Calif. Pay-For-Delay Law Lacks Nuance

By Stephen Fink and Anupam Jena (July 17, 2020, 6:11 PM EDT) -- In January, the state of California enacted its new legislation, A.B. 824, making reverse payment patent settlements associated with Hatch-Waxman Act pharmaceutical litigation — or pay-for-delay settlements — presumptively anti-competitive.[1]

This law, which has been subject to legal challenges and is currently being appealed with oral arguments taking place earlier this month, differs from existing legal antitrust precedent established by a number of federal court cases as well as Federal Trade Commission enforcement policies.[2] This includes the U.S. Supreme Court's ruling in FTC v. Actavis which established that a rule-of-reason analysis is to be used rather than assuming that "reverse payment...

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