September 25, 2014

Antitrust Regulators Taking Aim At Drug Companies’ “Forced Switching”

By Rosa M. Morales

Signs continue to accumulate that antitrust regulators are on the lookout for innovative anticompetitive tactics by pharmaceutical companies seeking to delay entry of lower-priced generic drugs.

This growing interest by federal and state regulators in policing the anticompetitive suppression of generic drugs was the subject of a recent post on this blog by Ankur Kapoor.  Among the antitrust enforcement actions analyzed was a reverse-payment case filed earlier this month by the New York State Attorney General against Actavis and its recently acquired, wholly-owned subsidiary Forest Laboratories.

In recent comments, Eric Stock, chief of the Antitrust Bureau of the New York State Attorney General’s Office shed light on what antitrust enforcers may be looking at when he discussed “forced switching” – one of the anticompetitive tactics used by the pharmaceutical companies that is attracting the interest of antitrust enforcers.  “Forced switching” occurs when pharmaceutical companies “force” the use of new branded drugs by either pulling older branded versions from the market or reducing their supply.

click here for more »

Leave a comment »

Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

    August 7, 2014

    Federal Court Denies Class Certification In Intel Antitrust Litigation

    By David Golden

    Plaintiffs in the long-running In re Intel Corporation Microprocessor Antitrust Litigation class action have suffered a major setback with last week’s denial of class certification by the U.S. District Court for the District of Delaware.

    The lawsuit, filed in 2005, alleges that Intel illegally excluded its major rival, Advanced Micro Devices (commonly referred to as “AMD”), from the U.S. market for x86 computer microprocessors[1] by paying computer manufacturers “loyalty payments” and “rebates” to use only Intel chips. The proposed class is compromised of indirect purchasers that bought computers that contained Intel microprocessors. The plaintiffs contend Intel’s payments to computer manufacturers reduced competition for chips, and ultimately raised the prices consumers paid for computers.

    click here for more »

    Leave a comment »

    Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

      March 13, 2014

      Show Me The Money Or Go Home: Federal Courts Wrestle With Addressing Reverse-Payment Settlements After Supreme Court’s Actavis Decision

      By Ankur Kapoor and Rosa M. Morales

      Nearly a year after the Supreme Court held in FTC v. Actavis that reverse-payment settlement agreements between branded and generic pharmaceutical companies are subject to antitrust scrutiny under the rule of reason, federal district courts are struggling with the thorny issue of whether plaintiffs need to show them the money.

      More specifically, district courts remain confounded by what constitutes a “payment” for purposes of antitrust challenges to settlements of Hatch-Waxman pharmaceutical patent infringement litigation, and whether a monetary transfer from the patent holder to the alleged infringer, i.e., a “reverse payment,” is necessary to state an antitrust claim attacking the competitive effects of the settlement.  Before embarking on a rule-of-reason analysis in such cases, some district court judges seem reluctant or unwilling to say “go” before they see the green.

      As discussed in a previous post – “Are Bright-Line Rules The Right Prescription For Reverse-Payment Cases?” – in January the U.S. District Court for the District of New Jersey dismissed the antitrust challenge to a reverse-payment settlement in In re Lamictal Direct Purchaser Antitrust Litigation because there was no cash payment from the patent holder to the would-be generic competitor, and narrowly interpreted Actavis as imposing a “bright-line” requirement of a cash payment.  The court therefore held that it was unnecessary to engage in the requisite full-blown rule-of-reason analysis to determine the settlement’s anticompetitive effects (if any).

      click here for more »

      Leave a comment »

      Categories: Antitrust and Intellectual Property Law, Antitrust Litigation, Antitrust Policy

        March 5, 2014

        Are Bright-Line Rules The Right Prescription For Reverse-Payment Cases?

        By Jeffrey I. Shinder and Ankur Kapoor

        As antitrust law evolves to address new problems posed by ever-shifting dynamics in industries both old and new, two schools of thought are vying for control of challenges to reverse-payment settlement agreements that resolve patent infringement litigation brought by pharmaceutical manufacturers against potential generic competition.

        One school favors the establishment of bright-line rules to give firms and courts predictability in the law.  The Supreme Court’s still controversial Illinois Brick decision, which generally limits damages recoverable under federal antitrust law to direct purchasers, is one example of this approach.  (Expressing the contrary view on whether indirect purchasers should have standing to recover their damages are the many state antitrust laws allowing indirect-purchaser recovery and the Supreme Court of Canada’s rejection of the Illinois Brick doctrine.)

        Another school of thought emphasizes that, in antitrust law, substance and economic reality should trump form because rigid, bright-line rules inevitably encounter cases in which application of a rigid rule leads to undesirable results, or, worse, give firms with market power a roadmap on how to exclude competition without fear of antitrust scrutiny.  This school of thought is grounded in the recognition that, because restraints often arise in factual and legal contexts as complex as the industries in which they arise, they cannot properly be evaluated without assessing and balancing their anticompetitive and procompetitive effects.   While this inquiry can sometimes be taxing, it is often necessary to reach a result that promotes unrestrained competition and markets – which generally are valued by all schools of thought.  The Supreme Court reaffirmed this principle in 2010 with its decision in American Needle v. NFL, which held that the National Football League could be considered a “combination” or “conspiracy” subject to Section 1 of the Sherman Act, depending on the specific factual and economic circumstances of the NFL’s member football teams’ conduct at issue.

        click here for more »

        Leave a comment »

        Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

          March 4, 2014

          Court Orders NCAA To Huddle With Former Players In Settlement Talks

          By David Scupp

          The antitrust battle between the NCAA and its former players over the use of their names and likenesses might finally be coming to a head.

          Last Friday, Judge Claudia Wilken of the U.S. District Court for the Northern District of California ordered the NCAA to engage in settlement talks in the class action case of In Re NCAA Student-Athlete Name and Likeness Licensing Litigation, with the class representatives, who claim that the NCAA and its member schools illegally conspired to prevent players from earning compensation from the licensing of their name and likeness rights.

          This order comes on the heels of a summary judgment hearing on February 20, 2014, when Judge Wilken stated in no uncertain terms that “[t]he whole case is not going away on summary judgment.”  That means that, barring successful settlement negotiations, the case is very likely to go to trial.  A trial date has been set for June 9, 2014, in Oakland, and is slated to last 19 days.

          click here for more »

          Leave a comment »

          Categories: Antitrust and Intellectual Property Law, Antitrust Litigation

            « Previous Entries  






            © 2009-2014 Constantine Cannon LLP. Attorney Advertising. Disclaimer.