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order that “would have required a larger asset divestiture had the more narrowly tailored divestiture not occurred.” 138 The consent orders included requirements for the divestiture of specific product business; 139 divestiture of worldwide rights to a specific product; 140 divestiture of trademark rights to specific products;141 divestiture of contractual rights to a drug, either to the named divestiture buyer or a third party approved by FTC;142 and divestiture of a brand.143 One case expressly identified the scope of the assets in that case as including “patents, . . . technology, . . . manufacturing information, testing and quality control data, research materials, . . . customer lists . . . [and] inventory sufficient . . . to complete all clinical trials or . . . studies necessary to obtain FDA approval.”144 Another required the divestiture of development and distribution rights, including ongoing clinical trials for a particular product.145 Several required divestiture of certain U.S. patents and other assets in areas where the divestiture buyer markets the drug.146 Others required the divestiture of assets and termination of interests.147 Many consent orders required that the divesting party maintain the drug’s viability, marketability, and competitiveness pending divestiture.148
B. Trustee/Monitor Appointment
A number of consent orders required the appointment of a third party to assess and assure compliance with the terms of the order. The provisions ranged from a general right of the FTC to appoint an interim monitor to ensure parties fulfill their obligations at any time149 to in-depth specifications on what that monitor is to accomplish. One consent order set forth the right
ftc-intervenes-king-pharmaceuticals-acquisition-rival-alpharma; see also King Pharm., Inc., supra note 104, at 19-22. 138. FTC ANTITRUST ACTIONS, supra note 62, at 52 (referring to this as the “crown jewel”). 139. See generally Analysis Of Proposed Consent Order To Aid Public Comment, FED. TRADE COMM’N, https://www.ftc.gov/sites/default/files/documents/cases/2003/04/pfizer analysis.htm (last visited Mar. 25, 2016) (The “Cortaid business” and “Hall cough drop business” are examples of specific product businesses). 140. See Glaxo Wellcome PLC, et al., supra note 96, at 56. 141. Id. 142. See Sanofi-Synthelabo, et al., supra note 114, at 478. 143. See generally Pfizer Inc., et al., supra note 110, at 608. 144. See Glaxo PLC, supra note 95, at 819. 145. See Allergan, Inc., supra note 84, at 5, 12. 146. See, e.g., Sanofi-Synthelabo, et al., supra note 114, at 487. 147. See, e.g., Baxter Int’l Inc., et al., supra note 8889, at 49; see also, Zeneca Grp. PLC, supra note 127, at 874 (requiring the “transfer and surrender” of rights and assets). 148. See Akorn Inc., supra note 130, at 27; see also, Actavis, Inc., supra note 128, at 31. 149. See Schering-Plough Corp., supra note 115, at 33; see also Akorn Inc., supra note 130, at 29.