And so, the interesting question (apparently held in confidence by the settlement agreement) is whether this is a so-called "pay for delay" deal.
Unless this deal turns out to be material -- in the SEC's parlance -- to Merck (or BMS) -- in each case, not likely to be true -- we are not likely to ever know whether Aurobindo has agreed to delay (in return for a large payment from BMS/Merck) its launch of a generic efavirenz -- into or beyond 2017. At least not until that 2017 date comes and goes.
And so -- my object lesson here -- to most classically-schooled antitrust lawyers, that sort of an arrangement smells quite a bit like some Sherman Act §1, and Clayton Act §7 problems.
And as we have repeatedly noted, the feds are starting to aggressively make that claim -- at the FTC. Just search "pay for delay" as a term on this site's little box, upper left.
So, do stay tuned. Has the FTC asked to see the settlement agreement, unredacted? It plainly has the jurisdiction to do so. I'll pop the popcorn, here.
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