Reverse-Payment Settlements: Presumptively Bad or Usually Acceptable?

Posted by D. Daniel Sokol

C. Kyle Musgrove & Richard Ripley (Haynes and Boone) ask Reverse-Payment Settlements: Presumptively Bad or Usually Acceptable?

ABSTRACT: In April 2012, the Federal Trade Commission ("FTC") suffered yet another rebuke of what FTC Chair Jon Leibowitz has characterized as "one of the Commission's top competition priorities," i.e., stopping "reverse payment" settlements in drug patent litigation. The Eleventh Circuit's decision in the AndroGel case presents an opportunity to review the concept of reverse payment settlements, the agency's persistent condemnation of these agreements, the courts' near-unanimous endorsement of the concept, and assess which side holds the better hand.