The Federal Trade Commission’s Hearings on Competition and Consumer Protection in the 21st Century, Reverse-Payment Settlements, Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University
- Author(s): Tad Lipsky, Joshua Wright, Douglas Ginsburg, John Yun
- Date Posted: 2018
- Law & Economics #: 18-41
- Availability: Full text (most recent) on SSRN
This Comment is submitted in relation to the Federal Trade Commission’s (“FTC”) Hearings on Competition and Consumer Protection in the 21st Century. Specifically, we address the United States Supreme Court’s holding in FTC v. Actavis, Inc. that reverse-payment settlements should be analyzed under the rule of reason. The Court also held that since a full rule of reason analysis is costly and difficult, the size of the settlement may be used a proxy. The idea is that, if a settlement is greater than the potential litigation costs, then this is an indicator of a weak patent, or an attempt by the patent holder to exclude competition—in sum, it indicates that consumer welfare has decreased. We submit this comment based upon our extensive experience and expertise in antitrust law and economics.