22-728

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

–––––––––––––––––––––––––––––––––––––––––––––

FEDERAL TRADE COMMISSION, STATE OF NEW YORK, 

STATE OF CALIFORNIA, STATE OF OHIO, COMMONWEALTH 

OF PENNSYLVANIA, STATE OF ILLINOIS, STATE OF NORTH 

CAROLINA, COMMONWEALTH OF VIRGINIA,

Plaintiffs-Appellees, 

v. 

MARTIN SHKRELI, individually, as an owner and former director 

of Phoenixus AG and as a former executive of Vyera 

Pharmaceuticals, LLC, Defendant-Appellant, 

(Caption continues on inside cover)

–––––––––––––––––––––––––––––––––––––––––––––

On Appeal from the United States District Court 

for the Southern District of New York

No. 20-cv-706 (Hon. Denise Cote) 

–––––––––––––––––––––––––––––––––––––––––––––

BRIEF OF THE FEDERAL TRADE COMMISSION

–––––––––––––––––––––––––––––––––––––––––––––

JOEL MARCUS

Deputy General Counsel

Of Counsel: BRADLEY DAX GROSSMAN

MARKUS H. MEIER Attorney BRADLEY S. ALBERT FEDERAL TRADE COMMISSION

MAREN HANEBERG 600 Pennsylvania Avenue, N.W. NEAL J. PERLMAN Washington, D.C. 20580 DANIEL W. BUTRYMOWICZ (202) 326-2994

bgrossman@ftc.gov FEDERAL TRADE COMMISSION

Washington, D.C. 20580

Case 22-728, Document 144, 03/27/2023, 3490165, Page1 of 74
(Continued from front cover) 

VYERA PHARMACEUTICALS, LLC, PHOENIXUS AG, KEVIN 

MULLEADY, individually, as an owner and director of Phoenixus AG and as a 

former executive of Vyera Pharmaceuticals, LLC, Defendants. 

Case 22-728, Document 144, 03/27/2023, 3490165, Page2 of 74
i 

TABLE OF CONTENTS

Table of Authorities................................................................................................. iii

Introduction................................................................................................................ 1

Jurisdiction ................................................................................................................. 2

Questions Presented ................................................................................................... 2

Statement Of The Case .............................................................................................. 3

A. Generic Drug Competition ................................................................................. 3

B. Shkreli’s Initial Schemes To Forestall Generic Competition............................. 5

C. Shkreli Repeats And Expands His Anticompetitive Tactics With 

Daraprim............................................................................................................. 6

D. Shkreli’s Anticompetitive Plot To Prevent Generic Competition 

For Daraprim....................................................................................................... 8

1. Restrictions On Distributors’ Sale Of Product Samples .................... 8

2. Agreements To Block Generics From Securing API.......................10

3. Agreements To Block Reporting Of Commercial Data ...................12

E. Anticompetitive Consequences ........................................................................12

F. The Decision Below..........................................................................................14

G. The Permanent Injunction.................................................................................18

Summary Of Argument............................................................................................19

Standard Of Review................................................................................................. 23

Argument..................................................................................................................24

I. Courts Have Equitable Discretion To Impose Lifetime Industry 

Restrictions For Violations Of The FTC Act ...................................................24

A. This Court Has Sustained Injunctions Permanently Barring 

Wrongdoers From An Industry ................................................................26

Case 22-728, Document 144, 03/27/2023, 3490165, Page3 of 74
ii

B. Serious, Deliberate, Or Repeated FTC Act Violations Merit 

Serious Remedies .....................................................................................29

II. The District Court Properly Exercised Its Discretion When It 

Barred Shkreli From The Pharmaceutical Industry..........................................33

A. The District Court Properly Weighed The Relevant 

Equitable Considerations..........................................................................34

1. Shkreli’s Violations Were Egregious And Threatened 

Public Health.....................................................................................35

2. Shkreli’s Violations Were Intentional ..............................................36

3. Shkreli’s Violations Were Repeated.................................................37

4. Shkreli Has Failed To Accept Responsibility For His 

Actions..............................................................................................39

5. Shkreli’s Control Of The Violations From Prison 

Signals That He Would Circumvent A Narrower 

Injunction..........................................................................................39

6. The Lifetime Bar Is Not Unduly Burdensome ................................. 40

B. The District Court Properly Concluded That A Narrower 

Remedy Would Not Protect The Public...................................................41

1. The District Court Appropriately Declined To Limit 

The Injunction To Specific Types Of Conduct ................................42

2. The District Court Properly Barred Shkreli From 

Pharmaceutical Research And Development And 

Company Ownership ........................................................................45

3. Shkreli Forfeited The Claim That The District Court 

Improperly Banned Him From Various Industry 

“Sectors” ...........................................................................................46

4. The District Court Properly Imposed The Injunction 

For Shkreli’s Lifetime.......................................................................50

III. The Injunction Does Not Infringe Shkreli’s First Amendment 

Rights................................................................................................................51

IV. The Injunction Is Sufficiently Clear And Specific ...........................................56

Conclusion ...............................................................................................................62

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TABLE OF AUTHORITIES 

CASES

CFPB v. Nesheiwat, 

No. 21-56052, 2022 WL 17958636 (9th Cir. Dec. 27, 2022)..............................31

City of New York v. Mickalis Pawn Shop, LLC, 

645 F.3d 114 (2d Cir. 2011).......................................................................... 24, 28

Conn. Office of Prot. & Advocacy v. Hartford Bd. of Educ., 

464 F.3d 229 (2d Cir. 2006).................................................................................23

EEOC v. AutoZone, Inc., 

707 F.3d 824 (7th Cir. 2013)................................................................................51

EEOC v. KarenKim, Inc., 

698 F.3d 92 (2d Cir. 2012)............................................................................ 24, 35

ES Development, Inc. v. RWM Enterprises, Inc., 

939 F.2d 547 (8th Cir. 1991)......................................................................... 50, 51

F. Hoffmann-La Roche Ltd. v. Empagran S.A., 

542 U.S. 155 (2004).............................................................................................25

Ford Motor Co. v. United States, 

405 U.S. 562 (1972).............................................................................................32

FTC v. Actavis, Inc., 

570 U.S. 136 (2013).............................................................................. 3, 4, 47, 48

FTC v. AMG Capital Mgmt., LLC, 

141 S. Ct. 1341 (2021).........................................................................................30

FTC v. AMG Capital Mgmt., LLC, 

910 F.3d 417 (9th Cir. 2018)................................................................................30

FTC v. Colgate-Palmolive Co., 

380 U.S. 374 (1965).............................................................................................25

Case 22-728, Document 144, 03/27/2023, 3490165, Page5 of 74
iv

FTC v. Five-Star Auto Club, Inc., 

97 F. Supp. 2d 502 (S.D.N.Y. 2000)....................................................................32

FTC v. Gill, 

265 F.3d 944 (9th Cir. 2001)....................................................... 20, 29, 30, 37, 42

FTC v. Grant Connect, LLC, 

763 F.3d 1094 (9th Cir. 2014) .................................................... 20, 30, 37, 42, 47

FTC v. Lalonde, 

545 F. Appx. 825 (11th Cir. 2013).......................................................................31

FTC v. Micom Corp., 

No. 96-0472, 1997 WL 226232 (S.D.N.Y. Mar. 12, 1997).................................31

FTC v. Moses, 

913 F.3d 297 (2d Cir. 2019).......................................................................... 60, 61

FTC v. Nat’l Lead Co., 

352 U.S. 419 (1957).............................................................................................44

FTC v. Pukke, 

53 F.4th 80 (4th Cir. 2022) ........................................................................... 20, 31

FTC v. Ruberoid Co., 

343 U.S. 470 (1952).............................................................................................25

FTC v. Shkreli, 

581 F. Supp. 3d 579 (S.D.N.Y. 2021)..................................................................14

FTC v. Superior Court Trial Lawyers Ass’n, 

493 U.S. 411 (1990).............................................................................................52

Geneva Pharms. Tech. Corp. v. Barr Labs., Inc., 

386 F.3d 485 (2d Cir. 2004).................................................................................49

Giboney v. Empire Storage & Ice Co., 

336 U.S. 490 (1949).............................................................................................53

Case 22-728, Document 144, 03/27/2023, 3490165, Page6 of 74
v 

Ill. Tool Works Inc. v. Indep. Ink, Inc., 

547 U.S. 28 (2006)........................................................................................ 21, 25

Impax Labs., Inc. v. FTC, 

994 F.3d 484 (5th Cir. 2021)................................................................................49

In re DDAVP Direct Purchaser Antitrust Litig., 

585 F.3d 677 (2d Cir. 2009).................................................................................48

In re Generic Pharms. Pricing Antitrust Litig., 

394 F. Supp. 3d 509 (E.D. Pa. 2019)...................................................................49

Int’l Salt Co. v. United States, 

332 U.S. 392 (1947).......................................................................... 21, 25, 38, 44

Jews for Jesus, Inc. v. Jewish Community Relations Council of N.Y., Inc., 

968 F.2d 286 (2d Cir. 1992).................................................................................53

Madsen v. Women’s Health Ctr., Inc., 

512 U.S. 753 (1994)...................................................................................... 55, 56

Mallet & Co. v. Lacayo, 

16 F.4th 364 (3d Cir. 2021)........................................................................... 32, 33

Maryland v. United States, 

460 U.S. 1001 (1983)...........................................................................................32

McComb v. Jacksonville Paper Co., 

336 U.S. 187 (1949)................................................................................ 23, 42, 61

Merck Eprova AG v. Gnosis S.p.A., 

760 F.3d 247 (2d Cir. 2014).................................................................................23

Metropolitan Opera Ass’n v. Local 100, Hotel Employees & Restaurant 

Employees International Union, 

239 F.3d 172 (2d Cir. 2001).................................................................................56

Nat’l Soc. of Prof’l Eng’rs v. United States, 

435 U.S. 679 (1978).......................................................................... 38, 52, 54, 55

Case 22-728, Document 144, 03/27/2023, 3490165, Page7 of 74
vi

New York ex rel. Schneiderman v. Actavis PLC, 

787 F.3d 638 (2d Cir. 2015).................................................................................48

NLRB v. Express Publ’g Co., 

312 U.S. 426 (1941).............................................................................................28

Peregrine Myanmar, Ltd. v. Segal, 

89 F.3d 41 (2d Cir. 1996).............................................................................. 53, 57

S.C. Johnson & Son, Inc. v. Clorox Co., 

241 F.3d 232 (2d Cir. 2001).................................................................... 56, 57, 61

SEC v. Commonwealth Chem. Secs., Inc., 

574 F.2d 90 (2d Cir. 1978)...................................................................................34

SEC v. First Pac. Bancorp, 

142 F.3d 1186 (9th Cir. 1998) .............................................................................26

SEC v. Frohling, 

851 F.3d 132 (2d Cir. 2016).................................................................................34

SEC v. Manor Nursing Ctrs., Inc., 

458 F.2d 1082 (2d Cir. 1972)........................................................................ 27, 40

SEC v. Posner, 

16 F.3d 520 (2d Cir. 1994).................................................... 20, 26, 34, 36, 37, 39

SEC v. Universal Major Indus. Corp., 

546 F.2d 1044 (2d Cir. 1976)...............................................................................34

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 

413 U.S. 548 (1973).............................................................................................58

United States v. A. Shrader’s Son, Inc., 

252 U.S. 85 (1920)...............................................................................................37

United States v. Apple Inc., 

791 F.3d 290 (2d Cir. 2015).................................................................... 25, 29, 33

Case 22-728, Document 144, 03/27/2023, 3490165, Page8 of 74
vii

United States v. AT&T Co., 

552 F. Supp. 131 (D.D.C. 1982)..........................................................................32

United States v. Carson, 

52 F.3d 1173 (2d Cir. 1995)............................................ 20, 26, 27, 28, 37, 55, 58

United States v. Diapulse Corp. of Am., 

457 F.2d 25 (2d Cir. 1972)............................................................................ 41, 57

United States v. E.I. du Pont de Nemours & Co., 

366 U.S. 316 (1961)...................................................................................... 24, 32

United States v. Private Sanitation Industry Ass’n of Nassau/Suffolk, Inc., 

995 F.2d 375 (2d Cir. 1993).......................................................................... 27, 58

United States v. U.S. Gypsum Co., 

340 U.S. 76 (1950).................................................................................. 25, 46, 62

URL Pharma, Inc. v. Reckitt Benckiser, Inc., 

No. 15-505, 2015 WL 5042911 (E.D. Pa. Aug. 25, 2015)..................................49

STATUTES 

15 U.S.C. § 1............................................................................................................14

15 U.S.C. § 2............................................................................................................14

15 U.S.C. § 45..........................................................................................................14

15 U.S.C. § 53(b).............................................................................................. 15, 27

15 U.S.C. § 77t.................................................................................................. 26, 27

15 U.S.C. § 78u................................................................................................. 26, 27

18 U.S.C. § 1964(a) .................................................................................................27

21 U.S.C. § 335a ......................................................................................................30

7 U.S.C. § 13a ..........................................................................................................27

RULES 

Fed. R. Civ. P. 65(d) ......................................................................................... 28, 56

TREATISES

11A Charles Alan Wright & Arthur R. Miller, 

 FEDERAL PRACTICE & PROCEDURE § 2955 (3d ed. Supp. 2022)..........................57

Case 22-728, Document 144, 03/27/2023, 3490165, Page9 of 74
INTRODUCTION

This case involves appellant Martin Shkreli’s illegal monopolization of the 

market for the prescription drug Daraprim, the gold-standard treatment for the lifethreatening infection toxoplasmosis. Shkreli (through his company Vyera

Pharmaceuticals) bought the rights to Daraprim in 2015 and immediately raised its 

price by over 4,000%, from $17.60 to $750 per tablet. To maintain sales following 

the price hike, Shkreli launched a scheme to block generic companies from 

obtaining the essential inputs they needed to develop competing generic versions 

of the drug. Shkreli’s anticompetitive conduct kept generic rivals off the market 

for years and allowed him to charge supracompetitive prices for Daraprim. Shkreli 

and Vyera reaped $64 million in illicit monopoly profits. 

