Brief of the American Antitrust Institute and the American Independent Business Alliance as Amicus Curiae in Support of Respondents, Comcast Corp. V. Behrend, Supreme Court of the United States PDF Download
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Author: Joshua P. Davis
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Languages : en
Pages : 0
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In Comcast Corp. v. Behrend, the United States Supreme Court will decide at least one of two issues regarding class certification: (1) whether plaintiffs seeking to certify a class must provide evidence that is admissible, including only expert evidence that can survive a Daubert challenge; and (2) whether plaintiffs must show that a case is susceptible to awarding damages on a class-wide basis for a court to certify a class under Rule 23(b)(3). The first issue is about how plaintiffs must make their showing -- using admissible evidence? -- and the latter about what showing plaintiffs must make. This amicus brief filed on behalf of the American Antitrust Institute and the American Independent Business Alliance attempts to guide the Supreme Court so that it does not inadvertently disrupt settled doctrine about the second issue: what showing plaintiffs must make to have a court certify a class.
Author: Joshua P. Davis
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Languages : en
Pages : 0
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In Comcast Corp. v. Behrend, the United States Supreme Court will decide at least one of two issues regarding class certification: (1) whether plaintiffs seeking to certify a class must provide evidence that is admissible, including only expert evidence that can survive a Daubert challenge; and (2) whether plaintiffs must show that a case is susceptible to awarding damages on a class-wide basis for a court to certify a class under Rule 23(b)(3). The first issue is about how plaintiffs must make their showing -- using admissible evidence? -- and the latter about what showing plaintiffs must make. This amicus brief filed on behalf of the American Antitrust Institute and the American Independent Business Alliance attempts to guide the Supreme Court so that it does not inadvertently disrupt settled doctrine about the second issue: what showing plaintiffs must make to have a court certify a class.
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Languages : en
Pages : 0
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Languages : en
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Author: Michael A. Carrier
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Category :
Languages : en
Pages : 16
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In Mylan v. Warner Chilcott, a Third Circuit panel offered a highly questionable decision on “product hopping,” by which a pharmaceutical company switches from one version of a drug to another.Mylan offered a simple and compelling anticompetitive story: (1) defendants were the exclusive sellers of an unpatented branded drug; (2) when generics appeared on the horizon, they introduced a minor modification of the drug and removed the older version from the market to delay generic entry (and did this several times); (3) when generic entry finally occurred against a version of the drug that defendants could not hop away from, prices fell sharply; and (4) had the product hops not occurred, Mylan (and other generics) would have entered much sooner, prices would have fallen much sooner, and consumers (and third-party payors) would have obtained the benefits of the lower prices.Despite this significant evidence of anticompetitive conduct, the court granted summary judgment for defendants, issuing erroneous rulings on monopoly power and (in dicta) exclusionary conduct. The panel misapplied standard monopoly-power law, misconstrued Third Circuit law in requiring complete foreclosure rather than foreclosure from the most cost-effective means of distribution; failed to pay sufficient attention to the regulatory regime; and offered a decision that conflicted with the other appellate decision on product hopping, the 2nd Circuit's “Namenda” decision.This brief seeks a rehearing en banc in the Third Circuit or, at a minimum, the panel's withdrawal of the exclusionary-conduct section of the opinion.
