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April 15, 2021

Comments

Another question not asked here is why would attorneys counsel clients to enter into unusual agreements with competitors knowing that the FTC was engaged in a major legal effort attacking them?

Well, Paul, at that time the FTC's position had been universally rejected by the appellate courts. Perhaps makes it more understandable.

Of course, I'm not sure what the remedy is/was; the Opana ER patents had expired or Impax had a license to any surviving ones, and the only unlawful restraint was the $102 million. I suspect disgorgement to the government (how convenient) because Endo was also "guilty" of anticompetitive conduct.

Couldn't Endo's removal of Opana ER from the market have been motivated by concern about abuse of its product by consumers, at a time when the opioid crisis was in full swing (or at least concern about liability)? The discussion by the Fifth Circuit about "product hopping" seems to assume that this change was motivated only by manipulation of the market rather than any motivation on Endo's part to reduce possible liability or actual concern for consumers. I hope there was some evidence in the record to support this conclusion that Endo only had inappropriate reasons to change the product.

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