; and (ii) has referred such determination to the Commission in writing, including a reasoned basis for the determination; and (B) the covered petition was part of a series of covered petitions. (3) Exception The presumption in paragraph (2) shall not apply if the defendant establishes, by a preponderance of the evidence, that the series of covered petitions that includes the covered petition referred to the Commission by the Secretary of Health and Human Services is not a sham. (4) Civil penalty In an action under paragraph (1), any person that has been found liable for a violation of section 5(a)(1) of the Federal Trade Commission Act ( 15 U.S.C. 45(a)(1) ) shall be subject to a civil penalty for each violation of not more than the greater of— (A) any revenue earned from the sale by such person of any drug product, referenced in a covered application that was the subject of a covered petition or a series of covered petitions that is a sham, during the period during which the covered petition or series of covered petitions was under review by the Secretary of Health and Human Services