Drug Companies Unite to Protect Their Confidential Settlements: Implications of The Motion to Compel in FTC v. Cephalon

In ongoing antitrust litigation related to the antisleeping drug Provigil, drug manufacturer Cephalon recently moved to compel the production of all materials underlying two Federal Trade Commission studies cited by the Commission in support of its claims. The dispute over the discoverability of these materials, although seemingly innocuous, garnered the attention of nearly forty third-party pharmaceutical companies that, along with tens and perhaps hundreds of other drug companies since 2001, have filed patent litigation settlement agreements with the FTC as required by federal law. Apprehensive about the prospect of having their settlement strategies made public, these third parties opposed disclosure and moved to intervene. In the end, the court denied Cephalon’s motion to compel, thus protecting the confidentiality of the third parties’ agreements. Yet while these companies were undoubtedly relieved by the court’s decision, they now face the possibility of one day finding themselves in Cephalon’s shoes, having to defend against untested conclusions from FTC studies without the benefit of the materials upon which these studies were based.