The Federal Trade Commission and seven states filed suit against Shkreli for

violating federal and state antitrust laws. After a seven-day bench trial, the district 

court (Cote, J.) found that Shkreli’s actions were “heartless,” “dangerous,” and 

illegal. The court ordered Shkreli to pay back his company’s unlawful profits and, 

because Shkreli had previously shielded other drugs from competition through

similar anticompetitive misconduct, prohibited him from participating in the 

pharmaceutical industry. On appeal, Shkreli challenges neither the district court’s 

findings of fact nor its legal determination that he violated the antitrust laws. He

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disputes only the district court’s remedy. This brief addresses the injunction; the 

State appellees will address the monetary remedy. 

The district court acted well within its broad equitable discretion in crafting 

the prohibition on Shkreli’s future participation in the pharmaceutical industry. 

The court found as fact—and Shkreli does not challenge any of the factual 

findings—that Shkreli was an egregious, intentional, and recidivist wrongdoer with 

a high propensity for future violations. His plainly illegal scheme, carried out in 

part from prison using a contraband phone, exploited the health of vulnerable 

patients. Nor was this the first time Shkreli had engaged in such predatory 

conduct. On top of all that, Shkreli showed no remorse, declaring that his only 

regret was not raising prices even higher. The district court reasonably concluded 

that he could not be trusted to obey the law, much less a more narrowly tailored 

injunction, and that the pharmaceutical industry ban was necessary to protect

patients and the public from further anticompetitive harm. 

JURISDICTION

The FTC agrees with Shkreli’s jurisdictional statement.

QUESTIONS PRESENTED

1. Did the district court abuse its discretion when it imposed a permanent 

injunction against Shkreli’s future participation in the pharmaceutical industry? 

2. Does the injunction violate Shkreli’s First Amendment rights? 

Case 22-728, Document 144, 03/27/2023, 3490165, Page11 of 74
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3. Do the terms of the injunction satisfy the clarity and specificity 

requirements of Federal Rule of Civil Procedure 65(d)? 

STATEMENT OF THE CASE

Martin Shkreli acquired Daraprim, a life-saving drug with no patent 

protection but no adequate substitutes, dramatically increased its price, and 

illegally prevented competitors from introducing rival products at lower prices. 

The facts found by the district court in its meticulously documented order are not 

contested on appeal. 

A. Generic Drug Competition 

Because this case centers on Shkreli’s monopolization of a drug market by 

excluding generic rivals, we begin by describing the legal and economic 

framework surrounding generic drug competition. Generic drugs are essentially 

identical to their branded counterparts, SPA-34-37, and generic competition 

benefits consumers by lowering prices. The first generic typically undercuts the 

brand-name drug’s price by 30 to 40 percent and garners 60 to 70 percent of its

sales. SPA-37. Prices fall further with additional generics. SPA-38. 

A drug company seeking to sell a generic product must file an Abbreviated 

New Drug Application with the FDA. SPA-32; see FTC v. Actavis, Inc., 570 U.S. 

136, 142 (2013). The application must demonstrate, among other things, that the 

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generic product uses a suitable source of active pharmaceutical ingredient (API) 

and is therapeutically equivalent to the brand. SPA-32-37.

A suitable API source is a supplier with a manufacturing process that 

complies with FDA standards. SPA-32-33. Developing an FDA-compliant 

process from scratch is expensive and time-consuming, so generic applicants 

typically use an established API supplier that already has FDA approval for its 

manufacturing process. SPA-33-34. 

A generic applicant must also show that its product “has the same active 

ingredients as, and is biologically equivalent to, the already-approved brand name 

drug.” Actavis, 570 U.S. at 142 (cleaned up). An applicant makes that showing 

through bioequivalence testing of the generic product against samples of the brand 

drug. SPA-35. The testing requires access to sufficient quantities of the brand 

drug, which generic companies ordinarily obtain through drug wholesalers or 

specialty pharmacies. SPA-35-36. 

Most drugs in the United States are sold through what is known as “open 

distribution” channels, where major distributors sell the product without limitation

to retail pharmacies, hospitals, clinics, and nursing homes. SPA-38. A smaller

number are sold through “specialty” or “closed” distribution, in which a 

manufacturer restricts how freely a drug is sold. SPA-38-39. Because specialty 

distribution results in lower sales, drug companies typically use it only when the 

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product poses safety concerns; has unique shipping, handling, or storage 

requirements; or requires ongoing monitoring or skilled administration (e.g., 

injections). SPA-39-40. 

B. Shkreli’s Initial Schemes To Forestall Generic Competition 

Shkreli’s business strategy for more than a decade has been to acquire older 

drugs without patent protection that treat relatively rare diseases, raise their prices 

multifold, and prevent competition through restrictive agreements with third 

parties. Patients are subjected to extreme price-gouging in the meantime. 

Shkreli first implemented that approach at Retrophin, which he co-founded 

in 2011, serving as the CEO and architect of its business strategy. SPA-40. 

Retrophin acquired two drugs: Chenodal, the sole treatment for a rare, lifethreatening cholate excretion disorder, and Thiola, the only drug available to 

prevent symptoms of a rare kidney stone disorder. SPA-42 & nn.16-17. After 

acquiring the drugs, Retrophin raised Chenodal’s price from $100,000 to $515,000 

per year and Thiola’s from $4,000 to $80,000 per year. SPA-42. Shkreli sustained

these prices by entering agreements to restrict distribution of the drugs and prevent 

generic companies from acquiring the product samples needed for bioequivalence 

testing. SPA-41. 

Shkreli knew that Chenodal’s “unique distribution system does not allow for 

generics to access product to conduct bioequivalence studies,” making FDA 

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approval “almost impossible,” SUPP-95, 105-06, and keeping patients “on our 

product forever,” SUPP-86.

1

 

C. Shkreli Repeats And Expands His Anticompetitive Tactics With 

Daraprim

In 2014, Shkreli left Retrophin and founded Vyera, where he was CEO until 

December 2015, when he was charged with securities fraud. SPA-42-43, 96. He 

also served as Chairman of Vyera’s parent company, Phoenixus AG, through early 

2016.2

 SPA-43. Even after Shkreli left these roles and went to prison, he 

remained Vyera’s largest shareholder and wielded “shadow control.” SPA-29, 43, 

97-98, 136-37. At Vyera, Shkreli employed the strategy he developed at 

Retrophin, along with new tactics to prevent generic competition. As the district 

court found, “[f]rom day one,” Shkreli focused Vyera on “acquiring sole-source 

drugs that were the gold-standard treatment option for life-threatening diseases 

with a small patient population ... with the intent to raise their prices, block 

generic competition, and reap extraordinary profits.” SPA-42-43, 96. 

Shkreli first tried to acquire Biltricide, the gold-standard treatment for the 

“severe parasitic disease” schistosomiasis. SUPP-16, 20. Vyera planned to raise 

1 “SUPP” refers to appellees’ Supplemental Appendix. 

2 Vyera changed its name from Turing Pharmaceuticals in 2015 to distance itself 

from Shkreli in the public mind. SPA-42-43. Unless otherwise specified, we use 

“Vyera” to refer collectively to Vyera, Turing, and Phoenixus. 

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the price of a course of treatment from $95 to over $100,000 and close the 

distribution channels to prevent generic competition. SUPP-20, 26-27. But the 

deal fell through. SUPP-147. 

Shkreli then trained his sights on Daraprim (pyrimethamine). On the market 

since 1953, Daraprim is the only FDA-approved treatment for toxoplasmosis, a 

parasitic infection that principally affects immunocompromised patients, including 

transplant recipients and people with HIV/AIDS. SPA-44-45, 47, 117. The 

parasites can cause a brain condition called toxoplasma encephalitis, which can kill 

or cause severe brain damage within 12 to 24 hours after symptoms appear. SPA45. Doctors thus need immediate access to an effective treatment. Id.; SPA-117. 

Daraprim is both the preferred treatment and an essential diagnostic tool: a 

response to the drug confirms that the patient had toxoplasmosis and not something 

else, such as a bacterial infection. SPA-47, 117, 120-21. The only diagnostic 

alternative for toxoplasma encephalitis is a risky brain biopsy. Id. Shkreli and his 

team decided to acquire Daraprim on the express recognition that it is “the GOLD 

standard and is essentially unsubstitutable.” SUPP-5, 9. 

Once Vyera acquired Daraprim, Shkreli immediately raised the price from 

$17.60 to $750 per tablet. SPA-48, 97. When Vyera’s general counsel objected, 

Shkreli fired him. SPA-97. Vyera’s head of research and development called the

price increase “the poster child of everything that is considered wrong about the 

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pharmaceutical industry.” SPA-48. Nevertheless, Vyera’s gross profit margins 

soared to 98%. SPA-49.

D. Shkreli’s Anticompetitive Plot To Prevent Generic Competition

For Daraprim

Shkreli knew that because Daraprim had no patent or regulatory protection, 

its high price would attract generic entry and undercut his monopoly prices. See, 

e.g., SUPP-74, 141, 155, 202. He implemented a three-pronged counterstrategy. 

First, as Shkreli did at Retrophin, he directed Vyera to enter agreements with its 

distributors to prohibit sales of Daraprim to generic companies. Second, he 

directed Vyera to agree with pyrimethamine API manufacturers to cut off 

competitors’ access to the necessary ingredient. Third, he directed Vyera to agree 

with distributors to prevent generic companies from obtaining sales data necessary 

to assess profitability of a competing drug. 

1. Restrictions On Distributors’ Sale Of Product Samples

Even before Vyera had closed the Daraprim acquisition, Shkreli instructed

the company to take Daraprim out of retail distribution, buy back existing 

inventory, and move to a closed system “as swiftly as possible.” SPA-50, 97; 

SUPP-53. Specifically, Vyera’s distribution agreements forbade Daraprim sales to 

generic companies and tightly limited the amount anyone could acquire so that 

generic companies could not obtain sufficient product. SPA-52-59; SUPP-119-20. 

Shkreli’s decision to close distribution was not based on patient health or any 

Case 22-728, Document 144, 03/27/2023, 3490165, Page17 of 74
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requirements for handling the drug, but on preventing generic competition. SPA52; A-1405-06, 1439, 1928. Shkreli told an investor that because the drug is “in 

closed distribution there will not be any [generic competition] going forward. ... 

[E]ven if we get 3 years, it is a great payout.” SPA-51; SUPP-7. 

 Shkreli and Vyera took extraordinary steps to ensure that no competitor 

could get Daraprim. When Vyera learned that an intermediary had obtained five 

bottles of Daraprim with plans to resell it to the generic company Dr. Reddy’s, 

Vyera’s then-CEO, Kevin Mulleady, “frantic[ally]” raced the next day to a

Starbucks parking lot in Parsippany, New Jersey, where he met the intermediary 

and repurchased the bottles for $750,000, double the original price. SPA-58, 77-

78; A-2057-58. 

Shkreli was so invested in preventing the sale of Daraprim to generic 

companies that he repeatedly called Vyera executives from prison to instruct them 

to tighten their grip on supply. SPA-56. When Shkreli learned that generic 

company Fera sought to buy Daraprim samples, he urged Mulleady not to “sell 

more than one bottle at a time” so that Fera’s CEO is “not getting his hands on 

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anything.” SUPP-58.

