Outside Publication

The First Circuit Agrees that Non-Cash Reverse Payments are Subject to Antitrust Scrutiny. Does the Loestrin Decision Point to Battles to Come?, Lexology

March 08, 2016

Recently, the First Circuit became the second federal appellate court interpreting the Supreme Court's landmark decision in FTC v. Actavis, Inc. to hold that non-cash "reverse payments" between pioneer and generic pharmaceutical manufacturers risk antitrust liability.

Like the Third Circuit in King Drug, the First Circuit's decision in In re Loestrin 24 FE Antitrust Litigation held that a pioneer drug manufacturer's agreement not to market an authorized generic product during a generic challenger's 180-day exclusivity period to settle litigation under the Hatch-Waxman Act is subject to rule of reason scrutiny under the Sherman Act.