Author: Michael A. Carrier
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Category :
Languages : en
Pages : 0
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In FTC v. Actavis, the Supreme Court held that a payment from a brand firm to a generic firm, in exchange for the generic's agreement to delay entering the market, could violate the antitrust laws. In In re Wellbutrin XL Antitrust Litigation, defendants claim that the Court's antitrust analysis applies only if the brand pays the generic in cash. This amicus curiae brief, submitted in the Eastern District of Pennsylvania on behalf of the American Antitrust Institute and Consumers Union, reveals five problems with this formalistic argument. First, the brand's agreement not to launch an "authorized generic" during the first-filing generic's 180 days of exclusivity can transfer tens or hundreds of millions of dollars to the generic. Brands are increasingly making these types of payments in exchange for generics' reciprocal agreements to drop patent challenges and delay entering the market. Second, both Actavis' language and fundamental antitrust law prevent defendants from distinguishing Actavis based on the form of payment that the brand makes in exchange for the generic's delayed entry. A payment by means of a no-authorized-generic agreement, no less than by means of an above-market-value business deal (by which the brand overpays for unrelated services provided by the generic), can have significant anticompetitive effects. Third, in the Wellbutrin XL case, the brand firm and the generic with the 180-day exclusivity period allocated the market between themselves by exchanging non-competition pledges. The generic agreed to delay entry, and in exchange, the brand agreed not to launch an authorized generic during the 180-day exclusivity period. In all material respects, this transaction has the same economic structure and effect as the agreement in Actavis. Fourth, Actavis held that the payment there - an above-market-value business deal - was suspect because it transferred value to the generic that it could not have obtained even if it had won the patent case. Similarly, in this case, the generic could not have blocked the brand from entering with an authorized generic even if the generic had won the patent case. In both Actavis and Wellbutrin XL, the brand firm bought an additional delay in generic entry, beyond any delay legitimately reflecting a compromise on disputed patent rights, by granting to the generic valuable consideration that even a patent win could not have delivered. Fifth, the brand cannot avoid antitrust scrutiny by invoking the label "exclusive license." The brand in this case did not merely grant to the generic the right to enter free from competition from an authorized generic; it granted that right in exchange for the generic's reciprocal agreement to drop the patent challenge and delay entry. Thus, a proper antitrust analysis must consider the "exclusive license" not in abstract isolation, but in its real economic context as one part of the two drug firms' reciprocal agreements not to compete. In short, if drug companies can evade the logic of Actavis by artfully structuring settlements that are indistinguishable in economic substance from cash payments for delay, the Supreme Court's ruling will be reduced to a dead letter.
Author: Michael A. Carrier
Publisher:
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Category :
Languages : en
Pages : 0
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This Supreme Court amicus brief, filed in Federal Trade Commission v. Watson, explains why exclusion-payment settlements, by which brand-name drug companies pay generic firms to delay entering the market, contravene the policies of patent law, antitrust law, and the Hatch-Waxman Act. It addresses five points. First, the settlements are not consistent with the Hatch-Waxman Act, Congress's framework for balancing patent and antitrust law in the pharmaceutical industry, which encouraged generics to challenge patents. Second, the settlements are anticompetitive, serving as a form of market division, which is the practical result when brands pay generics to drop challenges to weak patents and delay entering the market instead. Third, the mere fact of a patent cannot justify the payments. The Patent Office frequently issues invalid patents, and the patents at the heart of these settlements present concern, often covering not the drug's active ingredient but narrower aspects like the formulation or method of use that are less innovative and bear more potential for anticompetitive mischief. Patent policy encourages challenges to weak patents, and the procedural presumption of validity does not justify the settlements. Fourth, exclusion payments are not needed to settle cases in the public interest; history has shown that brands and generics can reach settlements without them. Fifth, the most appropriate antitrust framework employs a “quick look” rule-of-reason analysis that treats exclusion payments as presumptively unlawful. Such a framework recognizes the potentially severe anticompetitive effects of exclusion-payment settlements while permitting the settling parties to introduce possible procompetitive justifications, if any, for their agreement.
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Publisher: Aspen Law & Business Publishers
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Category : Business & Economics
Languages : en
Pages : 254
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Author: Richard R. John
Publisher: Harvard University Press
ISBN: 0674088131
Category : Business & Economics
Languages : en
Pages : 529
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The telegraph and the telephone were the first electrical communications networks to become hallmarks of modernity. Yet they were not initially expected to achieve universal accessibility. In this pioneering history of their evolution, Richard R. John demonstrates how access to these networks was determined not only by technological imperatives and economic incentives but also by political decision making at the federal, state, and municipal levels. In the decades between the Civil War and the First World War, Western Union and the Bell System emerged as the dominant providers for the telegraph and telephone. Both operated networks that were products not only of technology and economics but also of a distinctive political economy. Western Union arose in an antimonopolistic political economy that glorified equal rights and vilified special privilege. The Bell System flourished in a progressive political economy that idealized public utility and disparaged unnecessary waste. The popularization of the telegraph and the telephone was opposed by business lobbies that were intent on perpetuating specialty services. In fact, it wasnÕt until 1900 that the civic ideal of mass access trumped the elitist ideal of exclusivity in shaping the commercialization of the telephone. The telegraph did not become widely accessible until 1910, sixty-five years after the first fee-for-service telegraph line opened in 1845. Network Nation places the history of telecommunications within the broader context of American politics, business, and discourse. This engrossing and provocative book persuades us of the critical role of political economy in the development of new technologies and their implementation.
Author: Winifred R. Brown
Publisher:
ISBN:
Category : Court administration
Languages : en
Pages : 180
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Author:
Publisher:
ISBN: 9780314927354
Category : Class actions (Civil procedure)
Languages : en
Pages : 305
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