3

 To maintain control of distribution, Shkreli told another 

Vyera executive that the company should insist on “meet[ing] ... doctors” before 

agreeing to supply their patients. SUPP-69. Shkreli believed that eliminating 

generic competition would make Daraprim a “$600 million asset ... in perpetuity.” 

Id. When the executive reminded Shkreli that Vyera was required to sell Daraprim 

to hospitals (whose patients needed the drug to survive), Shkreli responded, “that’s 

a shame.” Id. 

2. Agreements To Block Generics From Securing API

At Shkreli’s direction, Vyera entered exclusivity agreements with the two 

leading suppliers of pyrimethamine, Daraprim’s API. As discussed at p. 4, generic 

companies must either use an established API supplier or spend years to create 

their own manufacturing process. Knowing this, Vyera entered agreements with

API suppliers Fukuzyu and RL Fine preventing them from selling pyrimethamine

to generic companies for domestic use. SPA-59. 

Fukuzyu has long been the main API supplier for Daraprim throughout the 

world. SPA-60. Fukuzyu had never entered an exclusivity agreement with either 

3 Shkreli’s brief misrepresents the extent of his involvement from prison. He 

claims that he called Mulleady from prison in his capacity as a “longtime friend” 

and that Mulleady “regularly ignored” Shkreli’s “suggestions.” Br. 7. The district 

court found that Shkreli “managed to control his company even from federal 

prison,” SPA-143, a finding that “Shkreli does not appeal,” Br. 4 n.3. In a 

recorded prison call, Shkreli reminded Mulleady of his power to “fir[e] 

everybody.” SPA-101; SUPP-77. Shkreli ultimately did fire Mulleady. SPA-102.

Case 22-728, Document 144, 03/27/2023, 3490165, Page19 of 74
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the U.S. or global owners of Daraprim. SPA-60-61, 128. At Shkreli’s behest, 

however, Vyera told Fukuzyu that it needed such an agreement to prevent the sale 

of “significantly lower” priced generic pyrimethamine, which would reduce 

Fukuzyu’s own profits. SPA-61-63, 97. Fukuzyu accepted the proposal. SPA128. The sole purpose of the agreement was to cripple generic competition. SPA63-64, 130-31. 

Vyera entered an even more egregious agreement with RL Fine, the second 

most-viable API supplier. SPA-64-65, 70-71. Shkreli, while imprisoned, learned 

that generic companies were trying to buy pyrimethamine from RL Fine and texted

Mulleady about it from a contraband cell phone. SPA-65-66 & n.27; see SUPP-15. 

Days later, Vyera agreed to pay RL Fine millions not to supply pyrimethamine API

to U.S. generics. SPA-66-68, 86, 88, 97, 132. Vyera’s corporate board minutes 

report that the agreement was intended to prevent “the potential market entry by 

generics manufacturers and distributors,” SUPP-51, and it “immediate[ly]” 

disrupted two generic companies’ FDA applications, SPA-129. By October 2019, 

Vyera had paid RL Fine almost $9.5 million, even though RL Fine never provided 

any product to Vyera nor sought FDA approval to do so. SPA-68-69, 132. Vyera 

then paid the company another $750,000 after RL Fine threatened to speak with 

the FTC. SPA-69. 

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3. Agreements To Block Reporting Of Commercial Data

Finally, Vyera agreed to pay key distributors a “data blocking” fee not to 

furnish their sales data to companies that collect, aggregate, and sell market data, 

so that generic companies would lack accurate or complete information about

Daraprim sales when deciding whether to develop a competing product. SPA-115 

n.35; SUPP-113-18. Shkreli “believed that ... limiting data to generic 

manufacturers ... would limit or impede their ability to assess the size of the 

market opportunity” for generic pyrimethamine. SUPP-115; see also A-1418-19.

E. Anticompetitive Consequences

Shkreli’s machinations were highly successful. SPA-69-70. A generic 

company could ordinarily obtain Daraprim product samples and an API supplier

within weeks. SPA-71. Lack of access delayed market entry by Dr. Reddy’s for 

30 months, SPA-81, and by Fera for roughly two years, SPA-88-89. During this 

time, Vyera maintained prices “very substantially above the competitive price 

level.” SPA-118, 124. 

The exploding price of Daraprim and its cumbersome distribution 

restrictions jeopardized the health of the immunocompromised patients who

urgently needed Daraprim to avoid death or brain damage. Sales of the drug 

plummeted, SPA-49, and some doctors switched to cheaper, second-tier 

treatments, A-625-26 ¶¶ 80-81; A-1371:3-22; SUPP-1. The next-best option, 

Case 22-728, Document 144, 03/27/2023, 3490165, Page21 of 74
13

TMP-SMX (Bactrim), is 25-to-50 times less potent than Daraprim, does not reach 

the brain in sufficient quantities to treat toxoplasmosis infection properly, and is 

not an option for the 30-35% of HIV-positive patients who are allergic. SPA-120-

21. The Infectious Disease Society of America and the HIV Medical Association 

pleaded with Vyera to reverse course, explaining that hospitals had become 

“unable to obtain” Daraprim. SUPP-3. They explained that Vyera’s 

extraordinarily high prices were “unjustifiable for the medically vulnerable patient 

population in need of this medication and unsustainable for the health care 

system.” SUPP-4.

Shkreli was unmoved. He later stated that his only regret was that he should 

have “raised prices higher ... and made more profits for our shareholders.” SUPP90. By that, Shkreli effectively meant himself, for he was the largest shareholder, 

SPA-43, and had purportedly invested “every penny I have—$25 million” into the 

company, SUPP-16. 

Generics finally entered the market in 2020, predictably causing prices to 

decline by 27% in just the first several months. SPA-93, 95-96, 118. More generic 

entry will lead to additional price decreases. SPA-96. Greater affordability has in 

turn led to increased sales, meaning that more immunocompromised patients are 

now receiving life-saving treatment. SPA-93-94. 

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F. The Decision Below

The FTC and the appellee States sued Shkreli, Vyera, and Mulleady for 

violating Section 5 of the FTC Act, 15 U.S.C. § 45, which prohibits unfair methods 

of competition, Section 1 of the Sherman Act, 15 U.S.C. § 1, which forbids 

unreasonable restraints of trade, Section 2 of the Sherman Act, 15 U.S.C. § 2, 

which prohibits monopolization, and analogous state laws. SPA-101-15. 

Vyera and Mulleady settled; Shkreli proceeded to trial. SPA-24. After 

seven days of testimony, the district court found that the government had met its 

burden to show that Shkreli committed the charged violations by restricting 

distributors from selling product samples to generic companies and entering 

exclusive API supply agreements.

4

 SPA-115-16, published at FTC v. Shkreli, 581 

F. Supp. 3d 579 (S.D.N.Y. 2021). 

The court found that Shkreli’s actions impeded competition in the market for 

FDA-approved pyrimethamine by “block[ing] generic competition to Daraprim ... 

for as long as possible,” allowing Shkreli and Vyera to maintain their monopoly 

and astronomical prices. SPA-125, 127-28, 134-35. Shkreli’s purported 

justifications were “pretextual” and unsupported. SPA-126-27, 130-32, 135-36. 

The court held Shkreli personally liable, since he “conceived of, implemented, 

4 The district court found that the data-blocking agreements did not cause 

additional delay in generic entry. SPA-115 n.35.

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maintained, and controlled Vyera’s anticompetitive and monopolistic scheme ... 

even after he entered federal prison.” SPA-136. These violations were intentional: 

Shkreli admittedly sought “to impede generic companies from launching 

competitive products that would threaten the price of Daraprim.” SPA-116, 125, 

136-37.

The court ordered Shkreli to disgorge up to $64.6 million in unlawful

profits. SPA-144-50. The court also entered a permanent injunction against 

Shkreli under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), and comparable 

laws applicable to the appellee States, finding that the public interest justified 

barring Shkreli from the pharmaceutical industry for life. See SPA-137-43. The 

court acknowledged that such a remedy “must be [imposed] with care and only if 

equity demands,” but stressed that Shkreli’s conduct was “egregious, deliberate, 

repetitive, long-running, and ultimately dangerous.” SPA-140.

First, the court determined that a lifetime prohibition was necessary to 

protect the public against the danger of Shkreli engaging in further anticompetitive 

schemes in the pharmaceutical industry. SPA-141. His violations were “flagrant 

and reckless,” SPA-143, and repeated at two different companies, SPA-141. The 

Daraprim violations were “particularly heartless and coercive,” the court 

explained, since patients needed the drug “within hours” to treat a deadly brain 

infection, yet Shkreli “recklessly disregarded” the health of those patients. Id.

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Second, the court stressed that Shkreli exploited the FDA’s regulatory 

process for developing new drugs. He “cynically took advantage of the 

requirements of a regulatory scheme designed to protect the health of a nation by 

ensuring that its population has access to drugs that are not only effective but also 

safe.” Id. 

Third, the court found that Shkreli’s lack of contrition and repentance made 

reform unlikely. “[I]n the face of public opprobrium,” Shkreli “refused to change 

course and proclaimed that he should have raised Daraprim’s price higher.” Id. In 

written testimony, Shkreli “denie[d] responsibility” for virtually every part of the 

scheme and asserted that he could not be held liable because he did not personally 

sign or negotiate the contracts. SPA-142.

5

 

Fourth, the court determined that a “lifetime ban would not deprive Shkreli 

of the opportunity to practice a profession or to exercise a lawful skill for which he 

trained.” SPA-141-42. Shkreli holds an undergraduate degree in business 

administration, has no academic background in pharmaceutical research or 

development, and had no pharmaceutical industry experience before co-founding 

Retrophin. See SUPP-125; SPA-40. 

5 See A-794 ¶¶ 42-43; A-796 ¶ 54; A-797 ¶¶ 57-60; A-798 ¶¶ 63-64; A-799

¶¶ 71-73; A-800 ¶¶ 75-78; A-801 ¶ 81. 

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Fifth, the court rejected Shkreli’s argument that a lifetime ban would exceed 

the court’s equitable powers, explaining that “[i]f a court sitting in equity is 

powerless to impose a lifetime industry ban to protect the public against a 

repetition of the conduct proven at this trial, then the public could rightfully ask 

whether its wellbeing has been adequately weighed.” SPA-143. Shkreli had 

argued for a narrower injunction that prevented him from “acquiring commercial 

assets” or engaging in the “day-to-day affairs of commercializing medicine.” Id. 

But the district court concluded that such an injunction would not provide 

“adequate protection” to the public, given that “Shkreli has demonstrated that he 

can and will adapt to restrictions.” Id. 

Indeed, Shkreli “managed to control his company even from federal prison,” 

including by using a cell phone that he smuggled past prison guards. Id.; see also

SPA-66. The court explained that Shkreli communicated with a single Vyera 

executive, Mulleady, from prison “over 1,500 times” in under seven months. SPA101. While incarcerated, Shkreli even orchestrated purges of directors and officers

who would not do his bidding. SPA-98-102; A-1212-1213. In 2017, when 

Vyera’s then-CEO resisted Shkreli’s orders, Shkreli declared him a “cockroach 

that needed to be stomped or crushed” and ousted him. SPA-98-99, A-1205-06. 

Shkreli replaced that CEO with Mulleady, but then removed Mulleady three years 

later for resisting Shkreli’s “meddlesome involvement.” SPA-101-02. 

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G. The Permanent Injunction

The injunction prohibits Shkreli from “directly or indirectly participating in 

any manner in the pharmaceutical industry.” SPA-166. The order provides

detailed and precise descriptions of what conduct is permitted and proscribed. 

Shkreli may not “[p]articipat[e] in or direct[]” the activities of a 

Pharmaceutical Company, “whether through compensated or uncompensated 

employment, consulting, advising, board membership, or otherwise.” Id. A 

“Pharmaceutical Company” is “any Entity engaged in the research, Development, 

manufacture, commercialization, or marketing of any Drug Product or API.” SPA165. A “Drug Product” is “any product that is subject to an FDA Authorization, or 

any product that is regulated through an over-the-counter drug monograph.” SPA164. API “means any active pharmaceutical ingredient that is used in the 

manufacture of a Drug Product.” Id. 

The injunction also forbids Shkreli from, inter alia, participating in a 

Pharmaceutical Company’s “business decisions”; holding an ownership interest in 

such a company (except indirectly through a diversified mutual fund or similar 

vehicle); or “[t]aking any action to directly or indirectly influence or control the 

management or business” of such a company. SPA-166. A public statement by 

Shkreli may constitute such “action” only if Shkreli intends it to influence or 

Case 22-728, Document 144, 03/27/2023, 3490165, Page27 of 74
19

control the management or business of a Pharmaceutical Company “or if a 

reasonable person would conclude that the statement has that effect.” Id.

