On January 17, 2013, the FTC reported a record number of pay-for-delay settlements in 2012, increasing to 40 from 28 in 2011. The agreements covered 31 different products totaling more than $8.3 billion in annual U.S. sales. According to the FTC, pay-for-delay settlements cost Americans $3.5 billion annually.
The FTC has opposed pay-for-delay settlements for at least the last decade. But prior to the Third Circuit's decision in In re K-Dur Antitrust Litigation in July 2012 holding such settlements prima facie unlawful, the federal courts had largely rejected the FTC's position. In the wake of the circuit split, the Supreme Court granted certiorari in FTC v. Watson Pharmaceuticals Inc. in December 2012. It is anticipated that the Supreme Court will hear oral argument in March 2013. The Supreme Court is holding the petition for writ of certiorari in K-Dur until after the Watson Pharmaceuticals decision.