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# Another Appeals Court Rejects FTC Disgorgement
- URL: https://www.fdaweb.com/another-appeals-court-rejects-ftc-disgorgement/
- Published: 2020-10-06T12:00:00.000Z
- Updated: 2026-09-14T16:31:36.000Z
- Author: David McFarland
- Tags: Drugs, #legacy-id-D5147805

In a 9/30 ruling, the 3rd Circuit Court of Appeals rejected the Federal Trade Commission’s (FTC) authority to seek disgorgement under Section 13(b) of the FTC Act. Attorney **Karin Moore** (Hyman, Phelps & McNamara) [writes](https://www.fdalawblog.net/2020/10/restitution-and-disgorgement-authority-under-ftc-act-section-13b-rejected-again/?ref=fdaweb.com) in her firm’s *FDA Law Blog* that the 3rd Circuit’s ruling is consistent with one from the 7th Circuit and two judges from the 9th Circuit in separate cases. The issue of disgorgement under Section 13(b) will be heard by the Supreme Court this term in two different cases, she writes.

In the [case](https://www.fdaweb.com/androgel-case-remanded-to-pennsylvania-federal-court/) involving reverse payments under the Waxman-Hatch Act, a Pennsylvania federal court had ordered AbbVie and Besins to disgorge $448 million. The 3rd Circuit said the lower court had erred in its order.

Moore says the appeals court analyzed Section 13(b) and found that while it authorizes a court to “enjoin” antitrust violations, it says nothing about disgorgement, which the court said is a form of restitution and not injunctive relief. The court said that disgorgement is intended to deprive a wrongdoer of past gains, which is not the focus of 13(b).

Moore adds that neither the FTC Act nor the Federal Food, Drug, and Cosmetic Act contains specific language on disgorgement. She says that FDA “simply relies on the vague statement that courts can ‘restrain violations’ of the FDA Act to support its demand for disgorgement and/or restitution.”

More clarity should come from the Supreme Court’s consideration of two FTC cases this term, Moore writes.