Judge Thrash Gets Right to the Point

, Daily Report


Every once in a while, the lawyers in a long-running case can get a judge's goat. And that judge, in turn, may let counsel know what he really thinks.

U.S. District Court Judge Thomas Thrash Jr. had one of those moments recently in a long-running multidistrict antitrust case over the testosterone booster Androgel.

Attorneys for the U.S. Federal Trade Commission—which had sued pharmaceutical companies for allegedly violating federal antitrust laws by paying to delay introduction of a generic version—had asked Thrash to set aside his 2010 order dismissing the FTC case in light of a recent U.S. Supreme Court ruling that had reversed the U.S. Eleventh Circuit's decision to uphold the dismissal—and, by extension, also reversed Thrash. Lawyers for the pharmaceutical companies had objected, asking the judge to deny the FTC motion, which would reinstate the antitrust case.

Finding that the defense motion "accomplishes nothing but further delay," Thrash wrote, "Everyone knows who profits from that."

He slapped down defense arguments that a post-judgment change in the law was "not sufficiently extraordinary" to justify setting aside his earlier dismissal of the case. "Well, it seems pretty extraordinary to me because the change in the law resulted from reversal of a judgment I entered in this case," he wrote. "That does not happen every day."

Replying to defense arguments that granting the FTC motion would "rob the parties and the Court of potential guidance from the Eleventh Circuit," Thrash wrote, "As much as I would love some guidance from the Eleventh Circuit on how in the heck a trial judge (and a jury) is supposed to apply [FTC v. Actavis Inc., 133 S.Ct. 2223 (2013)] to an actual case, I doubt that the Eleventh Circuit is going to jump into that briar patch until it has to. The Court of Appeals has the luxury of saying to me, 'You do it.'"

Thrash then ruled in favor of the FTC.

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