Reverse Payments and Antitrust Developments: What You Need to Know
In 2013, the U.S. Supreme Court rendered its decision in Federal Trade Commission v. Actavis, finding that reverse payment settlements can sometimes be subject to antitrust scrutiny under the "rule of reason" standard. Post-Actavis, lower courts have provided further clarity to the Supreme Court's decision. For instance, in King Drug Co. v. SmithKline Beecham Corp (now GSK), the U.S. Court of Appeals for the Third Circuit held that reverse payments also encompass other forms or considerations not limited to cash. In another case, In re: Loestrin 24 Fe Antitrust Litigation, the U.S. Court of Appeals for the First Circuit explained that plaintiffs must provide facts sufficient to prove that the settlement at issue involves a large and unjustified reverse payment under Actavis. Similarly, In re: Actos End Payor Antitrust Litigation, the U.S. District Court for the Southern District of New York held that the complaint should sufficiently allege the payments as either large or unjustified.
These and other cases decided since Actavis have impacted the reverse payment litigation practice. However, the question still remains as to how far and extensive the analysis of reverse payment cases will extend.
In this LIVE Webcast, a panel of distinguished professionals and thought leaders will explore the recent developments in reverse payment litigation, featuring recent cases interpreting reverse payments post-Actavis. They will offer practical advice to avoid reverse payment claims and strategic defense to win a reverse payment litigation.
Key topics include:
- The Actavis Decision - A Background
- Recent Case Law and FTC Enforcement
- No-AG Clauses and Other Non-Cash Forms
- Antitrust Standing under Actavis
- Economic Considerations
- Market Power Issues
Heather Johnson, Attorney
Federal Trade Commission
- Lower court interpretations of the Actavis burden-shifting framework
- Plaintiffs’ prima facie case
- Defendants’ procompetitive justifications
- Plaintiffs rebuttal of justifications
- Recent Developments (Suboxone, Nexium, Wellbutrin)
- Anticompetitive effect
- Antitrust injury and causation
- Market power
- What is the FTC up to?
- Ongoing commitment to challenging reverse payment agreements
- Current litigations
- Amicus filings
- Review of MMA filings
- Ongoing commitment to challenging reverse payment agreements
Ted Davis, Vice President
- Economic perspective on exchange of consideration in patent settlements
- Risk aversion in patent settlements
- Consideration under Actavis - what forms of consideration matter?
- The strength of the patent
- Antitrust injury and "delay"
Fabian Leimgruber, Partner
- International Developments and Assessment of Reverse Payment Settlements in the Wake of FTC v. Actavis Pharmaceuticals
- Interference of Legal Rulings in the International Context
- European Union - The Lundbeck Saga
- Differences in EU and US law
- Reverse Payment Settlements in EU after the General Court’s Judgment in Lundbeck
- Potential competition
- Restriction of competition “by object”
- Implication on patent settlement agreements
- Implication of post-Actavis FTC challenges on future EU completion law development
- The Big Picture: US and EU Practice
- Asian Pacific market:
- Recent Australian competition law developments with respect to reverse payment settlements
- Recent Japanese competition law developments with respect to reverse payment settlements
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
Heather M. Johnson is an Attorney in the Health Care Division of the Federal Trade Commission’s Bureau of Competition in Washington, D.C. Heather works on investigations and litigation involving alleged violations of the antitrust laws by pharmaceutical companies, health care professionals, hospitals, and health plans. Heather joined the FTC in 2012. Prior to that, Heather worked at the law firms of Cleary Gottlieb Steen & Hamilton LLP and Crowell & Moring LLP, where her practice focused on antitrust counseling, antitrust civil litigation, and antitrust transactional matters. In private practice, Heather regularly represented clients before the FTC and Department of Justice in antitrust conduct, merger, and criminal investigations. She graduated from Emory University School of Law, as a Robert W. Woodruff Fellow, cum laude, Order of the Coif, in 2005, after which she clerked for the Honorable Edward E. Carnes of the United States Court of Appeals for the Eleventh Circuit.
Heather M. Johnson is an Attorney in the Health Care Division of the Federal Trade Commission’s Bureau of Competition in …
Analysis Group Vice President Ted Davis specializes in the application of financial economics and data analysis to litigation and other complex business situations. He has managed case teams and supported academic affiliates and industry experts through all phases of complex business litigation, including fact and expert discovery, class certification, liability and damages, and trial. Mr. Davis's work involves conducting economic research across a variety of industries, including financial services, agriculture, and pharmaceuticals, and analyzing issues related to commodity markets, futures prices, intellectual property and patents, industrial organization and antitrust law (including matters involving reverse payments), and financial market infrastructure. He is a CFA (Chartered Financial Analyst) charterholder.
Analysis Group Vice President Ted Davis specializes in the application of financial economics and data analysis to litigation and other …
Fabian Leimgruber is a pre-eminent lawyer and patent attorney, who has earned a reputation as first-rate litigator and patent prosecutor mainly in the fields of software, business methods, chemistry and life science, competition and license law. Fabian is a senior partner in ThomannFischer’s IP group with many years of experience in various large Law Firms. One of Fabian’s specific area of expertise is the leading and implementation of international patent infringement litigations. He handles patent cases in all Swiss and German Courts and the European Patent Office. Fabian has run several of the largest patent cases involving patents and standards in recent years. Further, he represents clients in front of arbitral tribunals and the national and international patent offices, opposition and appeal divisions. Fabian has a double degree in physics (PhD) and law (JD). A graduate of the University of Basel (Switzerland), CERN in Geneva, University of Freiburg (Germany), National University of Singapore (LL.M.) and East China University of Political Science and Law, Fabian joined ThomannFischer Law Firm in 2012 to help establish the firm’s IP practice.
Fabian Leimgruber is a pre-eminent lawyer and patent attorney, who has earned a reputation as first-rate litigator and patent prosecutor …
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About Federal Trade Commission
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The FTC develops policy and research tools through hearings, workshops, and conferences. We collaborate with law enforcement partners across the country and around the world to advance our crucial consumer protection and competition missions. And beyond our borders, we cooperate with international agencies and organizations to protect consumers in the global marketplace.
About Analysis Group
Analysis Group is one of the largest private economics consulting firms, with more than 800 professionals across 13 offices in North America, Europe, and Asia. Since 1981, we have provided expertise in economics, finance, health care analytics, and strategy to top law firms, Fortune Global 500 companies, and government agencies worldwide. Our internal experts, together with our network of affiliated experts from academia, industry, and government, offer our clients exceptional breadth and depth of expertise.
ThomannFischer Law Firm is an international law firm situated in Basel in the center of Europe. Well known for its intellectual property work, the firm covers all areas of commercial law across selected industry sectors. These sectors include automotive, aviation & aerospace, transportation, financial services, technology transfer, communications, energy & utilities, retail & consumer, life sciences & healthcare, media, entertainment and sport. All the partners have a long history of professional experience and comprehensive knowledge in their areas of practice.