Volume 67 | Spring 2015 | Issue 3
SYMPOSIUM – DRUG PATENT SETTLEMENTS AFTER ACTAVIS
The Supreme Court’s decision in FTC v. Actavis is one of the most important antitrust decisions in the modern era. In one fell swoop, the Court eliminated the immunity that most lower courts had applied to “reverse payment”1 settlements (by which a brand-name drug company pays a generic firm to delay entering the market) and made clear that such agreements could violate the antitrust laws. VIEW PDF
The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition. This paper is an effort to assist courts and counsel in implementing the Actavis Inference. VIEW PDF
The Actavis Court “leave[s] to the lower courts the structuring of the . . . rule-of-reason antitrust litigation.” In order to help courts provide that structure, this paper offers Model Jury Instructions and a Model Verdict Slip for a typical reverse payment case. VIEW PDF
To this universe of complex questions, courts have added one that is embarrassingly easy: Is there a payment when a brand promises not to introduce its own generic (known as an “authorized generic” or “AG”), which could be worth millions of dollars to the generic? Under any reasonable interpretation of economics, the Supreme Court’s 2013 decision in FTC v. Actavis, or common sense, such a promise constitutes payment. VIEW PDF
In its 2013 FTC v. Actavis decision, the U.S. Supreme Court resolved a circuit spilt, finding that reverse payment agreements could be anticompetitive. In his opinion for the majority, Justice Breyer stated that these agreements could potentially delay generic competition, cause harm to consumers, and be anticompetitive. VIEW PDF
In its 2013 FTC v. Actavis decision,1 the Supreme Court resolved a circuit split on the proper standard for antitrust review of reverse payment settlements. While the resolution boils down to three words, “rule of reason,” the Court’s extensive analysis and the dissenters’ vigorous resistance suggest that something deeper might be at stake. VIEW PDF
COMING SOON!: Volume 67, Issue 4
Congratulations to Staff Editor Christine Braswell ’17 for receiving a scholarship from Cohen, Placitella & Roth, P.C. The scholarship is granted based on the student’s academic, vocational, and volunteer background.
American Bar Association Approves Merger Creating Rutgers Law School.
United States District Court for the District of Massachusetts cites four articles from Volume 67, Issue 3, in the 1st drug-patent-settlement ruling since its June publication.
Congratulations to Dean Ronald K. Chen ’83 for Receiving the Parker A. Small Public Service Award.