FTC files amicus brief in case of alleged-reverse payment agreement

By Mark Iandolo | Mar 18, 2016

PHILADELPHIA (Legal Newsline) — The Federal Trade Commission (FTC) recently filed an amicus brief with the U.S. Court of Appeals for the Third Circuit, asking the court to correct legal errors in an antitrust analysis of an alleged reverse-payment agreement between GlaxoSmithLine, Teva Pharmaceuticals and Anchen Pharmaceuticals.

According to the brief, the district court made four errors in its ruling. First, it incorrectly concluded that the rule-of-reason analysis prescribed by the Supreme Court’s 2013 decision in Federal Trade Commission v. Activis Inc. does not apply to the case.

Second, the brief states the court was incorrect in stating the plaintiffs had to prove the reverse-payment settlement resulted in delayed market entry to show an antitrust violation.

Third, the brief concludes the district court erred when it credited the defendants’ justification for the agreement without forcing it to explain how pro-competitive benefits came from the reverse payment.

Finally, the brief notes the court erroneously found the agreement unlawful partly because of a provision within the appeal that allowed all parties to abandon the deal if the FTC objected to it.

The FTC voted 4-0 to file the amicus brief.

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