Shkreli may, however, accept “Qualified Employment” with a 

Pharmaceutical Company so long as the company “is not primarily involved in the 

research, Development, manufacture, commercialization, or marketing of Drug 

Products or API” and derives less than 10% of its total gross revenues from such 

activities. SPA-165-66. Shkreli must, however, notify the government of his 

intent to accept Qualified Employment, SPA-166-67, and must submit verified 

compliance reports at regular intervals and upon request, SPA-168. Shkreli must 

also participate in interviews and provide information to determine whether he has 

complied with the order. SPA-169. 

The district court overruled Shkreli’s objections that the order was 

impermissibly vague, overbroad, and contrary to the First Amendment, SPA-152-

61, and it denied Shkreli’s motion to stay the permanent injunction pending appeal, 

SUPP-214-29.

SUMMARY OF ARGUMENT

Shkreli does not challenge any of the district court’s detailed factual 

determinations. Those findings prove Shkreli to be a serial recidivist without 

remorse, whose dangerous, incorrigible misconduct persisted even from prison. 

Shkreli is, in short, a poster child for the type of defendant who must be seriously 

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20

restrained in order to protect society. The district court acted well within its 

discretion in prohibiting him from any further participation in the pharmaceutical 

industry, ever. 

1. District courts have equitable authority to impose an “absolute and 

permanent” “quarantine” on a defendant’s future participation in an industry where 

necessary to protect the public. See United States v. Carson, 52 F.3d 1173, 1184-

85 (2d Cir. 1995). This Court thus affirmed “eternal boardroom banishment” for 

securities violators where doing so was “necessary” given their “high degree of 

scienter,” record of similar misconduct, and lack of “assurances against future 

violations.” SEC v. Posner, 16 F.3d 520, 521-22 (2d Cir. 1994). Those 

descriptions fit Shkreli to a T, and he does not argue otherwise. 

Shkreli is wrong that industry bars are improper in FTC Act cases. 

Appellate courts consistently uphold such remedies on records similar to the facts 

here showing systematic, deliberate, or repeated violations, where the trial court 

determines that a more narrowly-crafted injunction would not suffice. See, e.g., 

FTC v. Gill, 265 F.3d 944, 954 (9th Cir. 2001); FTC v. Grant Connect, LLC, 763 

F.3d 1094, 1097-98, 1105 (9th Cir. 2014); FTC v. Pukke, 53 F.4th 80, 99, 101, 110 

(4th Cir. 2022). 

2. The district court’s unchallenged factual findings show that Shkreli is the 

archetype of a recalcitrant wrongdoer for whom a permanent industry bar is 

Case 22-728, Document 144, 03/27/2023, 3490165, Page29 of 74
21

appropriate and necessary. His violations—controlled for years from prison—

were egregious, deliberate, dangerous, and heartless. He recklessly disregarded the 

health of immunocompromised patients with a life-threatening disease. Worst of 

all, he showed no remorse for his actions and is likely to reoffend. 

On that record, the district court had no obligation to restrict its remedy to a 

“narrowly-drawn” injunction that simply forbade Shkreli from repeating specific 

wrongdoing. The law is clear that the court had discretion to stop Shkreli from 

taking even “untraveled roads” to his “prohibited goal” of reaping monopoly 

profits by suppressing drug competition. See Int’l Salt Co. v. United States, 332 

U.S. 392, 400-01 (1947), abrogated on other grounds by Ill. Tool Works Inc. v. 

Indep. Ink, Inc., 547 U.S. 28 (2006). The court’s ruling was especially solid given 

that Shkreli’s predatory behavior grew worse over time. His first forays into 

monopoly profiteering involved blocking generic companies from obtaining 

product samples. In this case, he added the new anticompetitive tactics of 

depriving generics of API and critical sales data. The court was not required to 

give Shkreli the leeway to devise additional schemes for his anticompetitive 

playbook. 

The district court also reasonably decided that a more limited injunction 

would be too difficult to monitor and enforce given Shkreli’s history of inducing 

others to violate the law. Even prison did not stop him from running his scheme. 

Case 22-728, Document 144, 03/27/2023, 3490165, Page30 of 74
22

And given Shkreli’s admitted plan to carry out his schemes “forever,” SUPP-86, 

and “in perpetuity,” SUPP-69, the injunction properly lasts just as long. 

Similarly, the injunction reasonably applies to all drug research and 

development and company ownership. Shkreli enticed co-conspirators to join his 

illegal schemes by promising to involve them in research and development. SPA156. He used his status as Vyera’s largest shareholder to orchestrate the violations

even after leaving his officer and director roles. SPA-160-61. The injunction also 

appropriately forbids Shkreli from involvement with patented, over-the-counter, 

and generic drugs, because he could easily commit the same or analogous 

violations in connection with those types of pharmaceuticals. 

3. The order’s bar on seeking to control or influence a pharmaceutical 

company’s management or business decisions is fully consistent with the First 

Amendment. The provision targets not speech but conduct. The undisputed record 

showed that Shkreli directed corporate behavior through his verbal commands; the 

order forbids Shkreli from making similar commands in the future. The restriction 

is no broader than necessary to protect the public, since Shkreli remains free to 

engage in public commentary so long as his statements are not intended to 

influence a pharmaceutical company’s business decisions. 

4. The permanent injunction complies with the requirements of Rule 65(d). 

Shkreli’s claims to the contrary either mischaracterize the order or ignore specific 

Case 22-728, Document 144, 03/27/2023, 3490165, Page31 of 74
23

guidance provided by the district court. For example, Shkreli claims not to 

understand the meaning of “pharmaceutical industry,” but he raised no objections 

below to this commonly understood term, which the order supports with specific 

definitions of “Pharmaceutical Company,” “Drug Product,” and “API.” The 

injunction is no less understandable than other industry restrictions upheld by this 

Court. The order’s “Qualified Employment” exception answers questions about 

the types of future employment in which Shkreli may engage. 

Shkreli’s true grievance is not with the order’s supposed imprecision, but its 

breadth. The district court had no duty, however, to impose a decree “so narrow as 

to invite easy evasion,” as Shkreli has shown himself highly capable. McComb v. 

Jacksonville Paper Co., 336 U.S. 187, 193 (1949). The court appropriately held 

that a broad remedy was necessary to give complete protection to patients and the 

public and ensure that Shkreli is no longer in a position to exploit them. 

STANDARD OF REVIEW

District courts have “broad authority in crafting ... injunctions,” and 

“appellate review is correspondingly narrow.” Conn. Office of Prot. & Advocacy 

v. Hartford Bd. of Educ., 464 F.3d 229, 245 (2d Cir. 2006) (cleaned up). It is 

“axiomatic that the contours of an injunction are shaped by the sound discretion of 

the trial judge and, barring an abuse of that discretion, they will not be altered on 

appeal.” Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247, 265 (2d Cir. 2014)

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(cleaned up). An abuse of discretion occurs if a district court: “(1) bases its 

decision on an error of law or uses the wrong legal standard; (2) bases its decision 

on a clearly erroneous factual finding; or (3) reaches a conclusion that, though not 

necessarily the product of a legal error or a clearly erroneous factual finding, 

cannot be located within the range of permissible decisions.” EEOC v. KarenKim, 

Inc., 698 F.3d 92, 99-100 (2d Cir. 2012) (cleaned up). 

The Court reviews de novo whether the terms of an injunction meet the 

clarity and specificity requirements of Rule 65(d). City of New York v. Mickalis 

Pawn Shop, LLC, 645 F.3d 114, 143 (2d Cir. 2011). 

ARGUMENT

Shkreli challenges (1) the district court’s authority to issue an injunction 

barring him from an industry; (2) the court’s fact-based decision to do so here; 

(3) the restrictions on Shkreli’s rights of speech; and (4) the clarity of the 

injunction. His claims are unfounded. 

I. COURTS HAVE EQUITABLE DISCRETION TO IMPOSE LIFETIME 

INDUSTRY RESTRICTIONS FOR VIOLATIONS OF THE FTC ACT 

The Supreme Court established long ago that “once the Government has 

successfully borne the considerable burden of establishing a violation of law, all 

doubts as to the remedy are to be resolved in its favor.” United States v. E.I. du 

Pont de Nemours & Co., 366 U.S. 316, 334 (1961). “A Government plaintiff, 

unlike a private plaintiff, must seek to obtain the relief necessary to protect the 

Case 22-728, Document 144, 03/27/2023, 3490165, Page33 of 74
25

public from further anticompetitive conduct and to redress anticompetitive harm,” 

and it has “legal authority broad enough” to accomplish this goal. F. Hoffmann-La 

Roche Ltd. v. Empagran S.A., 542 U.S. 155, 170-71 (2004). 

When a district court enjoins future conduct, its charge is not merely to “end 

specific illegal practices,” but to prohibit the defendant from taking even 

“untraveled roads” to the “prohibited goal.” Int’l Salt Co. v. United States, 332 

U.S. 392, 400-01 (1947), abrogated on other grounds by Ill. Tool Works Inc. v. 

Indep. Ink, Inc., 547 U.S. 28 (2006); accord FTC v. Ruberoid Co., 343 U.S. 470, 

473 (1952); United States v. Apple, Inc., 791 F.3d 290, 339 (2d Cir. 2015). “Acts 

entirely proper when viewed alone may be prohibited.” United States v. U.S. 

Gypsum Co., 340 U.S. 76, 89 (1950). As the Supreme Court put it in the specific 

context of the FTC Act, once a defendant is “caught violating the Act,” he “must 

expect some fencing in.” FTC v. Colgate-Palmolive Co., 380 U.S. 374, 395 (1965)

(cleaned up).

The permanent injunction in this case is consistent with extensive precedent 

under the FTC Act and analogous statutes meant to protect the public. There is no 

merit to Shkreli’s claim that district courts lack power to permanently restrict

participation in an industry, or that “[s]uch matters are normally the province of 

[state] licensing boards” for a “narrow class of professionals.” Br. 39-40. 

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A. This Court Has Sustained Injunctions Permanently Barring 

Wrongdoers From An Industry

This Court has repeatedly affirmed lifetime bans under statutes comparable 

to the FTC Act. In SEC v. Posner, 16 F.3d 520 (2d Cir. 1994), the Court 

confirmed that district courts have “general equitable power[]” to impose “eternal

boardroom banishment” on proven securities-law violators, forbidding them from 

serving as an officer or director of a public company in any industry. Id. at 521-22. 

Posner credited district court findings that this remedy was “necessary to protect 

public investors” given the defendants’ “high degree of scienter,” track record of 

violations, and “lack of assurances against future violations.” Id.

6

 Courts in other 

circuits have relied on Posner when imposing similar lifetime bans. See, e.g., SEC 

v. First Pac. Bancorp, 142 F.3d 1186, 1193-95 & n.8 (9th Cir. 1998). Posner

applies foursquare here given the district court’s uncontested findings that Shkreli 

is a remorseless recidivist whose violations were deliberate. See supra pp. 15-16. 

Likewise, in the civil RICO case United States v. Carson, 52 F.3d 1173 (2d 

Cir. 1995), this Court upheld, under general equity principles, an “absolute and 

permanent” “quarantine” on the defendant working for or even joining a labor 

organization. Id. at 1184-85. The Court credited the district court’s finding that a 

6 Although the SEC now has explicit statutory authority to seek a director-andofficer ban in district court, see 15 U.S.C. §§ 77t(e) & 78u(d)(2), the violations in 

Posner occurred before that authority went into effect, so the ruling rested on 

common-law equity principles. 16 F.3d at 521. 

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narrower ban on assuming positions of union leadership would have been 

ineffectual given the defendant’s history of using his organized crime ties to create 

a “climate of fear” within unions. Id. at 1185. The Court had earlier affirmed a 

lifetime ban on participation in the waste carting industry as a remedy for civil 

RICO violations involving bribery to maintain control of that industry on Long 

Island. United States v. Private Sanitation Industry Ass’n of Nassau/Suffolk, Inc., 

995 F.2d 375, 377 (2d Cir. 1993). 

Shkreli argues that civil RICO cases are inapposite because that statute 

expressly authorizes courts to “impos[e] reasonable restrictions on the future 

activities” of violators and bar them “from engaging in the same type of endeavor 

as the enterprise engaged in.” Br. 41, quoting 18 U.S.C. § 1964(a). But Carson

relied on general principles of equity, supported by precedent upholding permanent 

injunctions in SEC and CFTC cases under statutes nearly identical to Section 13(b) 

of the FTC Act. See Carson, 52 F.3d at 1184 (discussing, e.g., SEC v. Manor 

Nursing Ctrs., Inc., 458 F.2d 1082, 1100 (2d Cir. 1972)). Compare 15 U.S.C. 

