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The U.S. House of Representatives voted last Tuesday to reject a 2013 Consumer Financial Protection Bureau (CFPB) bulletin that provided guidance regarding liability for discrimination in indirect auto lending. The same measure passed the Senate three weeks earlier and is now expected to be signed by the president. The 2013 guidance was aimed at indirect auto lenders – lenders that work with auto dealers to provide loans for consumers seeking financing through the dealership where…
The Federal Trade Commission (FTC) filed an antitrust complaint this week against Endo Pharmaceuticals and several generic companies, alleging that these companies entered into anticompetitive “reverse payment” settlements of patent infringement litigation under the Hatch-Waxman Act. In its 2013 FTC v. Actavis opinion, the U.S. Supreme Court held that certain settlements involving “reverse payments” may raise antitrust issues, because they represent a payment to a competitor to stay out of the market, rather than reflecting…
The Federal Trade Commission (FTC) filed an antitrust complaint this week against Endo Pharmaceuticals and several generic companies, alleging that these companies entered into anticompetitive “reverse payment” settlements of patent infringement litigation under the Hatch-Waxman Act. In its 2013 FTC v. Actavis opinion, the U.S. Supreme Court held that certain settlements involving “reverse payments” may raise antitrust issues, because they represent a payment to a competitor to stay out of the market, rather than reflecting…
The FTC has recently weighed in again on the evolving interpretation of the Supreme Court’s 2013 opinion in FTC v. Actavis, 133 S. Ct. 2223 (2013). The agency submitted an amicus brief to the Third Circuit in the appeal of the district court’s September 2015 grant of summary judgment in In re Wellbutrin XL Antitrust Litigation, — F. Supp. 3d —- (E.D. Pa. Sept. 23, 2015) (“Wellbutrin XL”). In Wellbutrin XL, direct and indirect purchaser…
“Product-hopping” refers to a practice employed by some brand-name pharmaceutical companies in which the company attempts to shift users from an older prescription drug that is going off-patent and will soon face generic competition to a newly introduced similar product from that company. Often, the new product will have a significant term of patent protection or other exclusivity remaining. “Product-hopping” can be used to fend off generic competition, in part, because it prevents or delays…
In 1914, Congress passed the FTC Act, creating the Federal Trade Commission. Section 5 of the FTC Act declared “unfair methods of competition in or affecting commerce” to be unlawful and gave the FTC enforcement power over such “unfair methods.” Over 100 years later, that key language in Section 5 underlying the agency’s competition-related powers had never been the subject of any formal FTC guidance. Clearly, “unfair methods of competition” include Sherman and Clayton Act…
In a recent opinion, a divided panel of the U.S. Court of Appeals for the Second Circuit ruled that an economic regulation passed by a state agency solely to protect one group from competition would not violate the constitutional guarantees of due process or equal protection. The court noted that such action might still violate antitrust laws, but went no further since no antitrust claim had been raised in the case. At least in the…
In Kimble v. Marvel Entertainment, 576 U.S. ____ (2015), the U.S. Supreme Court considered whether to overturn Brulotte v. Thys, 379 U.S. 29 (1964), its 1964 decision holding that it was per se unlawful for a patent owner to charge royalties for use of a patented invention after the licensed patent has expired. In a 6-3 decision by Justice Elena Kagan, the court in Kimble concluded that it was required by stare decisis to affirm…
Section 5 of the FTC Act gives the Federal Trade Commission the authority to take action against “unfair methods of competition.” The act was enacted over 100 years ago, and its legislative history indicates that it was left to the FTC to provide specific content to this broad and general language. However, there is still little clarity today regarding what conduct qualifies and does not qualify as an “unfair method of competition” that might subject…
Nearly two years after the U.S. Supreme Court’s decision in Federal Trade Commission v. Actavis, 133 S. Ct. 2223 (2013), “reverse payment” settlements in patent litigation between brand-name drug manufacturers and potential generic entrants remain a hot topic in the antitrust world. At the American Bar Association’s Antitrust Law Spring Meeting, held in Washington, D.C., last month, reverse payments were discussed at numerous sessions, including one session devoted exclusively to the topic. Reverse payments are…