The Federal Trade Commission’s Hearings on Competition and Consumer Protection in the 21st Century, Reverse-Payment Settlements, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University

11 Pages Posted: 25 Oct 2018 Last revised: 26 Oct 2018

See all articles by Tad Lipsky

Tad Lipsky

George Mason University - Antonin Scalia Law School

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 23, 2018

Abstract

This Comment is submitted in relation to the Federal Trade Commission’s (“FTC”) Hearings on Competition and Consumer Protection in the 21st Century. Specifically, we address the United States Supreme Court’s holding in FTC v. Actavis, Inc. that reverse-payment settlements should be analyzed under the rule of reason. The Court also held that since a full rule of reason analysis is costly and difficult, the size of the settlement may be used a proxy. The idea is that, if a settlement is greater than the potential litigation costs, then this is an indicator of a weak patent, or an attempt by the patent holder to exclude competition—in sum, it indicates that consumer welfare has decreased. We submit this comment based upon our extensive experience and expertise in antitrust law and economics.

Keywords: antitrust, Federal Trade Commission, hearings, competition, consumer protection, rule of reason

JEL Classification: K2, K21, L4, L40

Suggested Citation

Lipsky, Tad and Wright, Joshua D. and Ginsburg, Douglas H. and Yun, John M., The Federal Trade Commission’s Hearings on Competition and Consumer Protection in the 21st Century, Reverse-Payment Settlements, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University (October 23, 2018). George Mason Law & Economics Research Paper No. 18-41. Available at SSRN: https://ssrn.com/abstract=3272459 or http://dx.doi.org/10.2139/ssrn.3272459

Tad Lipsky (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

John M. Yun

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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