§ 53(b) with 15 U.S.C. §§ 77t(b) & 78u(d)(1) and 7 U.S.C. § 13a-1(b). 

Moreover, the text of civil RICO does not distinguish that statute from the 

FTC Act or other statutes authorizing injunctions. All prohibitory injunctions seek 

to “restrain acts which are of the same type or class as unlawful acts which the 

court has found to have been committed or whose commission in the future, unless 

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28

enjoined, may fairly be anticipated from the defendant’s conduct in the past.” 

NLRB v. Express Publ’g Co., 312 U.S. 426, 435 (1941). Carson directly held that 

under civil RICO, equitable jurisdiction is limited to “preventing and restraining 

future violations” rather than punishing past violations, 52 F.3d at 1182 (cleaned 

up), which is the same as under the FTC Act.7

 

Shkreli likewise is wrong to claim that a district court may not “enjoin 

lawful conduct.” See Br. 39, 44 (citing Mickalis Pawn, 645 F.3d at 144-45). In 

Mickalis Pawn, this Court vacated injunctions that required gun sellers to “adopt[] 

appropriate prophylactic measures to prevent violation[s] of the firearms laws,” 

645 F.3d at 142, since, contrary to Rule 65(d), they would have forbidden 

“unidentified types of sales practices” without explaining what those practices 

were or why they were related to those found unlawful, 645 F.3d at 145; see infra 

pp. 56-62 (explaining why the injunction here comports with Rule 65(d)). The 

Court did not forbid district courts from imposing injunctions that applied to lawful 

conduct when appropriately tailored to the violations at issue. 

Moreover, Mickalis Pawn did not overrule the many Supreme Court 

precedents holding that an injunction may restrain otherwise-lawful conduct

7 Shkreli also claims that civil RICO cases are not analogous because they 

involve “criminality” and “safeguards such as the right to a jury trial.” Br. 41-42. 

But the ban in Carson was imposed following a non-jury trial after the defendant’s 

criminal conviction had been overturned. See 52 F.3d at 1178-79. 

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(discussed at pages 24-25 above), nor did it abrogate (or mention) Posner, Carson, 

or Private Sanitation, all of which upheld this sort of injunction. Indeed, soon after 

Mickalis Pawn, this Court affirmed an antitrust remedy requiring Apple to give all

e-books the “same terms and conditions as other applications” in its App Store, 

holding that this restriction on otherwise-lawful conduct was needed to prevent 

“circumvent[ion]” of a narrower injunction. Apple, 791 F.3d at 339. 

B. Serious, Deliberate, Or Repeated FTC Act Violations Merit 

Serious Remedies

Lifetime industry prohibitions are a bedrock remedy for FTC Act violations 

when lesser restrictions will not suffice. Shkreli argues that under the FTC Act, 

injunctions are “usually” limited to certain “conduct” and do not “necessarily” bar 

defendants “from an entire category of goods.” Br. 42. Although Shkreli claims 

that “the term ‘industry ban’ is often a misnomer” in FTC Act cases, id., he 

overlooks extensive case law upholding precisely that remedy. 

For example, the Ninth Circuit affirmed a permanent ban on a defendant 

“participating in any aspect of the credit repair business.” FTC v. Gill, 265 F.3d 

944, 954 (9th Cir. 2001) (emphasis added). Gill credited the district court’s 

finding that the defendants posed a “real likelihood of recurring violation” given 

their “systematic” misdeeds and flouting of a preliminary injunction. Id. at 957. 

The court rejected the defendants’ argument that the district court should have 

enjoined them from repeating their past violations without banning them from the 

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industry; it found “no basis for disturbing the district court’s prudent assessment 

that giving Defendants another chance might prove to be unwise.” Id.;8 see also 

FTC v. AMG Capital Mgmt., LLC, 910 F.3d 417, 422, 428 (9th Cir. 2018)

(upholding permanent ban on “engaging in consumer lending”), rev’d on other 

grounds, 141 S. Ct. 1341 (2021). 

Indeed, appellate courts in FTC cases have upheld orders permanently 

banning a defendant from several entire industries. The Ninth Circuit, for 

example, affirmed an order proscribing the defendant from “engaging in ... 

negative-option marketing, continuity programs, preauthorized electronic fund 

transfers, the use of testimonials, and marketing or selling products related to 

grants, credit, business opportunities, diet supplements, or nutraceuticals.” FTC v. 

Grant Connect, LLC, 763 F.3d 1094, 1097-98 (9th Cir. 2014). The court rebuffed 

the defendant’s contention that the injunction should be limited to his “specific bad 

acts.” Id. at 1105. The defendant had “consistently engaged in variations on the 

same deceptive marketing scheme,” and those practices were “easily transferable 

both to new product lines and to new modes of communications with consumers.” 

Id. 

8 Shkreli notes that Congress has provided for administrative debarment before 

the FDA of pharmaceutical officers convicted of crimes. See Br. 40 (citing 21 

U.S.C. § 335a(a)-(b)). But nothing in that statute curtails a district court’s power 

to impose injunctive relief for violations of the FTC Act or other federal laws. 

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Similarly, the Fourth Circuit recently sustained permanent injunctions 

barring the defendants “from engaging in any real estate ventures” and “from any 

involvement in telemarketing.” FTC v. Pukke, 53 F.4th 80, 99, 101 (4th Cir. 

2022). The court “summarily rejected” the argument that these injunctions were 

“overly broad,” stressing that the defendants committed “extensive 

misrepresentations regarding telemarketing and the sale of real estate intertwined 

with the promotion of goods and services.” Id. at 110. The injunctions were thus 

“appropriately tailored to prevent similar scams in the future.” Id.; accord FTC v. 

Lalonde, 545 F. Appx. 825, 831, 841 (11th Cir. 2013) (upholding permanent ban 

“from the mortgage, credit repair, loan modification, and telemarketing 

businesses” due to “repeated fraudulent and unlawful conduct”); CFPB v. 

Nesheiwat, No. 21-56052, 2022 WL 17958636, at *2-3 (9th Cir. Dec. 27, 2022)

(affirming ban on “engaging in debt relief, mortgage loans, and telemarketing 

services, and obtaining consumer data” as a remedy for “blatant” violations in 

those industries) (citation omitted). 

Likewise, district courts, including within this Circuit, have regularly 

imposed lifetime industry bans as remedies for systematic, deliberate, or repeated 

FTC Act violations. See, e.g., FTC v. Micom Corp., No. 96-0472, 1997 WL 

226232, at *2, 4 (S.D.N.Y. Mar. 12, 1997) (Sotomayor, J.) (permanent ban on 

promoting, advertising, or selling services or investment offerings that involve 

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32

U.S. government licenses or permits); FTC v. Five-Star Auto Club, Inc., 97 F. 

Supp. 2d 502, 536-37 (S.D.N.Y. 2000) (“a prohibition on all multi-level marketing 

is appropriate”). 

Shkreli gets no help from his charge that industry restrictions are improper 

“in the antitrust context.” Br. 43. Corporate dissolution, which is more drastic 

than an industry-specific bar, is a traditional remedy for antitrust violations. See, 

e.g., E.I. du Pont, 366 U.S. at 329. And courts have upheld industry bans in 

antitrust cases. See Ford Motor Co. v. United States, 405 U.S. 562, 575-78 (1972)

(upholding 10-year ban on Ford’s manufacture of spark plugs for an 

anticompetitive acquisition in that industry); United States v. AT&T Co., 552 F. 

Supp. 131, 185, 223-24 (D.D.C. 1982) (banning AT&T and local bell operating 

companies from various industries, “[s]ince under the Sherman Act, it is 

appropriate to bar a company from a market if the restriction is necessary to permit 

the development of competition in that market”), aff’d sub nom. Maryland v. 

United States, 460 U.S. 1001 (1983). 

Shkreli’s sole authority, Mallet & Co. v. Lacayo, 16 F.4th 364 (3d Cir. 

2021), is not even an antitrust case. There, Mallet sued two ex-employees and 

their new employer for misappropriation of trade secrets and won a preliminary 

injunction barring the defendants from competing against Mallet. Id. at 376-78.

The Third Circuit reversed, holding that appellate review was impossible because 

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the district court had failed to specify which trade secrets were misappropriated or 

what conduct was forbidden. Id. at 385-89. The appeals court recognized that a 

“total production ban” is sometimes permissible, and held merely that the remedy 

was “not supported on the present record.” Id. at 389. Mallet also involved 

protection of a business rival, not the general public, which deserves a greater 

scope of judicial protection. See, e.g., Apple, 791 F.3d at 339. 

II. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION 

WHEN IT BARRED SHKRELI FROM THE PHARMACEUTICAL 

INDUSTRY

The district court acted comfortably within its discretion when it imposed a 

lifetime restraint on Shkreli’s future participation in the pharmaceutical industry

based on the evidence presented at the seven-day bench trial. Shkreli concedes 

that he should be subject to an injunction, Br. 49, but argues that the court could 

not properly impose an injunction that ran longer than five years or was broader 

than his characterization of the specific violations he committed in this case: 

“attempting to impair generic alternatives to commercially available non-patented 

drugs.” Br. 60-61. 

These arguments miss the mark. The district court reasonably held, based 

on controlling precedent and roughly 70 pages of unchallenged factual findings, 

that (1) a lifetime industry bar was necessary to protect the public from the risk of 

egregious, deliberate, and recurrent violations by Shkreli in the pharmaceutical 

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34

industry, and (2) a more narrowly-crafted injunction would not provide adequate 

protection against those risks. Shkreli has not met his “heavy burden” to show

abuse of discretion. Posner, 16 F.3d at 521 (quotation omitted). 

A. The District Court Properly Weighed The Relevant Equitable 

Considerations 

District courts consider the following factors when deciding whether to grant 

injunctive relief: 

[1] the fact that defendant has been found liable for illegal conduct; 

[2] the degree of scienter involved; [3] whether the infraction is an 

“isolated occurrence”; [4] whether defendant continues to maintain 

that his past conduct was blameless; and [5] whether, because of his 

professional occupation, the defendant might be in a position where 

future violations could be anticipated.

SEC v. Commonwealth Chem. Secs., Inc., 574 F.2d 90, 100 (2d Cir. 1978) (citation 

omitted); see also SEC v. Frohling, 851 F.3d 132, 139 (2d Cir. 2016); SEC v. 

Universal Major Indus. Corp., 546 F.2d 1044, 1048 (2d Cir. 1976). 

Applying these factors, the district court found that: (1) Shkreli’s violations 

were not only illegal but egregious and recklessly disregarded the health of 

immunocompromised patients facing a life-threatening disease; (2) his violations 

were intentional; (3) he has a long track record of similar conduct; (4) he has 

shown no contrition and has never taken accountability for his misdeeds; and (5) 

he is well positioned to reoffend. See SPA-138-43. Shkreli challenges none of 

these facts, see Br. 4 n.3, and the district court was justified in finding that they 

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establish a grave threat of future violations that could be prevented only with a 

lifetime ban. 

1. Shkreli’s Violations Were Egregious And Threatened

Public Health 

The district court found that Shkreli committed “egregious,” “long-running,” 

and “ultimately dangerous” antitrust violations. SPA-140. Over the course of 

several years, Shkreli “heartless[ly]” and “coercive[ly]” exploited 

immunocompromised patients who needed Daraprim, in some instances to treat a 

brain infection that could kill them within hours; raised the price of the drug to a 

“scandalous level” (by 4,000%); and deprived them of access to lower-cost generic 

drugs. SPA-22, 127, 141. In the process, Shkreli “cynically” exploited the FDA’s 

“regulatory scheme designed to protect the health of a nation by ensuring that its 

population has access to drugs that are not only effective but also safe.” SPA-141. 

Shkreli’s egregious conduct proven at trial—coupled with his history of engaging 

in similar conduct and total lack of remorse—signal that he likely would never, as 

a pharmaceutical executive, place legal or ethical duties above profits.

In the face of egregious misconduct that is likely to recur, a district court has 

a duty to “ensur[e] that [the wrongdoer] is no longer in a position to continue” his 

violations. KarenKim, 698 F.3d at 94, 100-01 (reversing district court’s refusal to 

enter comprehensive injunctive relief for “egregious acts of sexual harassment”). 

The district court reasonably concluded that a lifetime prohibition from the 

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pharmaceutical industry was necessary to ensure that Shkreli is no longer in a 

position to commit anticompetitive harm at patients’ expense. See SPA-141-43. 

