An inquiry by several states into Barr's tamoxifen agreement with AstraZeneca is the latest indication that states are not deferring to the Federal Trade Commission in investigating patent settlements.

The Oregon Attorney General is investigating Barr's settlement with AstraZeneca regarding tamoxifen, Barr's annual report, filed with the Securities & Exchange Commission Aug. 24, says.

"On Aug. 17, 2001, the Oregon Attorney General's office, on behalf of a group of state Attorney Generals, served the company with a civil investigation demand relating to its investigation of the company's settlement of its tamoxifen patent challenge," Barr said. The company "is reviewing the demand and intends to fully cooperate with the Attorney General's office in its investigation."

The states' investigation into the tamoxifen settlement follows a May 1 request by the Texas AG's office on behalf of several states for documents pertaining to Barr's settlement in the Cipro (ciprofloxacin) patent case brought by Bayer.

Barr "entered into an agreement with the states allowing them to investigate the company's settlement of the ciprofloxacin patent challenge with Bayer AG," the filing says.

FTC requested documents regarding the Cipro settlement in 1999, and the Commission's survey of drug companies earlier this year included questions on tamoxifen. The Department of Justice requested documents in the tamoxifen deal in 1998 and 1999.

In May, 15 states and the District of Columbia initiated an antitrust case against Andrx and Aventis alleging that the two companies colluded to keep generic versions of Cardizem CD (diltiazem) off the market (¹ Also see "Andrx/Aventis Cardizem CD Class Action Appeal Pending; State AGs Sue" - Pink Sheet, 21 May, 2001.).

The action came despite an FTC acknowledgement in March that the patent litigation settlement did not delay the advent of generic competition to Cardizem CD (² Also see "Andrx/Aventis Settle With FTC: Agency Says Cardizem CD Generic Not Delayed" - Pink Sheet, 9 April, 2001.). The states said they did not agree with FTC's conclusion.

Private parties are also taking action on alleged antitrust violations independent of FTC action. A consolidated class action suit against Andrx and Aventis related to Cardizem CD brought by consumers, wholesalers, insurers and retail is pending at the appellate court in Cincinatti.

More recently, BlueCross/BlueShield companies in Michigan, Massachusetts, Minnesota and New York sued Andrx and Aventis in Detroit federal court.

Barr/AstraZeneca Tamoxifen Settlement Under Investigation By State AGs

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