Solvay/K-Dur® Antitrust Cases: Supremes' "Body English" -- Speculation Edition

Well. . . the Bloomberg reporter present has it that the Supremes’ “Body English” suggested they might side with the FTC — and say that these arrangements are subject to close scrutiny under the Sherman and Clayton Acts.

The Bloomberg story suggests that some of the Justices’ questions hint that the brief by Representative Henry Waxman (D, CA) was well-received.

Rep. Waxman has been very-vocal, and public, in his opinion that Hatch-Waxman — a measure intended simply to reduce the cost of prescription medicines — has become a proxy-“highwayman” of sorts, allowing both the generic manufacturers and the branded innovators to get rich(er) by paying each other (depending on the circumstances) to delay competition from lower priced versions of the same compounds. And that might augur a win for the FTC here.

Having said all of that, though -- do recall that the Supremes appeared very skeptical of the ACA of 2010′s individual mandate.

And, yet it survived — as I long said it would, as a tax — to boot.

. . . .U.S. Supreme Court justices suggested they will open drugmakers to suits over so-called pay- for-delay agreements, hinting at a ruling that would rewrite the rules governing the release of generic medicines. . . .

. . .[T]he justices voiced skepticism about the accords, which the Federal Trade Commission says cost buyers as much as $3.5 billion a year. The antitrust agency says brand-name drug companies are paying generic rivals to forestall low-priced versions of popular treatments.

U.S. Supreme Court Justice Anthony Kennedy Chip Somodevilla/Getty Images U.S. Justice Anthony Kennedy, often the court’s swing vote, suggested that brand-name drugmakers at least shouldn’t be allowed to pay generic companies more than the generic companies could expect to get by winning patent litigation.

U.S. Justice Anthony Kennedy, often the court’s swing vote, suggested that brand-name drugmakers at least shouldn’t be allowed to pay generic companies more than the generic companies could expect to get by winning patent litigation. . . .

The accords benefit the companies “to the detriment of consumers,” Justice Elena Kagan said. . . .

So — who really knows? [But the Justices are (now, mostly) of an age where maybe -- just maybe -- their own impending mortality affects these health care related decisions. Consider that the ACA plainly benefits the elderly, among many others -- so too, would the FTC's position: making generics available earlier to the Medicare/Medicaid populations.] We will keep a weather-eye on it, for you.