Shkreli calls the lifetime bar “overpowered,” claiming that the bribery

violations by organized crime figures in Carson and Private Sanitation were “far 

more extreme” than his own. Br. 41. But the district court’s findings—which he 

does not appeal (Br. 4 n.3)—that Shkreli’s violations were egregious, deliberate, 

heartless, repetitive, dangerous, and likely to recur, repudiate any such distinction. 

2. Shkreli’s Violations Were Intentional

In Posner, this Court sustained a lifetime ban on serving as an officer or 

director in any industry on a finding that the defendants violated securities laws

with a “high degree of scienter.” 16 F.3d at 521. The same goes here. The district 

court found that “Shkreli does not dispute that he intended to block generic 

competition to Daraprim and strove to do so for as long as possible.” SPA-125; 

see also SPA-115-16. He “frankly and repeatedly acknowledged that his goal was 

to delay entry of a generic competitor with Daraprim for at least three years.” 

SPA-136-37. Shkreli also “recklessly disregarded the health of a particularly 

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vulnerable population, those with compromised immune systems.” SPA-141. 

Shkreli does not deny that he acted with a culpable mental state.9

3. Shkreli’s Violations Were Repeated 

The lifetime ban is also warranted by Shkreli’s track record of similar 

misconduct. As Carson explained when upholding a lifetime ban, “[c]ourts are 

free to assume that past misconduct is highly suggestive of the likelihood of future 

violations. When the violation has been founded on systematic wrongdoing, rather 

than an isolated occurrence, a court should be more willing to enjoin future 

misconduct.” 52 F.3d at 1184 (cleaned up); accord Posner, 16 F.3d at 521-22; 

Grant Connect, 763 F.3d at 1105; Gill, 265 F.3d at 957. 

The district court found, and Shkreli no longer contests, that he has engaged 

in a long pattern of anticompetitive behavior. He employed his business model for 

Daraprim with two earlier drugs, Chenodal and Thiola. See supra pp. 5-6. The 

conduct and anticompetitive consequences were similar. 

9 Amicus curiae Pensmore Foundation acknowledges that Shkreli’s conduct 

“may well have been” “egregious” and “deliberate,” but argues that his restrictions 

on distributors selling product samples to generic companies were “arguabl[y] 

legal.” Pensmore Br. 14, 21-26. Shkreli himself makes no such argument, and an 

amicus may not expand the issues before the Court. The argument fails anyway. 

Although a seller generally has a right to unilaterally refuse to deal with rivals, a 

seller may not “destroy [his] dealers’ independent discretion through restrictive 

agreements.” United States v. A. Shrader’s Son, Inc., 252 U.S. 85, 99 (1920). 

Moreover, Shkreli also broke the law when he conspired to block competitor 

access to API, which Pensmore does not challenge. 

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Shkreli now appears to concede that this recidivist behavior “persist[ed] for 

several years,” but argues that this supports a “narrowly-drawn” injunction because 

his misconduct all fits within the same “pattern.” Br. 38-39 (emphasis added); see

also Br. 34. Shkreli is wrong on both the law and the facts. As a legal matter,

injunctions in public-enforcement actions are not limited to “a simple proscription 

against the precise conduct previously pursued.” Nat’l Soc. of Prof’l Eng’rs v. 

United States, 435 U.S. 679, 698 (1978). Rather, a district court may ban the 

defendant even from taking “untraveled roads” to the “prohibited goal.” Int’l Salt, 

332 U.S. at 400. Shkreli’s “prohibited goal” was to reap monopoly profits by 

suppressing drug competition at the expense of patients, their families, and those 

who pay for their treatment. Especially given the egregious and persistent nature 

of Shkreli’s misconduct, the district court was empowered to close all roads to this 

goal by banning him from involvement with any FDA-regulated drug products. 

Indeed, contrary to Shkreli’s position, the Daraprim conduct was worse than 

his prior market exploitations. At Retrophin, Shkreli blocked generic companies 

from securing product samples. At Vyera, Shkreli additionally prevented generic 

companies from obtaining the essential ingredient needed to manufacture 

competing products and obscured the sales data needed to assess the market

opportunity for a generic substitute to Daraprim. The district court did not need to 

wait until Shkreli expanded his anticompetitive repertoire even further.

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4. Shkreli Has Failed To Accept Responsibility For His 

Actions

Shkreli has shown no contrition and provided no assurances against future 

wrongdoing. As this Court explained when affirming the lifetime director-andofficer ban in Posner, the defendants’ “lack of assurances against future violations 

demonstrated that such violations were likely to continue.” 16 F.3d at 521-22. 

The district court found that “in the face of public opprobrium, Shkreli 

doubled down. He refused to change course and proclaimed that he should have 

raised Daraprim’s price higher.” SPA-141. In written testimony, he expressed no 

“remorse or any awareness that his actions violated the law” and denied 

responsibility for all aspects of the scheme even though he conceived of and 

spearheaded it. SPA-142; see also supra p. 16 & n.5 (discussing that testimony). 

Shkreli challenges none of these findings, which amply confirm his high likelihood 

of reoffending. 

5. Shkreli’s Control Of The Violations From Prison Signals 

That He Would Circumvent A Narrower Injunction

The district court also justified the lifetime ban by citing Shkreli’s continued 

control of the anticompetitive scheme from prison, including through use of a 

contraband cell phone. See supra p. 17. As the court put it, “Shkreli has 

demonstrated that he can and will adapt to restrictions,” thwarting the effectiveness 

of a narrower injunction. SPA-143. 

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Indeed, the district court found in a pre-trial order that Shkreli used his 

contraband phone “to discuss highly relevant company business and ... knew in 

doing so that those communications should have been but would not be preserved. 

Shkreli’s use of the Prison Phone to discuss business development constitutes 

intentional spoliation and warrants sanctions.” SUPP-212. Shkreli’s intentional 

disregard of his legal responsibilities underscores the need for a broad and readily 

administrable form of injunctive relief.10 

6. The Lifetime Bar Is Not Unduly Burdensome

Finally, although public equities trump private ones, courts may consider 

“the adverse effect of an injunction upon defendants.” Manor Nursing, 458 F.2d at 

1102. The district court found that given Shkreli’s background as a hedge fund 

professional with a business degree, SPA-40, the “lifetime ban would not deprive 

Shkreli of the opportunity to practice a profession or to exercise a lawful skill for 

which he trained.” SPA-141-42. In other words, it is not as though Shkreli is a 

career pharmaceutical executive with no other prospects. That finding was sound, 

and Shkreli does not dispute it on appeal. 

10 With this appeal pending, Shkreli announced the formation of a new company, 

Druglike, a “software platform” that seeks to “disrupt the economics of the drug 

business” by helping users “profit from drug discovery,” including for “rare 

diseases.” See SUPP-231. After several months of unfulfilled requests, the 

government recently obtained additional information from Shkreli about this 

venture and is investigating whether it violates the injunction. 

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Before founding Retrophin, Shkreli had no experience working in the 

pharmaceutical industry. SUPP-125; see SPA-40. Even in that sector, Shkreli 

focused on acquiring drugs without patent protection that were the sole treatment 

for rare and life-threatening diseases, raising the prices, and blocking generic 

competition. SPA-40-43. This oft-repeated business model was unlawful, and one 

“can have no vested interest in a business activity found to be illegal.” United 

States v. Diapulse Corp. of Am., 457 F.2d 25, 29 (2d Cir. 1972) (quotation 

omitted). Since Shkreli’s pharmaceutical experience was tied to the illegitimate 

business model, a prohibition from future participation in the industry may impose 

minimal burdens on him. 

B. The District Court Properly Concluded That A Narrower 

Remedy Would Not Protect The Public 

The district court properly determined that a more narrowly-crafted 

injunction would not likely “succeed in providing adequate protection against a 

repetition of illegal conduct.” SPA-143. Shkreli challenges none of the court’s 

factual findings, but he makes various legal claims that the injunction is overbroad, 

some for the first time on appeal. The arguments all fail. The court appropriately 

tailored its injunction to provide the public with complete protection from the 

threat of future violations by Shkreli. 

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1. The District Court Appropriately Declined To Limit The 

Injunction To Specific Types Of Conduct

Shkreli argued below that the court could ban him from “[e]xclusive supply 

agreements, restricted distribution agreements, [and] data blocking agreements,” 

but not from the whole industry. A-2289; see also Br. 37-39 (arguing that ban 

should be limited to “particular kinds of conduct”). Given the egregious, 

intentional, and dangerous nature of Shkreli’s violations, SPA-140, along with his 

ability to continue orchestrating the scheme from prison, SPA-143, the court found 

that anything less than an industry restriction would pose a “very real risk” that 

Shkreli would continue to engage in illegal activities “by working through others 

employed in the industry, as he has done while incarcerated.” SPA-159. 

The district court had no duty to issue a narrower, conduct-specific 

injunction against a defendant who had induced others to violate the antitrust laws, 

pulling the strings behind the scenes and deliberately spoliating evidence of his 

involvement. See supra pp. 17, 39-40. That record creates a “necessity [for] 

decrees that are not so narrow as to invite easy evasion.” McComb v. Jacksonville 

Paper Co., 336 U.S. 187, 193 (1949); see Grant Connect, 763 F.3d at 1105

(upholding district court’s refusal to impose narrow, conduct-specific injunction 

given defendants’ history of recalcitrance); Gill, 265 F.3d at 957 (same). Shkreli 

argues that a broad injunction was unwarranted because a “wider fence” is not 

“harder to jump.” Br. 49. But given Shkreli’s history of violating the antitrust 

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laws, exploiting patients, and evading restrictions, the district court was justified in 

imposing a “fence” wide enough that Shkreli could not simply walk around it. 

An industry-wide restriction is far easier to monitor than conduct-specific 

prohibitions, especially when it comes to unrepentant recidivists who lack regard 

for behavioral norms. The government can readily determine, for example,

whether Shkreli owns, directs, works for, or consults with a pharmaceutical 

company. It cannot so easily perceive a behind-the-scenes role in company 

decision-making. If Shkreli were employed at a drug company engaged in 

anticompetitive behavior, the government may have no way to ascertain his 

involvement without extensive investigation. And even then, Shkreli may be able 

to evade detection by purposefully avoiding a paper trail or by using an off-thebooks burner phone as he did in this case. Accordingly, the district court was 

justified in believing that a conduct-specific injunction would be too difficult to 

effectively monitor and enforce.11 

Shkreli complains that the industry bar would prevent him from “being a 

subject in a clinical trial” or “taking a job as a cashier at Walgreens.” Br. 58. But 

11 The government did not, as Shkreli claims, justify the industry bar based on 

“general deterrence.” Br. 37. The government argued that “a conduct-specific

injunction that would allow Mr. Shkreli’s continued participation in the 

pharmaceutical industry would be more difficult to monitor and enforce and would 

not be sufficient to protect consumers” from Shkreli repeating his “reprehensible 

conduct.” A-2240.

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any broad injunctive remedy is subject to hypotheticals involving activities that do 

not seem inherently harmful.12 For instance, the defendant in Carson could have 

complained that the labor-industry ban prevented him from volunteering for a 

human-rights group that opposes child labor. If Shkreli can show that the order is 

burdening his bona fide objective of becoming a Walgreens cashier, he can request 

modification for those limited purposes. But, as the Supreme Court has explained, 

“it would not be good judicial administration to strike” provisions from an order 

“to meet a hypothetical situation” when defendants can raise their claims “in 

evidentiary form” by filing a motion to modify the injunction as the need arises. 

Int’l Salt, 332 U.S. at 401; accord FTC v. Nat’l Lead Co., 352 U.S. 419, 431

(1957). At this point, the district court could properly conclude that the public 

needs the protection and prophylactic benefits of a broad injunction more than 

Shkreli needs the hypothetical ability to work at Walgreens. This is especially true 

given Shkreli’s decision not to appeal the district court’s factual finding that the 

injunction would not burden him. See supra pp. 16, 40-41. 

12 Shkreli’s Walgreens hypothetical would have applied equally in Grant 

Connect, where the Ninth Circuit upheld a ban on (among other things) marketing 

or selling dietary supplements. See supra pp. 30. 

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2. The District Court Properly Barred Shkreli From 

Pharmaceutical Research And Development And Company 

Ownership 

Shkreli objects that the injunction should not extend to pharmaceutical 

research and development or drug company ownership. See Br. 45-46, 49-50; 

SPA-166 (Permanent Injunction, ¶¶ II.A, II.C & II.F). The district court did not 

abuse its discretion in rejecting these arguments. 

