agencies that overpaid for
lorazepam and clorazepate. Commissioner Leary concurs in the
Commission's decision to settle this case, but dissents in part from
the financial aspects of the settlement. Commissioner Leary also
expresses concern that the court's broad ruling allowing the
Commission to obtain disgorgement in this antitrust case and the
Commission's use of the money obtained to settle its claim to
compensate consumers may create undesirable precedent for antitrust
enforcement. For the reasons set forth below, we disagree.
The complaint alleged that Mylan entered into long-term exclusive
licenses with the other defendants to supply Mylan alone with the
active ingredients necessary to produce lorazepam and clorazepate.
Thus, competitors of Mylan were left with insufficient sources of
supply of the essential raw materials necessary to continue
manufacturing their competing generic lorazepam and clorazepate
products. As a result, the complaint alleged, Mylan succeeded in
monopolizing the markets for these products. Mylan thereupon raised
the price of clorazepate by as much as 3,200 percent and raised the
price of lorazepam by as much as 2,600 percent, depending on the
bottle size and strength. For example, Mylan raised the price of a 500
count bottle of 7.5 mg clorazepate tablets from $11.36 to $377.00, and
raised the price of a 500 count bottle of 1 mg lorazepam tablets from
$7.30 to $191.00. The complaint alleged that the ultimate consumers of
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4
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MEMORANDUM OPINION
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EXTRACTED KEY WORDS
DEFENDANTS LAW RELIEF ANTITRUST ACT FTC COMPLAINT MYLAN MOTION DISMISS INJUNCTION PLAINTIFFS INDIRECT PURCHASERS VIOLATION RESTITUTION JURISDICTION FEDERAL TRADE COMMISSION DISGORGEMENT API CONNECTICUT DIRECT PURCHASERS GENERIC DRUG EQUITABLE RELIEF MATTER JURISDICTION PROFARMACO DIRECT PURCHASES PERMANENT INJUNCTION DRUG MANUFACTURERS UMBRELLA THEORY |
. .
IN TH.E UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
1
FEDERAL TRADE COMMISSION, 1
>
Plaintiff, 1
>
- V. ) Cv. 98-3114 (TFH)
1
MYLAN LABORATORIES, INC., >
CAMEW$X CORP., )
PROFARMACO S.R.L., and 1
GYMA LABORATORIES )
OF AM3ERICA, INC., )
)
Defendants.
>
- ) -
)
THE STATE OF CONNECTICUT, et al., >
>
Plaintiffs, )
>
V. ) Cv. 98-3115 (TFH)
>
MYLAN LABORATORIES, INC., . 1
CAMBREX CORP., 1
PROFAFWACO S.R.L., )
GYMA LABORATORIES OF >
AMERICA, INC., and SST CORP., >
Defendants. 1
MEMORANDUM OPINION
The above-captioned cases are actions by the Federal Trade Commission (FTC)
thirty-two States against Mylan Laboratories and other drug companies for various
state law antitrust violations. Pending before the Court are defendants' motions
,
complaints in both cases. There are three motions to dismiss pending in FTC v.
.
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5
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LEARY STATEMENT
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EXTRACTED KEY WORDS
FEDERAL TRADE COMMISSION FTC SETTLEMENT ILLINOIS BRICK INDIRECT PURCHASERS COURT RELIEF ANTITRUST VIOLATION FTC ACT MYLAN DEFENDANTS DAMAGES PARTIES REASON LAW DIRECT PURCHASERS OVERCHARGE SPECIAL PROCEDURAL SETTING ARC HANOVER SHOE CLAYTON ACT RECOVERIES DISGORGEMENT CONCERNED PARTIES RESOLVE DIFFERENCES UNDERLYING INJUNCTIVE RELIEF INJUNCTIVE RELIEF BARS DEFENDANTS ANTITRUST ENFORCEMENT |
_________________________________________________________________
Statement of Commissioner Thomas B. Leary, Dissenting in Part and
Concurring in Part
Federal Trade Commission v. Mylan Pharmaceuticals, Inc., et al.
