Brief for Antitrust Law Professors as Amici Curiae in Support of Petitioners - Visa Inc. V. Osborn
Brief for Antitrust Law Professors as Amici Curiae in Support of Petitioners - Visa Inc. V. Osborn

Author: Jorge L. Contreras

Publisher:

Published: 2016

Total Pages: 18

ISBN-13:

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The courts of appeals are divided over whether a plaintiff can plausibly plead a horizontal conspiracy among competitors in violation of section 1 of the Sherman Act merely by alleging that members of a business association: (a) have governance rights in the association and (b) agreed to adhere to its rules. Amici submit that the D.C. Circuit erred in holding here that such allegations are sufficient. That holding is inconsistent with this Court's precedent requiring plaintiffs, in order to allege an illegal agreement, to plead facts plausibly suggesting collusion among the defendants to achieve a common unlawful objective. The approach approved by the decision below would mean that every business that participates in the affairs of a business association can be subjected to expensive discovery concerning an allegedly anticompetitive rule of the association. That would discourage beneficial business-association activities, to the detriment of businesses and consumers alike.

European Competition Law Annual 2013
European Competition Law Annual 2013

Author: Philip Lowe

Publisher: Bloomsbury Publishing

Published: 2016-04-21

Total Pages: 616

ISBN-13: 1509900489

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This volume contains papers presented at the 18th Annual EU Competition Law and Policy Workshop. The papers examine means of balancing effective (public) competition law enforcement and the requirements of legitimate and accountable exercise of public authority. The authors address the design and performance of various enforcement tools at European and national levels, including sanctions and remedies but also distinctive instruments under Regulation 1/2003 (eg commitment procedures) and under the Treaty on the Functioning of the European Union (Article 106(3) when used as a basis for infringement procedures). From the perspective of legitimacy, reflections focus on the implications of fundamental rights standards and general principles of law for the EU's complex and quasi-federal enforcement architecture. Issues that may sometimes escape judicial scrutiny are also discussed, such as how agencies prioritise their activities, and how investigation responsibilities are distributed within the European Competition Network. Effectiveness and legitimacy are then considered in the context of public enforcement cooperation beyond the EU, where international organisations, regional cooperation and a range of formal and informal modes of governance prevail.

Brief Amici Curiae of 53 Law, Economics, and Business Professors, the American Antitrust Institute, and Consumers Union in Support of Appellants
Brief Amici Curiae of 53 Law, Economics, and Business Professors, the American Antitrust Institute, and Consumers Union in Support of Appellants

Author: Michael A. Carrier

Publisher:

Published: 2014

Total Pages: 41

ISBN-13:

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In FTC v. Actavis, the Supreme Court held that a brand payment to a generic to delay entering the market could have "significant anticompetitive effects" and violate the antitrust laws. In a narrow, formalistic ruling, the court in In re Lamictal held that such payments were limited to cash. On behalf of 53 professors, the American Antitrust Institute, and Consumers Union, this Third Circuit amicus brief urges reversal.Exclusion payments today take myriad forms, with roughly half taking the form of “no-authorized-generic” agreements by which a brand agrees not to launch an authorized generic during the generic's 180-day exclusivity period. Because the launch of an authorized generic dramatically reduces the generic's profits, a brand's promise not to introduce one provides substantial value to the generic.No-authorized-generic agreements, which a brand enters into in exchange for a generic's agreement to delay entry into the brand's market, are simply a variation on a type of unlawful market-allocation agreement with which courts have long been familiar. The two parties make reciprocal agreements not to compete in the other's allocated portion of the market: the brand agrees not to launch an authorized generic that would compete against the generic, and the generic agrees to delay launching its product that would compete against the brand. In holding that only cash payments are subject to antitrust scrutiny under Actavis, the Lamictal court created a loophole large enough to accommodate an entire industry's worth of supracompetitive profits and missed dosages. Nor would scrutiny of agreements like the one in this case, which provides the generic with a type of consideration it could never have obtained by winning a patent case, have any effect on legitimate settlements that fall within the boundaries of patent litigation.Finally, the district court's analysis purported to apply Actavis but was closer to defying it in (1) using factors the Supreme Court invoked to require heightened scrutiny to instead justify reduced scrutiny; (2) misunderstanding the valuable no-authorized-generic period; (3) deeming procompetitive the elimination of risk that Actavis held is anticompetitive; and (4) divining, on its mere say-so, an absence of harmful “intent.”

Patent Settlements in the Pharmaceutical Industry under US Antitrust and EU Competition Law
Patent Settlements in the Pharmaceutical Industry under US Antitrust and EU Competition Law

Author: Amalia Athanasiadou

Publisher: Kluwer Law International B.V.

Published: 2018-08-14

Total Pages: 520

ISBN-13: 9403501146

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Reverse payment settlements or “pay-for-delay agreements” between originators and generic drug manufacturers create heated debates regarding the balance between competition and intellectual property law. These settlements touch upon sensitive issues such as timely generic entry and access to affordable pharmaceuticals and also the need to preserve innovation incentives for originators and to strengthen the pipeline of life-saving pharmaceuticals. This book is one of the first to critically and comparatively analyse how such patent settlements and various other strategies employed by the pharmaceutical industry are scrutinised by both United States (US) and European courts and enforcement authorities, and to discuss the applicable legal tests and the main criteria used for their assessment. The book’s ultimate objective is to provide guidance to the pharmaceutical industry regarding the types of patent settlements, strategies and conduct which may be problematic from US antitrust and European Union (EU) competition law perspectives and to assist practitioners in structuring settlements which are both efficient and compliant. To this end, an exhaustive legal analysis of some of the most controversial issues regarding pharmaceutical patent settlements is provided, including: – the lengthy split among US Circuit Courts on the issue of pay-for-delay settlements, its resolution by the US Supreme Court in FTC v. Actavisand subsequent jurisprudence; – the decision of Lundbeck v. Commissionby the European General Court and the Servier decision of the European Commission; – the Roche/Novartisdecision of the European Court of Justice and the most important decisions by National Competition Authorities on pharma patent settlements in the EU; – an overview of other types of strategies such as product-hopping and product reformulations, no-authorised generic commitments, problematic side-deals, mechanisms affecting generic substitution; – the rejection of the “scope of the patent” test in both the US and the EU and the balancing of patent law and antitrust law considerations in the prevailing applicable tests; – the benefits of settlements and the main criteria for assessing their legitimacy under US antitrust and EU competition law. The analysis provides concrete examples of both illegitimate and legitimate settlements and strategies, emphasising on conduct that falls within a grey zone and on the circumstances and criteria under which such conduct could be deemed problematic from an antitrust perspective. This book will serve as a valuable guide for pharmaceutical companies wishing to minimise the risk of engaging in conduct that could potentially infringe US antitrust and EU competition law. It further aims to save courts and enforcement agencies and also practitioners and academics considerable time and resources by providing an exhaustive analysis of the relevant caselaw, with the ultimate goal to increase legal certainty on the most controversial aspects of patent settlements in the pharmaceutical industry.