The district court found that Shkreli was “wrong to suggest that 

pharmaceutical research and development activities ... were not among the 

conduct at issue in this case.” SPA-156. Shkreli “used the promise that Vyera 

would engage in research and development activities to recruit Vyera executives 

and to induce one of the restrictive supply agreements at issue.” Id. Specifically, 

Vyera told Fukuzyu that if it agreed not to sell API to generic companies, Vyera 

would work with Fukuzyu on future research projects. SPA-62. Shkreli also 

sought to justify his violations by arguing that he needed “supracompetitive profits 

to fund such research and development work.” SPA-156.

On appeal, Shkreli does not challenge these findings or argue that they do 

not support an industry ban. Instead, Shkreli falsely states that the “district court 

did not purport to explain” why the ban included research and development. Br. 

46. The district court offered such an explanation, SPA-156, and Shkreli has 

forfeited his right to contest it. 

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The district court also acted properly by banning Shkreli from acquiring or 

owning an interest in a drug company (except through a diversified mutual fund or 

similar vehicle). SPA-166 (Permanent Injunction, ¶¶ II.C & II.F). Shkreli again 

attacks these provisions (Br. 49-50) while ignoring the district court’s reasoning. 

As the court found, “Shkreli used his position as the largest Phoenixus [Vyera’s 

parent company] shareholder to exert control over it and Vyera’s operations even 

after he had given up all formal role in the companies’ operations.” SPA-160-61. 

He wielded that control to “orchestrate[] [the companies’] violation of the antitrust 

laws.” Id. The order’s restrictions on ownership thus “arise[] directly from the 

violations of law found at trial.” Id. 

Shkreli asserts that the court should not have banned him from passive stock 

ownership, Br. 17, 50 & n.16, but given his history of using others to do his 

bidding—and threatening or retaliating against them should they refuse, see supra

p. 17—the court was justified in prohibiting Shkreli even from holding non-voting 

shares in a pharmaceutical company. Requiring Shkreli to divest his Vyera 

holdings is also consistent with the public interest in ensuring that Shkreli be 

“denied future benefits from [his] forbidden conduct.” Gypsum, 340 U.S. at 89. 

3. Shkreli Forfeited The Claim That The District Court 

Improperly Banned Him From Various Industry “Sectors” 

As noted, Shkreli’s counsel conceded at trial that if the district court found 

him liable, it could ban him from exclusive supply agreements and distribution 

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restrictions. A-2289. On appeal, Shkreli reverses course, arguing for the first time 

that the district court was powerless to ban him from any activities involving 

various “sector[s]” of the industry, including patented drugs, over-the-counter

(OTC) drugs, generic drugs, and drugs with established competitors. Br. 44-49. 

Shkreli deceptively attacks the district court for “ma[king] no findings” about these 

objections. Br. 46-47. He raised no such claims below and may not do so now. 

Even if these objections had been raised below, they backfire, since they 

show just how easily Shkreli can adapt the misdeeds proven at trial to other 

settings in the pharmaceutical industry. See Grant Connect, 763 F.3d at 1105

(industry ban proper where violations were “transferable” to “new product lines”). 

Shkreli claims (for the first time on appeal) that because Daraprim had no patent 

protection, the district court lacked authority to ban him from activities involving 

patented drugs. Br. 46. But the mere existence of a patent changes nothing, since 

that patent “may or may not be valid, and may or may not be infringed.” FTC v. 

Actavis, Inc., 570 U.S. 136, 147 (2013). Shkreli thus could have committed the 

exact same violations to destroy generic competition even if he had held a

(possibly invalid or non-infringed) patent. 

Besides, patents do not give their holders carte blanche to commit antitrust 

violations, as Shkreli seems to assume. Patentholders can unlawfully stifle generic 

competition in various ways, including by: 

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• paying generic rivals to drop their challenge to the patents and stay off the 

market, see id. at 153-59; 

• pursuing “sham” patent litigation against those rivals, see In re DDAVP 

Direct Purchaser Antitrust Litig., 585 F.3d 677, 694-95 (2d Cir. 2009); and 

• engaging in “product-hopping,” i.e., “withdrawing a successful drug from 

the market and introducing a reformulated version of that drug” for the 

purpose of “impeding generic competition,” see New York ex rel. 

Schneiderman v. Actavis PLC, 787 F.3d 638, 659 (2d Cir. 2015). 

The district court was entitled to believe that Shkreli poses a substantial threat of 

such violations given his propensity for anticompetitive conduct, his willingness to 

exploit the FDA’s regulatory scheme and pay off industry members to maintain his 

monopoly, and his disregard for patients and the medical system. 

Next, Shkreli argues for the first time that the district court should not have 

banned him from OTC drugs, Br. 47, but he fails to explain why he would pose 

any lower risk of committing antitrust violations in that setting. Drugmakers can 

violate the antitrust laws by harming generic competition for OTC drugs just as 

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they can for prescription drugs.13 Moreover, OTC drugs require active 

pharmaceutical ingredients just as prescription ones do, which means that Shkreli 

could replicate the Daraprim scheme in that arena, too. 

Shkreli also claims for the first time that the district court should not have 

banned him from working for a generic company, or for any drug company with 

“established” rivals. Br. 47, 49. But this Court has held that generic companies 

can harm competition by entering exclusive-supply agreements to block rivals 

from obtaining essential ingredients, just as Shkreli did here. See Geneva Pharms. 

Tech. Corp. v. Barr Labs., Inc., 386 F.3d 485, 504-10 (2d Cir. 2004). Generic 

companies may also, for example, collude with a brand-name company to split the 

brand’s monopoly profits rather than competing, see Impax Labs., Inc. v. FTC, 994 

F.3d 484, 489, 493-500 (5th Cir. 2021), or engage in price-fixing, see In re 

Generic Pharms. Pricing Antitrust Litig., 394 F. Supp. 3d 509, 529 (E.D. Pa. 

2019). All these sorts of violations may occur in a market with rivals that are 

established rather than incipient. The district court had reason to believe that 

13 See, e.g., URL Pharma, Inc. v. Reckitt Benckiser, Inc., No. 15-505, 2015 WL 

5042911 at *7-9 (E.D. Pa. Aug. 25, 2015) (plaintiff sufficiently pleaded unlawful 

monopolization by alleging that manufacturer of OTC Mucinex induced generic 

rival to delay entry by promising to furnish supply for a licensed generic and then 

reneging on that commitment). 

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Shkreli posed a threat to such markets given his history of conspiring with or

paying off market participants in order to sustain artificially high monopoly prices. 

4. The District Court Properly Imposed The Injunction For 

Shkreli’s Lifetime

Shkreli calls the lifetime duration of the injunction an abuse of discretion, 

Br. 54-56, but challenges none of the district court’s factual findings underlying it. 

See SPA-140-43. Although Shkreli argues that the district court was legally

required to place a “time limit” on injunctive relief, Br. 54, this Court and others 

have routinely upheld permanent restrictions after applying the same factors that 

the district court considered here. See supra pp. 26-32. 

Shkreli asserts (Br. 39, 55) that the Eighth Circuit required a time limit for 

injunctive relief in ES Development, Inc. v. RWM Enterprises, Inc., 939 F.2d 547 

(8th Cir. 1991), but the factbound reasoning in that case is inapposite. Several car 

dealers violated the Sherman Act by orchestrating a coordinated campaign to 

oppose the development of an auto mall that would have housed competing 

dealerships. Id. at 556-57. The Eighth Circuit upheld the district court’s decision 

to ban the dealers from communicating with their respective manufacturers 

regarding the mall, but held that the injunction should have had a reasonable time 

limit, such as three years. Id. at 557-59. The decision has little pertinence here 

because the violation involved a discrete set of events targeted at a specific and 

time-limited construction project. In that situation, the court explained, “the 

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continuing effects of the conspiracy are certain to recede with time.” Id. at 558;

accord EEOC v. AutoZone, Inc., 707 F.3d 824, 841-44 (7th Cir. 2013) (requiring 

district court to put a “reasonable time limit” on a follow-the-law injunction whose 

perpetual scope was disproportionate to a violation committed against a single 

employee). 

The district court here, in sharp contrast, found that the threat Shkreli poses 

to drug markets and patients is perpetual, SPA-141, and he provides no good 

ground to second guess that judgment. Shkreli spent his pharmaceutical career 

scheming to deprive patients of essential generic drugs and pocket outsized 

monopoly profits. Shkreli directly admitted that he sought to victimize patients 

this way “forever,” SUPP-86, and “in perpetuity,” SUPP-69. Beyond that, he has 

shown no remorse for his conduct. Just as Shkreli planned to perpetuate his 

monopolistic pricing schemes “forever,” the district court properly determined that

this is how long the injunction must last. 

III. THE INJUNCTION DOES NOT INFRINGE SHKRELI’S FIRST 

AMENDMENT RIGHTS

The injunction prohibits Shkreli from “[t]aking any action to directly or 

indirectly influence or control the management or business of any Pharmaceutical 

Company” and clarifies that Shkreli’s “public statements about a Pharmaceutical 

Company” constitute such action if he “intended the statement” to influence or 

control such a company “or if a reasonable person would conclude that the 

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52

statement has that effect.” SPA-159-60, 166 (¶ II.D) (emphasis added). Shkreli

contends that this protective measure is an impermissible restriction on his right to 

free speech. See Br. 50-54. But the provision targets Shkreli’s conduct—

controlling or influencing a drug company’s business decisions—and makes clear 

that Shkreli cannot sidestep the order’s requirements by telling others to engage in 

actions that he is barred from performing directly. Because this provision is 

necessary to protect the public from the risk of Shkreli repeating his antitrust 

misconduct by directing or encouraging others to violate the law—just as he did 

with Daraprim from prison—this provision passes First Amendment muster. 

Virtually every antitrust violation has an “expressive component,” since the 

participants use speech to collude or carry out boycotts. See FTC v. Superior 

Court Trial Lawyers Ass’n, 493 U.S. 411, 431 (1990). Even so, the First 

Amendment poses no obstacle to complete injunctive relief for antitrust violations, 

provided that the injunction “represents a reasonable method of eliminating the 

consequences of illegal conduct.” Prof’l Eng’rs, 435 U.S. at 698. An industry

restriction—or any injunction proscribing future conduct—would be toothless if a 

defendant could bypass it by telling or encouraging others to engage in the 

prohibited actions. This Court thus rejected a First Amendment challenge to an 

order banning the defendant from involving herself in corporate “management or 

operations,” including by speaking with officers, directors, employees, and agents

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to “express[] her opinions” on how the company “is being run.” Peregrine 

Myanmar, Ltd. v. Segal, 89 F.3d 41, 52 (2d Cir. 1996). Here, the injunction’s 

restriction on Shkreli using speech to control or influence drug-company business 

decisions functions to prevent evasion and is no broader than necessary to do so. 

Shkreli remains free to engage in scientific, economic, political, or other 

commentary so long as his statements are not calibrated to sway a pharmaceutical 

company’s business decisions. 

The need for this provision is especially acute since Shkreli controlled the 

Daraprim violations for years from prison, exclusively by telling others what to do. 

The First Amendment offered Shkreli no protection then, since “it has never been 

deemed an abridgement of freedom of speech or press to make a course of conduct 

illegal merely because the conduct was in part initiated, evidenced, or carried out 

by means of language, either spoken, written, or printed.” Giboney v. Empire 

Storage & Ice Co., 336 U.S. 490, 402 (1949). “[T]he First Amendment provides 

no defense to persons who have used otherwise protected speech or expressive 

conduct to force or aid others to act in violation of a valid conduct-regulating

statute.” Jews for Jesus, Inc. v. Jewish Community Relations Council of N.Y., Inc., 

968 F.2d 286, 296 (2d Cir. 1992). Likewise, the First Amendment gives Shkreli no 

shelter from an injunction remedying such violations by barring him from using 

words to direct the actions of a pharmaceutical company in the future. 

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Shkreli complains that the injunction could stop him “from publishing an oped about best industry practices or tweeting disapproval of a distributor’s 

marketing strategy.” Br. 52. But, as the district court held, “Shkreli’s violations of 

the antitrust laws have lost for him the right to speak publicly about the 

pharmaceutical industry when such speech is uttered to influence the management 

or business of a Pharmaceutical Company.” SPA-159. Because Shkreli violated 

the antitrust laws, the district court was empowered to “curtail the exercise of 

liberties that [Shkreli] might otherwise enjoy, [but] that is a necessary and ... 

unavoidable consequence of the violation.” Prof’l Eng’rs, 435 U.S. at 697. “Just 

as an injunction against price fixing abridges the freedom of businessmen to talk to 

one another about prices,” an injunction against participation in the pharmaceutical 

industry will curtail Shkreli’s “range of expression” when he makes statements 

seeking to influence or control a drug company. See id. 

