Martha Swartz

In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court Affirmed that a for-profit corporation owned by people with strong religious beliefs can impose its religious beliefs on its employees, ignoring both the employees’ own religious beliefs, and their important health interests. The decision allows closely held corporations to deprive their employees of employer-financed insurance coverage for contraception. There was no scientific basis for the corporations’ conclusion that certain types of contraception (the Intrauterine Device, or “IUD,” for example) caused abortions, which would conflict with their religious beliefs, but that fact did not matter to the Court since, by tradition, the Court does not inquire into the basis of a person’s religious beliefs, and, notably, the corporations were treated like persons.

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Volume 67 | Spring 2015 | Issue 3


After Actavis: Seven Ways Forward
By: Michael A. Carrier

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

Deactivating Actavis: The Clash Between the Supreme Court and (Some Lower Courts)
By: Joshua P. Davis & Ryan J. McEwan
Numerous trial courts have misinterpreted the Supreme Court’s recent decision in FTC v. Actavis, Inc. An interesting question is why they have done so. VIEW PDF

The Actavis Inference: Theory and Practice 
By: Aaron Edlin, Scott Hemphill, Herbert Hovenkamp & Carl Shapiro

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

Model Jury Instructions: Trial by Actavis
By: David F. Sorenson & Steve D. Shadowen

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

Eight Reasons Why “No-Authorized-Generic” Promises Constitute Payment
By: Michael A. Carrier

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

Cipro’s $400 Million Pay for Delay: How California Law and Courts Make a Difference in Reverse Payment Challenges
By: Cheryl Lee Johnson
Using the In re Cipro I and II lawsuit as a case study, this Article explores the value and the broader opportunity that California antitrust and unfair competition laws, as well as California’s state court procedures, offer to plaintiffs challenging reverse payment agreements. VIEW PDF

Noerr-Pennington and Reverse Payment Agreements: A Match Not Made in Heaven
By: Abiel Garcia

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

Beyond Hatch-Waxman
By: Shubha Ghosh

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.

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