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Separating “Pay” from “Delay”: Fairness Opinions of Reverse Payment Settlements under Actavis and Its Progeny

Alexander L. Clemons

©2015. Published in Landslide, Vol. 7, No. 6, July/August 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Following the Supreme Court’s Actavis decision,1 the Federal Trade Commission (FTC) and private plaintiffs have brought a wave of antitrust litigation against brand and generic pharmaceutical companies. They claim that certain reverse payment settlements of Hatch-Waxman litigation, sometimes referred to as “pay-for-delay” settlements, violate U.S. antitrust laws. As this growing body of cases continues to move through the district courts’ dockets, many judges have begun issuing orders that attempt to interpret and apply Actavis, with a variety of outcomes and potential guidance.

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