Posted by Social Science Research Network
Brief of Amici Curiae 49 Professors in Support of Petitioners – Michael A. Carrier (Rutgers University School of Law – Camden) and Judith Zahid (Zelle Hofmann Voelbel & Mason LLP)
ABSTRACT: In FTC v. Actavis, the U.S. Supreme Court held that a brand-name drug company’s payment to a generic firm to delay entering the market could violate the antitrust laws. What does that mean for the earlier opinion of the California Court of Appeal in the “Cipro” case that had upheld Bayer’s payment of $398 million to generics? This amicus brief, filed in the California Supreme Court on behalf of 49 Professors, answers that question in three steps.
The first explains how the Actavis ruling knocked out each of the six pillars that had supported the California Court of Appeal’s decision. These pillars were based on (1) exclusion payments’ supposed lack of anticompetitive effects, (2) the toothless “scope of the patent” test, (3) a dispositive public policy favoring settlement, (4) the public policy (or at least one strand) underlying patent law, (5) the alleged need for exclusion payments to attain settlements, and (6) the “natural” status of exclusion payments.
The second step concludes, based on the Cartwright Act, section 16600 of the Business and Professions Code, and the Unfair Competition Act, that California law reaches beyond federal law in its emphasis on consumer welfare and condemnation of trusts.
And the third explains that preemption doctrine does not prevent California courts from rigorously analyzing settlements like the one in this case.
Featured News
Geradin Partners Expands Paris Office with Key Hire
Aug 30, 2024 by
CPI
Judge Accuses Google of ‘Clear Abuse’ in Antitrust Case Over Deleted Employee Chats
Aug 29, 2024 by
CPI
Hong Kong Cleaning Company Employee Charged in Historic Antitrust Investigation Case
Aug 29, 2024 by
CPI
Inside the Yelp Suit: Allegations of Google’s Abuse of Search Power
Aug 29, 2024 by
CPI
AI Safety Bill Clears Hurdle in California, Heads to Governor’s Desk
Aug 29, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – State Attorneys General
Aug 22, 2024 by
CPI
CPI Talks… …With Attorney General Phil Weiser
Aug 22, 2024 by
CPI
The Bipartisan Miracle of State Antitrust Enforcement
Aug 22, 2024 by
Gwendolyn J. Lindsay Cooley
Recent Developments in State Antitrust Enforcement: Agriculture and Food Markets
Aug 22, 2024 by
Elizabeth R. Odette
State Attorneys General: Stewards of Consumer Health and Welfare
Aug 22, 2024 by
Brooke Howlett Lovrovich