Managing Principal Stephen Fink Assesses Pharmaceutical Antitrust Litigation a Decade After US Supreme Court’s Actavis Decision
November 17, 2023
In 2013, the US Supreme Court decided Federal Trade Commission v. Actavis, a case in which the court determined that reverse payment settlements between branded and generic drug manufacturers can, in some circumstances, give rise to antitrust concerns. Actavis has proven to be a watershed in pharmaceutical antitrust, with dozens of cases and class action lawsuits brought by private litigants challenging the legality of various settlements.
In an article for the American Bar Association Antitrust Law Section website, Analysis Group Managing Principal Stephen Fink assesses the antitrust landscape a decade after Actavis and considers what might be ahead for this area of the law. Mr. Fink notes that over the 10-year period since the Supreme Court’s decision, for all the litigation activity generated by Actavis, only three cases have proceeded through trial to a jury verdict. He analyzes key findings from the outcomes of those cases, including the shifting burdens between plaintiffs and defendants when it comes to demonstrating antitrust injury and market power. He also assesses the balance of anticompetitive and procompetitive factors under the rule of reason analysis mandated by Actavis.
Finally, Mr. Fink examines pharmaceutical patent settlements before and since Actavis and considers what those data may portend for the future of these cases.