NY Settlement May Inform Pharmaceutical Antitrust Cases

The New York Attorney General reached a settlement in an antitrust case between two generic drug manufacturers that had an agreement not to challenge each other’s eligibility for regulatory exclusivity. The theory of harm reflects the U.S. Supreme Court’s recent ruling on reverse payment patent settlements in FTC v. Actavis. The issue in that context was said to arise because a patentee was using its monopoly profits to “prevent the risk of competition.” Under the terms of the New York settlement the parties agreed to pay the state $300,000 and terminate the agreement.