FTC File No. X990015
_________________________________________________________________
The Commission's complaint in this particular case pleaded a
particularly egregious antitrust violation. The consent settlement has
been negotiated in the context of these special facts and a special
procedural setting. I believe that the desire of concerned parties to
resolve differences should ordinarily be given great weight, and I
have no reason to believe that the ultimate resolution of this
particular case is unfair. I concur without reservation in the
underlying injunctive relief that bars defendants from entering into
exclusive agreements similar to those that triggered this lawsuit.
However, I am compelled to dissent in part from the financial aspects
of the settlement because I believe they may create an undesirable
precedent for antitrust enforcement at both the state and the federal
levels.
1.
First, I am concerned by the District Court's finding that the
Commission may properly seek a permanent injunction, including
ancillary monetary relief in an antitrust case, under Section 13(b) of
the Federal Trade Commission Act for violations of "any provision of
law" enforced by the Commission. The present members of the Commission
may only intend to seek this extreme relief in the most extraordinary
cases, but the litigation has resulted in a ruling that may be
employed by successors less scrupulous. Second, there is another
ruling in this case that could be used to justify applications for the
same kind of relief by individual states with statutes "that
explicitly reference or are modeled after, the FTC Act, or that
otherwise permit the state to pursue equitable remedies." This
magnifies the potential problem. Third, and perhaps most important,
these rulings could seriously undercut federal policy against multiple
claims by direct and indirect purchasers.
The Commissioners who voted out the complaint in this case had good
reason, in my view, to regard the respondents' conduct as a clear cut
antitrust violation that resulted in substantial consumer harm. A
Section 13(b) remedy may have appeared to be the most likely way to
avoid a manifestly unjust result. The trouble is that this seemingly
expedient solution may have a ripple effect far beyond the matter at
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6
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ORDER AND STIPULATED PERM INJUNCTION
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EXTRACTED KEY WORDS
API COMMISSION DEFENDANTS DMF MYLAN ACT COURT DRUG PROFARMACO GYMA API SUPPLIER EXCLUSIVITY DISTRICT FEDERAL TRADE COMMISSION CAMBREX FTC ACT AFFECTING COMMERCE REFERENCING FINISHED DRUG DRUG PRODUCT LABORATORIES PERMANENT INJUNCTION PARTY SALE SETTLEMENT MONOPOLIZE LORAZEPAM CLORAZEPATE ENTERING |
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
FEDERAL TRADE COMMISSION, Plaintiff
v.
MYLAN LABORATORIES, INC., CAMBREX CORPORATION, PROFARMACO S.R.L., and
GYMA LABORATORIES OF AMERICA, INC., Defendants
Civil 1:98CV03114 (TFH)
ORDER AND STIPULATED PERMANENT INJUNCTION
Whereas Plaintiff Federal Trade Commission ("Commission") has filed
its amended Complaint against Defendants Mylan Laboratories, Inc.,
Cambrex Corporation, Profarmaco S.r.l., and Gyma Laboratories of
America, Inc., pursuant to Section 13(b) of the Federal Trade
Commission Act ("FTC Act"), 15 U.S.C. § 53(b), seeking injunctive and
other equitable relief for violations of Section 5 of the FTC Act, 15
U.S.C. § 45; whereas the Commission and Defendants have stipulated and
agreed to entry by the Court, without further notice, of the following
findings and permanent injunction; whereas this Order is entered for
settlement purposes only and does not constitute any evidence against
or an admission of liability by the Defendants; and whereas the Court,
being advised in the premises, finds:
1. The Commission brings this action under Sections 5 and 13(b)
of the FTC Act, 15 U.S.C. §§ 45 and 53(b). In its Amended
Complaint (dated February 8, 1999), the Commission seeks
permanent injunctive and other equitable relief, including
disgorgement. The Commission alleges that the Defendants
conspired to monopolize and entered into agreements that
unreasonably restrained trade in the lorazepam and clorazepate
tablet and active pharmaceutical ingredient markets. The
Commission further alleges that Mylan Laboratories, Inc.,
monopolized and attempted to monopolize the markets for
lorazepam and clorazepate tablets. This Court has held that,
pursuant to Section 13(b), the Commission has authority to seek
the relief it has requested.
2. This Court has jurisdiction over the parties and the subject
matter of this action. Venue is proper in the District of the
District of Columbia. This Court has held that the Complaint
states a claim upon which relief may be granted against
Defendants under Sections 5 and 13(b) of the FTC Act, 15 U.S.C.
§§ 45, 53(b).
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