Demystifying Reverse Payment Settlements in 2015
Reverse Payment Settlements, also known as 'pay-for-delay' agreements, involve a patent holder paying a potential competitor to delay marketing their product in a challenge to the patent holder's rights. Reverse payment patent settlements have evolved since US patents may be challenged in court by competitors, and declared invalid if found to be in violation of the strict patent laws. It is becoming increasingly common for some patent holders, particularly pharmaceutical companies, to pay competitors to extend their patent 'exclusivity'. These settlements have been criticized as anti-competitive and contrary to the public interest since it may raise prices and reduce innovation. Recently, the Supreme Court decision in FTC v. Actavis, Inc. only led to further confusion regarding the contradictory policies of the patent and antitrust laws.
In a two hour, LIVE Webcast, a panel of skilled practitioners assembled by The Knowledge Group will discuss recent cases and help the audience in Demystifying Reverse Payment Settlements in 2015. The speakers will also offer the audience best compliance practices and risk mitigation techniques.
Some of the major topics that will be covered in this course are:
- Reverse Payment Realities – An Overview
- Reverse Payment Settlement Agreements
- Hatch-Waxman Act
- Patent Settlements for Antitrust Violations
- Risks of Decreased Patent Value
- Paragraph IV’ Certification
- Rule-of-Reason Analysis
- Antitrust Scrutiny Prevention and Risk Mitigation Strategies
- Reverse Payment Realities Compliance Practices
- Potential Penalties and Litigation
Ms. Maren Schmidt, Attorney
Federal Trade Commission
- [FTC v. Actavis - Basic framework and the FTC’s Approach]
Ms. Anna M. Fabish, Of Counsel
O'Melveny & Myers LLP
- Lower Court Issues and Rulings re Actavis: Is a “large and unjustified” payment a threshold issue?
- Effexor, Lamictal line of cases presenting threshold issue; reasoning behind this framework
- If this is not the proper framework, what is the appropriate standard? (Consider alternatives presented in Nexium, Aggrenox)
- What is a practically workable standard?
Ms. Jennifer M. Driscoll, Partner
Sheppard, Mullin, Richter & Hampton LLP
- Lower Court Issues and Rulings re Actavis: Cash Payments versus Non-Cash Settlements
- Does the distinction of cash versus non-cash settlements matter?
- How have the courts decided this issue to date?
- Are divergent court decisions enough to send the issue back to the Supreme Court?
Mr. Joseph R. Saveri, Attorney
Joseph Saveri Law Firm, Inc
- In re Cipro Cases I & II, No. S198616 (Cal. May 7, 2015): Key aspects of the decision, comparing the Sherman Act / Actavis and Cartwright Act approaches
Mr. Craig C. Corbitt, Partner
Zelle Hofmann Voelbel & Mason LLP
- Cipro Cases: What is next for Cartwright Act reverse payment cases?
- Will California courts or federal courts take the lead in implementing the Cartwright Act analysis announced by the California Supreme Court in Cipro?
- § The federal Class Action Fairness Act (CAFA), 28 USC § 1332(d) et seq., removes most class actions to federal court. This means that consumers most likely to be harmed by anti-competitive patent settlements (i.e., indirect purchasers) will have their Cartwright Act claims removed to federal court under CAFA.
- Thus, the development of the Cipro analysis, at least for consumers, is likely to be shaped by the federal district courts in the first instance.
- But note that the Attorneys General have closely monitored the pay-for-delay cases, with an eye towards invoking “parens patriae” authority to bring claims on behalf of consumers in a state.
- Following the Supreme Court’s decision in Hood v. AU Optronics Corp., No. 12-1036 (U.S. Jan. 14, 2014), however, such “parens” cases are not removable to federal court under CAFA
- Thus, the AGs have the opportunity to affect the development of Cipro case law from within the state’s Superior Courts
- The California Supreme Court is unlikely to be the last high court to find that patent-related settlements may be reviewed under state antitrust laws. Thus, a Cipro-type decision may be coming to other states soon.
Who Should Attend:
- Technology Attorneys
- Antitrust Lawyers
- Patent Attorneys
- Patent Licensing Attorneys
- Patent Litigators
- IP Attorneys & Related Consultants
- Pharmaceutical Industry Lawyers
- Biotech/Pharma/Healthcare Attorneys & Advisors
- Drug Manufacturing Executives
Maren Schmidt is an attorney in the FTC Bureau of Competition’s Health Care Division. She investigates and litigates anticompetitive conduct cases in the pharmaceutical industry. Prior to joining the FTC in 2012, Maren was in private practice, first at Howrey LLP and then at Covington & Burling LLP, where she specialized in antitrust litigation in the technology and pharmaceutical industries. Maren earned her J.D. from William & Mary in 2006.
Maren Schmidt is an attorney in the FTC Bureau of Competition’s Health Care Division. She investigates and litigates anticompetitive conduct …
Anna M. Fabish is a counsel in O’Melveny’s Los Angeles office and a member of the Antitrust and Competition Practice within the Litigation Department. Her practice focuses on complex antitrust litigation in both the civil and criminal areas. She has worked on numerous internal investigations and represented international clients in Europe and Asia. Anna has represented clients in the airline, aeronautics, computer, and pharmaceutical industries. Anna frequently works closely with economic experts to craft arguments and strategies that best represent her client’s interests. Anna has also been very active in the Firm’s pro bono practice, including work on contract disputes, immigration issues, criminal post-conviction relief, and social security and foster benefits hearings.
