FTC Reverses Administrative Law Judge Decision, Finding Section 5 Violation for Reverse-Payment Settlement (Impax)

In FTC v. Actavis, the Supreme Court ruled that settlements by which brand drug companies pay generics to delay entering the market could violate antitrust law. In In the Matter of Impax Laboratories, the FTC offered its first elaboration upon this framework. On behalf of all 5 members, Commissioner Noah Joshua Phillips wrote an opinion that was comprehensive, thoughtful, and consistent with Actavis.This piece discusses the opinion. And it offers five observations on it, regarding 1) the longstanding bipartisan FTC consensus challenging pay-for-delay settlements, 2) the comprehensiveness of the opinion, 3) the Commission's impatience on several occasions with the ALJ and Impax, 4) the recognition of the harm from multiple types of anticompetitive conduct (settlements and product hopping) in combination, and 5) the FTC's balanced approach. The Impax ruling presents a model for future analyses of pay-for-delay settlements