AAI Statement in Response to the U.S. Supreme Court’s 5-3 Opinion Supporting the FTC in its Challenge to “Pay-for Delay” in FTC v. Actavis

The American Antitrust Institute (AAI) gives two-and-a-half cheers for the Supreme Court’s decision, which supports application of the antitrust laws to reverse payment settlements in which branded drug companies holding patents pay allegedly infringing generic drug firms to stay out of the market. This is a great victory for consumers and drug purchasers. A half-cheer can be held in reserve because the Court rejected the position of the FTC, the AAI, and the Third Circuit that a presumption of illegality should apply, instead saying that for now, at least, lower courts should use the Rule of Reason. Although the Court’s opinion provides limited guidance, companies and their lawyers will have to go back to the drawing board to reconsider their business and litigation strategies under the Hatch-Waxman Act. AAI President Bert Foer offered praise for “the tenacity of the FTC on behalf of consumers over a long and important campaign.”

Media Contact:
AAI President Bert Foer