Actavis at 4: Pay-for-Delay Lawsuits Receding

Law360
June 20, 2017

Gregory Asciolla shares his thoughts on the fourth anniversary of SCOTUS’ Actavis decision on pay-for-delay lawsuits

In its 2013 decision in Federal Trade Commission v. Actavis, the U.S. Supreme Court supported the Federal Trade Commission’s view that pharmaceutical patent dispute settlements that transfer consideration from a brand drug company to a generic should be subject to antitrust scrutiny, triggering a wave of pay-for-delay litigation.

Law360 noted that firms specializing in representing plaintiffs in high-profile class actions against pharmaceutical companies have lost their desire to pursue pay-for-delay litigation. However, according to Firm partner Gregory Asciolla, drugmakers are still making those agreements.

Pay-for-delay cases have their challenges but no more than other kinds of complex antitrust litigation, said Asciolla, whose firm has brought a substantial number of such cases against brand and generic manufacturers. Law in the area is still developing in the wake of Actavis, and there are still novel issues being raised in the cases, he said.

It is too soon to say whether the drop in potentially anticompetitive reverse payment settlements is part of a consistent downward trend or if it simply represents a temporary dip in the agreements, Asciolla said. Rulings by circuit courts that have somewhat clarified when settlements run afoul of antitrust law could embolden companies to pursue further agreements, he said.

In any case, plaintiffs firms will not be shy about bringing pay-for-delay suits against drug companies in the future, Asciolla said.

"As long as the agreements exist, and after investigating and looking closely at them we determine there are potentially anticompetitive effects, we certainly will have an appetite to pursue litigation," he said.