Abstract

http://ssrn.com/abstract=2317241
 


 



Activating Actavis


Aaron S. Edlin


University of California at Berkeley; National Bureau of Economic Research (NBER)

C. Scott Hemphill


Columbia University - Law School

Herbert J. Hovenkamp


University of Iowa - College of Law

Carl Shapiro


University of California, Berkeley - Haas School of Business

August 26, 2013

Antitrust Magazine, Fall 2013, at 16
Columbia Law and Economics Working Paper No. 457

Abstract:     
In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”

This article is an effort to help courts and counsel fill in the gaps. We identify and operationalize the essential features of the Court’s analysis. We describe the elements of a plaintiff’s affirmative case, justifications that are ruled out by the Court's logic, and a test for viable justifications. For private cases, we outline an appropriate procedure for evaluating damages and suggest specific jury instructions.

Number of Pages in PDF File: 8

Keywords: antitrust, drugs, FTC, Hatch-Waxman, innovation, patent, Paragraph IV, pay for delay, pharmaceuticals, regulation, reverse payment, settlement

JEL Classification: K21, L40, L41, L50

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Date posted: August 30, 2013 ; Last revised: December 30, 2013

Suggested Citation

Edlin, Aaron S. and Hemphill, C. Scott and Hovenkamp, Herbert J. and Shapiro, Carl, Activating Actavis (August 26, 2013). Antitrust Magazine, Fall 2013, at 16; Columbia Law and Economics Working Paper No. 457. Available at SSRN: http://ssrn.com/abstract=2317241 or http://dx.doi.org/10.2139/ssrn.2317241

Contact Information

Aaron S. Edlin
University of California at Berkeley ( email )
Dept of Economics 549 Evans Hall #3880
Berkeley, CA 94720
United States
510-642-4719 (Phone)
510-643-0413 (Fax)
National Bureau of Economic Research (NBER)
1050 Massachusetts Avenue
Cambridge, MA 02138
United States
C. Scott Hemphill (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States
Herbert J. Hovenkamp
University of Iowa - College of Law ( email )
407 Boyd Law Building
Iowa City, IA 52242
United States
319-335-9079 (Phone)
Carl Shapiro
University of California, Berkeley - Haas School of Business ( email )
545 Student Services Building, #1900
2220 Piedmont Avenue
Berkeley, CA 94720
United States
510-642-5905 (Phone)
HOME PAGE: http://faculty.haas.berkeley.edu
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