Emerging Issues in Reverse Payment Settlements: What You Need to Know in 2017
Reverse payment settlements, also known as pay-for-delay settlements, are among the most contested and fastest developing areas of antitrust law. Post-Actavis, courts continue to assess the degree to which reverse payments are allowed. In FTC v. AbbVie Inc., the District Court for the Eastern District of Pennsylvania dismissed FTC's antitrust actions against AbbVie Inc. and Teva Pharmaceuticals. The court held that the settlement agreement between the parties was not anti-competitive and did not contain a payment-to-delay competition. Conversely, the First Circuit held in In re: Loestrin 24 Fe Antitrust Litigation that non-cash reverse payments are also subject to antitrust scrutiny. Moreover, in March 2016, the FTC filed a complaint against Endo Pharmaceuticals Inc. and several other drug companies for allegedly using pay-for-delay settlements to block consumers' access to lower-cost generic versions of Opana ER and Lidoderm. This enforcement action is the first FTC case challenging a no authorized generic commitment as a form of reverse payment.
Following these recent FTC enforcement actions, the question remains as to how far the assessment of reverse payment settlements will extend.
In a two-hour LIVE Webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group will discuss the emerging issues in reverse payment settlements. They will provide an in-depth discussion of recent case laws and FTC enforcement actions. Speakers will also give insights on how these will impact future reverse payment litigations.
Some of the major topics that will be covered in this course are:
- Background on the Actavis Decision
- Economic Considerations
- No-AG Agreements and Non-Cash Reverse Payments
- Recent Case Laws and FTC Enforcement Actions
James Langenfeld, Ph.D., Managing Director, Head of Antitrust & Competition Practice
Ankur Kapoor, Attorney at Law
Constantine Cannon LLP
- Background on the Actavis decision
- The legal issue addressed by the Supreme Court and the circuit split that the Court resolved (AK)
- Economic issues (JL)
- The issues that the Court left for the lower courts to resolve (AK)
- How the lower courts have been addressing reverse-payment settlements in the three years since Actavis
- Are No-AG agreements and other non-cash consideration “payments” subject to the Actavis rule? (AK/JL)
- How do you tell if there has been a “large, unexplained” payment? (JL)
- Patent, regulatory, and other issues that break the chain of causation from antitrust violation to competitive harm (AK)
- Product-hopping antitrust cases (AK/JL)
- If the brand plaintiff is attempting a “product hopping” strategy, the delay in generic entry provides more time to shift patients from the drug under litigation to the new drug, and will thereby reduce the number of patients converting to the generic.
- Which entities are bringing the myriad lawsuits challenging Hatch-Waxman patent litigation settlements? (AK)
- Issues in class certification (AK)
Who Should Attend:
- Antitrust Lawyers
- Patent Attorneys
- Patent Licensing Attorneys
- Patent Litigators
- IP Attorneys & Related Consultants
- Pharmaceutical Industry Lawyers
- Biotech/Pharma/Healthcare Attorneys & Advisors
- Drug Manufacturing Company Executives
Dr. James Langenfeld is a Managing Director at Navigant Economics, an Adjunct Professor at Loyola University School of Law, and the Editor of Research in Law & Economics. As a consultant, he provides economic analyses in the context of litigation, regulation, and economic policy. He has done extensive work in many industries and regularly testifies in litigation and regulatory proceedings at the federal and state levels in the US as well as in Europe, Canada, and other countries. Furthermore, he has served as an economic expert and published several articles on the topic of “pay to delay” cases. His professional experience also includes Director in the Bureau of Economics of the Federal Trade Commission and Senior Economist at General Motors.
He has published on many topics in applied economics and econometrics, has been awarded many honors, is on the editorial board and referees for professional journals, and serves on the advisory board of professional organizations. He holds a Ph.D. in Economics from Washington University and an A.B. from Georgetown University.
Dr. James Langenfeld is a Managing Director at Navigant Economics, an Adjunct Professor at Loyola University School of Law, and …
Ankur Kapoor is a partner at Constantine Cannon and has been at the firm since 2004, focusing on antitrust counseling and litigation. Ankur has been involved in many areas of antitrust law, including price fixing, tying, exclusive dealing, bundled discounts, monopolization, patent-antitrust, settlements of Hatch-Waxman patent-infringement litigation, merger analysis, and joint ventures. His practice has encompassed antitrust litigation and counseling in private actions and class actions, as well as federal and state antitrust agency proceedings. He has extensive experience in biotechnology and pharmaceutical antitrust, representing various pioneer manufacturers such as Johnson & Johnson in its Ortho Biotech subsidiary’s lawsuit against Amgen. Ankur also assisted Constantine Cannon founder Lloyd Constantine as an independent consultant to the court in In re Modafinil Antitrust Litigation, a reverse-payments antitrust action. Ankur also has published several articles on reverse-payment settlements.
Ankur Kapoor is a partner at Constantine Cannon and has been at the firm since 2004, focusing on antitrust counseling …
Print and review course materials
Method of Presentation:
NASBA Field of Study:
NY Category of CLE Credit:
Unlock All The Knowledge and Credit You Need
Leading Provider of Online Continuing Education
It's As Easy as 1, 2, 3
Get Your 1-Year All Access Pass For Only $199
About Constantine Cannon LLP
Constantine Cannon’s international reputation for excellence in antitrust is based on successes in numerous high-profile antitrust cases. The firm was founded in 1994 as a boutique antitrust firm by Lloyd Constantine, the former Chief of the Antitrust Bureau of the Office of the Attorney General of New York, and maintains its focus on antitrust today. The firm has developed expertise in industries including payment systems (e.g., credit and debit cards and mobile payments), telecommunications, health care, high technology, advertising, and air transportation. Many of the firm’s attorneys developed their antitrust expertise through past careers as antitrust enforcement officials with state and federal agencies. They have taught antitrust law, testified before Congress on antitrust and international trade issues, presented at industry forums and CLE programs, and have authored books and countless articles on a variety of issues dealing with antitrust law and compliance.