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California Supreme Court Decision in Cipro Highlights the Lack of Predictability in Antitrust Jurisprudence and Counseling

06/12/2015

On May 7, 2015, the Supreme Court of California issued an opinion in In re Cipro Cases I & II, a case centered on pay-to-delay settlements between drug makers and generic manufacturers. The Court found the existence of an issue of fact as to whether a settlement in which the branded manufacturer paid generic manufacturers to stay out of the market until the expiration of the patent on the branded drug violated California state antitrust law. At issue in the case was a 1997 settlement agreement between Bayer and Barr Pharmaceuticals, pursuant to which Bayer paid Barr approximately $400 million to delay marketing a generic version of Cipro – a drug produced by Bayer – until Bayer's patent on Cipro expired in late 2003. 

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