Client Alert

Federal Trade Commission Reaches Back to Divest New Drug Acquisition

December 17, 2008

Michael P. A. Cohen

In an untypical move, the Federal Trade Commission has filed a lawsuit against Ovation Pharmaceuticals to divest Ovations recent acquisition of new drug NeoProfen. At the time of the acquisition, NeoProfen was pending FDA approval and the dollar amounts for the transaction did not meet Hart Scott Rodino (HSR) thresholds for notification and merger review. According to the FTC complaint, Ovation had previously acquired Indocin, the only other treatment for PDA, a congenital heart disorder in premature newborns. The FTC claims that after the acquisition, Ovation raised the price of Indocin 1300% and set the price for NeoProfen at the same levels. The Commission is seeking divestiture and disgorgement. And two commissioners indicated they would seek to unwind both Ovation acquisitions.

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