Last June, the U.S. Supreme Court finally tackled Reverse Payments. In Actavis, they leaned away from many lower court decisions and acknowledged that reverse payments (or “pay for delay”) can create antitrust violations. But they didn’t give the FTC—who has waged war on the concept for several years—carte blanche. Our distinguished panel has had time […]

Supreme Court Rules in Reverse Payment Case

Kevin Noonan, Sep 30, 2013 In June, the Supreme Court ruled 5-3 in favor of the Federal Trade Commission in FTC v. Actavis, Inc. Writing for the majority (that included Justices Kennedy, Ginsburg, Sotomayor, and Kagan), Justice Breyer’s opinion reversed the decision of the Eleventh Circuit Court of Appeals dismissing the FTC’s complaint that a […]

Evaluating the Size of Reverse Payments In Light of the Supreme Court’s Decision in FTC v. Actavis

James Langenfeld, Sep 30, 2013 Patent settlement agreements that involve payments from brand-name drug manufacturers to generic drug manufacturers (so called “reverse payments” or “pay for delay”) have been hotly contested in the courts. Last year, two U.S. Courts of Appeals reached opposite verdicts regarding the legality of “reverse payment” agreements. In April 2012, in […]

Reverse Payments After Actavis

John Bigelow, Sep 30, 2013 Thirteen years ago-in 2000-the Federal Trade Commission (“FTC”) and private plaintiffs began fighting certain kinds of settlements that sometimes arise in litigation over patents for pharmaceutical products. Initially dubbed “Reverse Payment” settlements and later “Pay for Delay” settlements by their critics, the challenged settlements come about when the manufacturer of […]

Reverse Payment Settlement Cases: Under the Rule of Reason By Object? A Brief Reflection

Marleen Van Kerckhove, Sep 30, 2013 The EC’s 2009 Sector Inquiry Report on certain practices in the European pharmaceutical sector described in considerable detail the practice and nature of settlement agreements between originator companies and generic companies in the European Union in the period 2000-2008. The Report did not intend to lay down guidance on the […]

Canadian Perspectives on Competition Law and Reverse Payments Following FTC v. Actavis

David Rosner, Navin Joneja, Joshua Krane, Sep 30, 2013 The Canadian Competition Bureau, pharmaceutical companies operating in Canada, and Canadian lawyers have been following the U.S. Supreme Court proceedings in FTC v. Actavis, Inc. et al. with some interest. In its June 2013 decision, the Court ruled on how so-called “reverse payments” by originator pharmaceutical companies […]

Reverse Payment Settlements in the United States and Europe: Moving Toward An Effects-Based Approach

David Tayar, William Rooney, Agathe Richard, Sep 30, 2013 After more than a decade of debate and complex litigation on “reverse payment” settlements, the Supreme Court ruled on the issue in Federal Trade Commission v. Actavis, Inc. The pharmaceutical industry now asks: So, are those settlements lawful? The Actavis Court’s answer: “Maybe . . . sometimes.” […]

FTC v. Actavis: Has the Dust Really Settled?

Kyle Musgrove, Richard Ripley, Sep 30, 2013 Three months now have passed following the Supreme Court’s decision inFTC v. Actavis, 133 S. Ct. 2223 (2013), which subjects to “rule of reason” antitrust scrutiny certain pharmaceutical patent settlements involving a cash payment by the branded drug company to the generic drug company. With the benefit of […]

When Does Interpretation Become Rewriting? The FTC Runs With the Actavis Decision

Kent Bernard, Sep 30, 2013 A Hatch-Waxman settlement case finally reached the Supreme Court, and when it did the Court in FTC v. Actavis rejected both (a) the settling parties’ view that any settlement within the scope of the patent at issue and not the result of sham litigation was legal (the “scope of the patent” […]