"Pay-For-Delay" Settlements Post-ACTAVIS: Why Mediation Can Tackle the "Unreasonable" Antitrust Settlements

Authors

Sheena Ching, Benjamin N. Cardozo School of Law

Abstract

This Note discusses the benefits that mediation can have on the reverse payment settlement and antitrust debate, and how it can satisfy the "rule of reason" requirement post-Actavis. Accordingly, Section II discusses the legislative history and policy of the Hatch-Waxman Act. It elaborates on the pioneer drug development process and how the combination of legislation and the inherent nature of drug development resulted in "pay-for-delay" settlements. Section III discusses majority and dissenting opinions in the landmark Supreme Court case FTC v. Actavis as well as the circuit split decisions that led up to the Court's ultimate ruling and its implications. This section also analyzes the subsequent cases and the different interpretations from the district courts. Section IV discusses mediation as a means to resolve the debate of antitrust liability and reverse payment settlements between brand name pharmaceutical companies and generic manufacturers. The Conclusion discusses mediation's utility in resolving the antitrust tendencies between generic drug and brand-name drug manufacturers.

Disciplines

Antitrust and Trade Regulation | Consumer Protection Law | Dispute Resolution and Arbitration | Food and Drug Law | Intellectual Property Law | Law

Recommended Citation

Sheena Ching, "Pay-For-Delay" Settlements Post-ACTAVIS: Why Mediation Can Tackle the "Unreasonable" Antitrust Settlements, 17 Cardozo J. Conflict Resol. 277 (2015).
Available at: https://larc.cardozo.yu.edu/cjcr/vol17/iss1/11