Shkreli tries to distinguish Professional Engineers by asserting that the 

Supreme Court held that the injunction at issue (which forbade the defendant from 

stating or implying that competitive bidding is unethical) did not “block legitimate 

paths of expression.” Br. 54 (discussing 435 U.S. at 698). Shkreli misstates the 

Court’s holding. The Court did not deny that the injunction could potentially block 

legitimate expression, but held that “the burden is upon the proved transgressor” to 

come forward with a proposal to modify the decree to allow it to make specific 

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statements “more closely confined to [a] legitimate objective.” Id. at 698-99

(cleaned up). In other words, the mere possibility that the order might proscribe 

legitimate speech was not a basis to vacate the order.14 The same is true here.

Likewise, outside the antitrust realm, this Court has recognized that district 

courts may limit conduct otherwise protected by the First Amendment when 

remedying a statutory violation. In Carson, the Court rejected a First Amendment 

freedom-of-association challenge to a lifetime ban on participation in labor unions 

given the compelling interest in ridding unions of corruption. See 52 F.3d at 1185. 

The injunction’s bar on participating in a pharmaceutical company’s 

business decisions is not, as Shkreli claims, a “prior restraint.” Br. 51. “Not all 

injunctions that may incidentally affect expression ... are ‘prior restraints.’” 

Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 764 n.2 (1994). Again, the

provision targets conduct and recognizes that Shkreli may seek to direct corporate 

behavior through words (which is how he committed antitrust violations in the 

past) as well as through deeds. “[T]he injunction was issued not because of the 

content of [Shkreli’s] expression ... but because of [his] prior unlawful conduct.” 

14 In a footnote, Professional Engineers rejected the defendants’ argument that 

the injunction would prohibit them from “opposing repeal of statutes,” holding that 

the “injunction contains no such prohibition.” 435 U.S. at 698 n.27. Shkreli 

quotes the “no such prohibition” language out of context to falsely depict the Court 

as holding that the injunction did not prohibit any legitimate paths of expression. 

See Br. 54.

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Id. Moreover, as noted, Shkreli remains free to speak his mind “in any one of 

several different ways,” id., and can even make statements about pharmaceuticals, 

so long as a reasonable person would not interpret the message as seeking to 

influence a drug company’s business decisions.15 

For these reasons, the injunction “burden[s] no more speech than necessary 

to serve a significant government interest” in protecting the public from future 

antitrust violations by Shkreli or those under his power. See id. at 765. It therefore 

comports with the First Amendment. 

IV. THE INJUNCTION IS SUFFICIENTLY CLEAR AND SPECIFIC

Shkreli argues that the injunction is vague and indefinite and thereby 

violates Rule 65(d). Br. 56-60. The argument mischaracterizes the order. 

Rule 65(d) requires that “[e]very order granting an injunction ... must: (A) 

state the reasons why it was issued; (B) state its terms specifically; and 

(C) describe in reasonable detail ... the act or acts restrained or required.” To 

comply with this rule, “an injunction must be specific and definite enough to 

apprise those within its scope of the conduct that is being proscribed.” S.C. 

Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001) (cleaned 

15 Shkreli’s reliance on Metropolitan Opera Ass’n v. Local 100, Hotel Employees 

& Restaurant Employees International Union, 239 F.3d 172 (2d Cir. 2001), is 

misplaced. See Br. 52. There, this Court did not decide whether the injunction 

was a prior restraint; it vacated the injunction as impermissibly vague. 239 F.3d at 

178-79. 

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up). The purpose of this rule is “to prevent uncertainty and confusion on the part 

of those to whom the injunction is directed, and to be sure that the appellate court 

knows precisely what it is reviewing.” Id. (cleaned up). 

Even so, an order does not violate Rule 65(d) merely because it is broad, 

since “the scope of an injunction ... may be broad but at the same time be drafted 

in a manner that is not vague, but that is specific and precise. There is no inherent 

inconsistency between the two characteristics.” 11A Charles Alan Wright & 

Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 2955 (3d ed. Supp. 2022)

(“[T]he court simply may determine that the only way to prevent a statutory 

violation and thereby accomplish the purpose of the legislation is by entering a 

broad decree.”); see also Diapulse, 457 F.2d at 29 (“The injunction may sweep 

broadly in its prohibition if that is necessary to enjoin future violations which 

appear likely to occur.”). A court satisfies Rule 65(d) when its order cannot “be 

drawn more narrowly without unduly complicating its enforcement and impairing 

its effectiveness.” Peregrine Myanmar, 89 F.3d at 52. 

a. Shkreli objects (Br. 56) that the meaning of “pharmaceutical industry”

under the injunction is “vague[]” and “ambigu[ous],”see SPA-166 (¶ II), but he 

raised no such objection below. See D. Ct. ECF 867-2 at 9. And rightfully so: 

Pharmaceuticals are a commonly understood term, and if that were not enough, the 

order provides specific definitions of “Pharmaceutical Company,” “Drug Product,” 

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and “API.” See SPA-164-65. Shkreli is not, however, barred from involvement 

with companies that make products, like dietary supplements, that are not regulated 

by the FDA as drugs. 

Because pharmaceuticals have a specific regulatory definition, the order’s 

ban on “directly or indirectly participating in any manner in the pharmaceutical 

industry” (SPA-166) is even more precise than other industry bans upheld by this 

Court. In Carson, the Court sustained a ban on “participating16 in any way in the 

affairs of or having any dealing, directly or indirectly, with ... any labor 

organization.” 52 F.3d at 1184 n.10. And in Private Sanitation, the Court upheld 

a ban on “participating directly or indirectly in the carting industry.” 995 F.2d at 

376. The injunction here is no less understandable. 

b. Shkreli argues (Br. 56-57) that the injunction is somehow vague because 

it contains a limited exception allowing him to obtain “Qualified Employment” 

with an entity meeting the definition of “Pharmaceutical Company” if that

company is “not primarily involved in the research, Development, manufacture, 

commercialization, or marketing” of drugs and derives less than 10% of its gross 

revenues from these endeavors. Br. 56, discussing SPA-165 (¶ I.N) (emphasis 

16 Shkreli suggests the word “participating” is vague, Br. 56, but this is a term 

“that the ordinary person exercising ordinary common sense can sufficiently 

understand and comply with.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter 

Carriers, AFL-CIO, 413 U.S. 548, 577 (1973). 

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added). As the district court explained, this provision could allow Shkreli to accept 

employment with a university or advertising agency that does pharmaceutical work 

as a minority of its business (so long as Shkreli is not personally involved in such 

work). SPA-157-58. Under the order, Shkreli must give the government advance 

notice of his intent to accept Qualified Employment and, if the government does 

not object within 20 working days, it is barred from seeking to hold Shkreli in 

contempt based on that employment. SPA-166-67 (¶ II.G). And, as the district 

court stressed, “Shkreli of course may apply for relief should the plaintiffs 

unreasonably object to his employment.” SPA-158.

Far from being vague, this provision makes the order more precise and 

reduces its burden on Shkreli. He complains that the order is unclear about 

whether he can “work[] for an advertising company whose clients include 

pharmaceutical companies,” Br. 58, but, as noted, the district court adopted the 

Qualified Employment exception to answer that very question. 

c. Shkreli asserts that the order “might prohibit him from discussing 

pharmaceuticals with a friend in the industry.” Br. 57. The injunction makes plain

that such conversations are off-limits when they amount to “[p]articipating in the 

formulation, determination, or direction of any business decisions” of a 

pharmaceutical company. SPA-166 (¶ II.B). As the district court explained, 

“[t]his language is sufficiently clear to give Shkreli the notice he requires of the 

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terms of the injunction and is also necessary to control the very real risk that he 

will continue to participate in the industry by working through others in the 

industry, as he has done while incarcerated.” SPA-159. 

Shkreli likewise objects that the order is vague about whether he can 

“lobby[] for or against any federal or state policy that could affect the bottom line 

of a pharmaceutical company.” Br. 59. Not so. The order forbids Shkreli from 

working on behalf of a pharmaceutical company or (as discussed in Point III) from 

making “public statements about a Pharmaceutical Company” if he “intended” 

those statements to influence or control such a company “or if a reasonable person 

would conclude that the statement has that effect.” SPA-166 (¶¶ II.A & II.D). 

Shkreli therefore may not engage in lobbying to support or oppose a 

pharmaceutical company’s business activities. He may engage in advocacy on a 

general healthcare policy issue without either working for or making “public 

statements about a Pharmaceutical Company.” Those outcomes are perfectly clear 

on the face of the injunction.

Shkreli likewise objects to the order’s use of a reasonable-person standard to 

determine whether Shkreli made statements for the purpose of influencing or 

controlling a pharmaceutical company. Br. 59. But it is not vague to determine

liability based on how an objectively reasonable listener would interpret Shkreli’s 

statements; the law does this all the time. See, e.g., FTC v. Moses, 913 F.3d 297, 

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306 (2d Cir. 2019) (even without “intent to deceive,” defendants may face FTC 

Act liability for “representations or practices [that] were likely to mislead 

consumers acting reasonably”) (citation omitted).

d. Shkreli complains that the order is vague because its guidance about 

practices that do and do not constitute participation in the pharmaceutical industry 

is “illustrative” rather than “exhaustive,” since it is prefaced by the words 

“including by.” Br. 57, discussing SPA-166 (¶ II). This was by design. See SPA158 (explaining that the words “including by” are “necessary to protect the public”

and ensure “the effectiveness of the injunction”). Given Shkreli’s long history of 

evading legal restrictions, the district court was justified in ensuring that Shkreli 

does not circumvent the order by participating in the pharmaceutical industry in 

ways outside the enumerated list of examples. “Rule 65(d) does not require the 

district court to predict exactly what [Shkreli] will think of next.” S.C. Johnson, 

241 F.3d at 241 (cleaned up). The district court was entitled to frame the 

injunction without “specifically enjoin[ing]” every “plan or scheme” that Shkreli 

might hatch in the future. McComb, 336 U.S. at 192. 

e. As noted above, Shkreli hypothesizes that the injunction’s ban on 

“participating” in the pharmaceutical industry “could be broad enough to 

prohibit[]” him from being a clinical trial test subject or a Walgreens cashier. Br. 

58. There is no Rule 65(d) vagueness problem here: As Shkreli concedes, the 

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order forbids such conduct when “read literally.” Id. The argument therefore 

pertains to breadth, not vagueness. And as discussed at pp. 42-44, the district court 

acted within its discretion when concluding that an industry-wide bar was justified 

as a prophylactic measure to prevent circumvention of the law and similar 

dangerous violations by Shkreli in the future, even if it could apply to “[a]cts 

entirely proper when viewed alone.” Gypsum, 340 U.S. at 89. 

f. Finally, Shkreli complains that the order is vague because its access-toinformation requirement directs Shkreli to make himself available for interviews 

and provide access to records “that relate to compliance with this Order.” SPA169 (¶ V). Shkreli argues that the order places no limits “as to duration, frequency, 

or topics to be covered.” Br. 60. But it is for the district court to determine based 

on the specific circumstances whether the FTC’s information demands reasonably 

relate to compliance with the order. If Shkreli believes that a specific request

exceeds that standard, he may ask the district court for relief. 

CONCLUSION

The judgment of the district court should be affirmed. 

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Respectfully submitted,

JOEL MARCUS

Deputy General Counsel

March 23, 2023 /s/ Bradley Grossman

BRADLEY DAX GROSSMAN

Attorney

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

bgrossman@ftc.gov

202-326-2994

Of Counsel:

MARKUS H. MEIER

BRADLEY S. ALBERT

MAREN HANEBERG

NEAL J. PERLMAN 

DANIEL W. BUTRYMOWICZ

FEDERAL TRADE COMMISSION

Washington, D.C. 20580

Case 22-728, Document 144, 03/27/2023, 3490165, Page72 of 74
CERTIFICATE OF COMPLIANCE

I certify that the foregoing brief complies with the volume limitations 

of Local Rule 32.1(a)(4)(A) because it contains 13,976 words, excluding the 

parts of the brief exempted by Fed. R. App. P. 32(f), and that it complies with 

the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style 

requirements of Fed. R. App. P. 32(a)(6) because it was prepared using 

Microsoft Word in 14-point Times New Roman type. 

March 23, 2023 /s/ Bradley Grossman

Bradley Dax Grossman 

Attorney 

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

Case 22-728, Document 144, 03/27/2023, 3490165, Page73 of 74
CERTIFICATE OF SERVICE

I certify that on March 23, 2023, I served the foregoing on counsel of 

record using the Court’s electronic case filing system. All counsel of record 

are registered ECF filers.

March 23, 2023 /s/ Bradley Grossman

Bradley Dax Grossman 

Attorney 

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

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