Mitchell Oates' Article for Law360 Examines Evolving Interpretation of Actavis

Articles / April 21, 2016

Associate Mitchell Oates authored an “Expert Analysis” article for Law360 that was published on April 5, 2016. The article, “FTC Amicus Brief Highlights Post-Actavis Challenges,” discusses a recent amicus brief filed by the Federal Trade Commission (FTC) in the Third Circuit appeal of a “pay for delay” antitrust action involving the antidepressant Wellbutrin XL. The appeal follows the dismissal on summary judgment of direct and indirect purchasers’ antitrust claims arising from the settlement of patent litigation under the Hatch-Waxman Act that allegedly delayed the entry of a generic version of the drug – claims based upon the U.S. Supreme Court’s 2013 ruling in FTC v. Actavis. Oates writes:

The FTC’s brief, while officially taking no position on the merits of the case, raises what are characterized as several “fundamental legal errors” in the district court’s analysis. Perhaps most importantly, the FTC contends that the district court applied an “untenably narrow” reading of Actavis, finding that the Actavis analysis should apply only when a reverse payment causes a generic challenger to abandon its patent challenge altogether.

Read the article.