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So Long, Safe Harbor: Pay-for-Delay Riskier After Supreme Court Opinion

This article was originally published in RPM Report

Executive Summary

The Supreme Court’s majority opinion in Federal Trade Commission v. Actavis makes it easier for FTC and private plaintiffs to challenge reverse payment settlements between branded drug companies and their would-be generic competitors. While the opinion declines to find “pay-for-delay” deals presumptively anticompetitive (a win for industry), it also strips a safe harbor used by the appeals courts (a clear loss).

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