The US Court of Appeals for the Third Circuit Court Dismisses a Complaint Only Based on Past Conduct Against a Pharmaceutical Company (Shire Viropharma)

On February 25, 2019, the Third Circuit held that the Federal Trade Commission cannot bring litigation in federal court based on past conduct, absent factual allegations demonstrating that a defendant “is violating or is about to violate” the laws enforced by the FTC. In doing so, the court affirmed the dismissal of a case brought by the FTC alleging that defendant Shire ViroPharma, Inc. (“Shire”) had violated the antitrust laws by engaging in serial, sham petitioning of the United States Food and Drug Administration (FDA). Neither the district court’s decision nor the Third Circuit’s affirmance relied on the substance of the underlying allegations. Instead, both courts concluded that the FTC had overstepped its statutory authority by bringing the case in the first place. The Third Circuit’s decision substantially limits the FTC’s ability to litigate in federal court. In this Concurrences article, attorneys George G. Gordon and Thomas J. Miller review the FTC v. Shire ViroPharma case and its implications.

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