Cardozo Journal of Conflict Resolution
Abstract
This Note seeks to answer the following question: How can the FTC respond to the potential influence of Kokesh by utilizing mediation to settle with and recover monetary relief from brand drug companies? Part II of this Note discusses the FTC's role in competition cases historically, as well as the Commission's proactive pursuit of monetary remedies, primarily disgorgement relief. It also provides a general overview of the Hatch-Waxman Act and its influence on the rise of patent infringement litigation, which, in effect, resulted in the rise of "pay-for-delay" settlements between brand and generic drug companies. Part III dissects the Supreme Court's decisions in FTC v. Actavis and Kokesh v. SEC along with their potential implications on or limitations to the FTC pursuing the disgorgement remedy in pay-for-delay settlements. Part III also provides a brief summary of the different methods of mediation. Lastly, Part IV of this Note proposes how brand drug companies and the FTC can better utilize dispute resolution-specifically in the context of patent infringement litigation-in light of Kokesh v. SEC and FTC v. Actavis. The Note will then review the types of mediation techniques. In patent infringement suits generally, including pay-for-delay cases, this Note proposes that greater weight be given to evaluative mediation techniques should the FTC and pharmaceutical companies engage in mediation proceedings.
Disciplines
Dispute Resolution and Arbitration | Law | Legal Remedies | Securities Law
Recommended Citation
Jennifer Kim,
Is Disgorgement a Penalty in the Antitrust-Enforcement Realm?: Exploring Mediation as the FTC's Response to Kokesh in the Context of Reverse Payment Settlements,
20
Cardozo J. Conflict Resol.
163
(2018).
Available at:
https://larc.cardozo.yu.edu/cjcr/vol20/iss1/10
Included in
Dispute Resolution and Arbitration Commons, Legal Remedies Commons, Securities Law Commons