FTC v. Actavis and the future of reverse payment cases

The Supreme Court ruled in FTC v. Actavis that reverse payment settlement agreements between branded and generic pharmaceutical companies are subject to antitrust scrutiny and should be analyzed under the traditional, but not necessarily full-blown, rule-of-reason. The Court’s decision represents a significant victory for the Commission because it brings these agreements firmly within the scope of the antitrust laws and rejects the “scope of the patent” test. A critical next step is to begin to answer the important questions left open by Actavis. For instance, what legal burdens and presumptions will lower courts apply when analyzing reverse payment settlement agreements under the rule-of-reason? What benchmarks will lower courts use to assess whether a reverse payment is “large and unjustified” and thus carries a significant risk of anticompetitive effects. Although the Supreme Court rejected a general presumption of illegality, might lower courts adopt case-specific presumptions based on general evidence about particular types of reverse payment agreements? What role will patent validity play in the analysis, and what new efficiency justifications might courts accept?

1. I would like to thank Concurrences Journal, and especially Nicolas Charbit, for the generous invitation to share my views, and Frederic Jenny and Ilene Gotts for organizing this terrific dinner. Thank you also to Eric Stock for agreeing to share with me the welcome burden of addressing you this evening. Not only does it mean that I can speak for half as long, but more importantly, it allows me to return for the first course twice as fast. I very much look forward to Eric’s thoughtful remarks. 2. I should confess at the outset that Eric and I have conspired in preparing our remarks this evening. Together we have settled upon a topic we believe provides fodder for fruitful and hopefully entertaining discussion from both the federal and state perspectives: the Supreme Court’s recent

Access to this article is restricted to subscribers

Already Subscribed? Sign-in

Access to this article is restricted to subscribers.

Read one article for free

Sign-up to read this article for free and discover our services.


PDF Version


  • George Mason University (Fairfax)


Joshua D. Wright, FTC v. Actavis and the future of reverse payment cases, December 2013, Concurrences N° 4-2013, Art. N° 59202,

Visites 347

All reviews