Brief Amici Curiae of 82 Law, Economics, Business, and Medical Professors in Support of Respondent

Abstract

In FTC v. Actavis, the Supreme Court issued one of the most important antitrust rulings in the past generation, finding that settlements by which brand firms pay generics to delay entering the market could violate antitrust law. In March, the FTC applied Actavis for the first time, issuing a comprehensive ruling that offered a ringing bipartisan (5-0) condemnation of this behavior.

Impax has appealed to the Fifth Circuit, seeking to overturn this ruling. This brief, filed on behalf of 82 professors of law, economics, business, and medicine, highlights Impax's four erroneous foundations, which seek to (1) overturn Actavis; (2) downplay Impax’s concession that Endo made a reverse payment to delay entry; (3) ignore its role in delayed competition; and (4) remake antitrust law to immunize blatantly anticompetitive behavior.

The brief requests that the Fifth Circuit affirm the FTC’s opinion, which is supported by Actavis, real-world evidence, and longstanding antitrust principles.

Keywords: patent, antitrust, Actavis, pay-for-delay, reverse payment, settlement, Impax

JEL Classification: I18, K21, L40, L41, L43, L65, O34, O38