Anna M. Fabish is a counsel in O’Melveny’s Los Angeles office and a member of the Antitrust and Competition Practice …
Ms. Driscoll's practice focuses on antitrust investigations, litigation and counseling. She has represented clients in international cartel investigations, merger investigations before the European Commission and Sherman Act Section Two class action lawsuits in federal courts.
More recently, Ms. Driscoll has counseled international clients about antitrust laws relating to mergers and acquisitions and represented both corporations and individuals in the Antitrust Division's investigation of the auto parts industry.
Active in the ABA Section of Antitrust Law, Ms. Driscoll is a member of the International Task Force. She was formerly the Vice Chair of the International Committee and Chair of the Section's 2010 Fall Forum. She has spoken on international cartel and unilateral conduct panels and has written articles and papers on those topics. Ms. Driscoll is also a Vice Chair of the ABA Section of International Law, International Antitrust Committee.
Prior to joining Sheppard Mullin, Ms. Driscoll worked at law firms in New York, Paris and London. She worked on behalf of the first company to lose a grant of amnesty from the US Department of Justice, as well as other high-profile antitrust matters. She also worked on high profile litigation matters, such as the World Trade Center insurance coverage dispute.
Reflecting her international practice strengths, Ms. Driscoll studied at the 1999 Summer Institute of International and Comparative Law at the Université de Paris I, Panthéon-Sorbonne.
Ms. Driscoll's practice focuses on antitrust investigations, litigation and counseling. She has represented clients in international cartel investigations, merger investigations …
Craig Corbitt, a partner in the San Francisco office of the law firm of Zelle Hofmann, has been an antitrust litigator for over 30 years. He has been involved in dozens of the most significant civil antitrust cases in the United States during his career. He has represented class plaintiffs in the LCD Flat Panel, CRT, Intel, De Beers, Microsoft, and Brand Name Prescription Drugs cases among many others; and has represented many corporate plaintiffs, including Kellogg Company in the Vitamins Antitrust Litigation and Santa Fe Southern Pacific in the AT&T monopoly litigation. He has represented antitrust defendants including Georgia Pacific in the Plywood Antitrust Litigation, Kellogg Company in multiple cases, and Santa Fe in the ETSI pipeline litigation. He is a frequent panelist and author on antitrust and competition topics. In 2015, he was selected by the California State Bar's Antitrust & Unfair Competition Section as the "Antitrust Lawyer of the Year."
Craig Corbitt, a partner in the San Francisco office of the law firm of Zelle Hofmann, has been an antitrust …
Joe founded the Joseph Saveri Law Firm in 2012. He possesses over 25 years of experience in antitrust and other complex civil and class action litigation as well as knowledge of a broad range of industries including banking and financial services, hardware, software, consumer electronics, labor, manufacturing inputs, agricultural products, and pharmaceuticals. Joe assists entrepreneurs, corporate executives, public officials, business owners, and their counsel who were harmed by anti-competitive conduct to determine whether and how to pursue litigation to achieve their goals.
Since its founding, the Joseph Saveri Law Firm has established a track record of success. To date, the firm has obtained successful resolutions for its clients in excess of 700 million dollars. The firm has served as Lead Counsel in the In re Capacitor Antitrust Litigation, In re Titanium Dioxide Antitrust Litigation, California Cipro Cases and In re High Tech Employee Antitrust Litigation.
Joe founded the Joseph Saveri Law Firm in 2012. He possesses over 25 years of experience in antitrust and other …
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Bureau of Competition, Health Care Division U.S. Federal Trade Commission
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About O'Melveny & Myers LLP
With approximately 750 lawyers in 15 offices worldwide, O’Melveny & Myers LLP helps industry leaders across a broad array of sectors manage the complex challenges of succeeding in the global economy. We are a values-driven law firm, guided by the principles of excellence, leadership, and citizenship. Our commitment to these values is reflected in our dedication to improving access to justice through pro bono work and championing initiatives that increase the diversity of the legal profession. For more information, please visit www.omm.com.
About Sheppard, Mullin, Richter & Hampton LLP
Sheppard Mullin is a full service Global 100 firm with more than 650 attorneys in 10 domestic offices located in California, Chicago, New York, and Washington, D.C., as well as five international offices in Beijing, Shanghai, Seoul, London and Brussels. The development and expansion of our practice in response to client needs remains the core focus of our leadership. Our attorneys take the time to understand not only the legal needs of our clients but also their business objectives. Our legal and business acumen, value for fees incurred, commitment to client service, and adherence to the highest ethical standards combine to set Sheppard Mullin apart.
About Zelle Hofmann Voelbel & Mason LLP
Zelle Hofmann Voelbel & Mason LLP is a national litigation and dispute resolution law firm with offices in Boston, Dallas, London, Minneapolis, San Francisco, and Washington, DC. The Firm excels at handling insurance, antitrust and other complex litigation on both a national and global scale. The firm also has an affiliate office in Beijing, People’s Republic of China.
About Joseph Saveri Law Firm, Inc
The Joseph Saveri Law Firm, Inc. specializes in antitrust law and complex civil and class action litigation in federal and state courts throughout the United States and in cases across the globe. Since its founding in 2012, the firm has quickly developed a track record of success in prosecuting cases on behalf of its clients and performing the highest quality legal work. Since that time, the Joseph Saveri Law Firm and its staff of experienced attorneys have been busy fighting anticompetitive business practices throughout the country, serving as lead and co-counsel in a variety of cases. The firm has generated over $600 million in settlements and successful resolutions for its clients.