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Understanding Generic Drug Antitrust Litigation: A Look at “Pay For Delay” and FTC v. Actavis

Total Credits
1 - 1.2
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In 2013, the United States Supreme Court issued a decision involving patent and antitrust law in Federal Trade Commission v. Actavis, Inc., 570 U.S. , 133 S. Ct. 2,rns (2013). The Court held that a "pay for delay" or "reverse payment" settlement agreement between a brand name pharmaceutical company and a generic pharmaceutical company to delay generic entry could constitute a violation of the antitrust laws. The Court identified a number of factors lower courts should consider under the "rule of reason" when analyzing a "pay for delay" or "reverse payment" settlement agreement under the antitrust laws. This seminar will provide a brief background on the antitrust laws and then delve into the Hatch-Waxman Act, which provides the framework for generic drugs to quickly and efficiently come to market. The presentation will focus on the "brand maturation strategies" pharmaceutical companies employ to allegedly prevent or delay generic entry and the Actavis decision. It will provide a greater understanding of the "pay for delay" or "reverse payment" generic drug antitrust litigations brought on behalf of wholesalers, retailers, prescription drug insurers and consumers against branded and generic pharmaceutical companies. The presentation has been prepared for non­ antitrust/patent lawyers in order to make the relevant regulatory and antitrust laws straightforward and easy to comprehend.

Lecturer Bio

Michael Buchman, Esq.

Michael Buchman has more than 20 years of experience, primarily litigating antitrust, consumer protection and privacy class actions in trial and appellate courts.

Michael has a diverse antitrust background, having represented as lead or co-lead counsel a variety of plaintiff clients, from Fortune 500 companies to individual consumers, in complex cases covering matters such as restraint of trade, price-fixing, generic drug antitrust issues and anticompetitive “reverse payment” agreements between brand name pharmaceutical companies and generic companies. Michael leads Motley Rice’s antitrust team.

Michael served as an Assistant Attorney General in the New York State Attorney General’s Office, Antitrust Bureau, after receiving his LL.M. degree in International Antitrust and Trade Law. Also prior to joining Motley Rice, he was a managing partner of the antitrust department at a New York-based class action law firm. He played an active role in resolving two of the largest U.S. multi-billion dollar antitrust settlements since the Sherman Act was enacted, In re NASDAQ Market-Makers Antitrust Litigation and In re Visa Check/Mastermoney Antitrust Litigation, as well as litigated numerous multi-million dollar antitrust cases. Today, he represents the largest retailer class representative in the $7.2 billion case In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, MDL 1720.*

Michael has more than 18 years of experience representing consumers, union health and welfare plans, and health insurers in “generic drug” litigation such as In re Augmentin Antitrust Litigation, In re Buspirone Antitrust Litigation, In re Ciprofloxacin Antitrust Litigation, In re Flonase Antitrust Litigation, In re K-Dur Antitrust Litigation, In re Relafen Antitrust Litigation, In re Tamoxifen Antitrust Litigation, In re Toprol XL Antitrust Litigation and In re Wellbutrin SR Antitrust Litigation. He also has experience litigating a large aviation antitrust matter, as well as aviation crash, emergency evacuation and other aviation cases in federal and state court.

Michael completed the intensive two-week National Institute for Trial Advocacy National Trial Training program in Boulder, Colo., in 2002. An avid writer, he has authored and co-authored articles on procedure and competition law, including a Task Force on Dealer Terminations for The Association of the Bar of the City of New York, Committee on Antitrust and Trade Regulation, entitled Dealer Termination in New York dated June 1,1998 and What's in a Name - the Diversity Death-Knell for Underwriters of Lloyd's of London and their Names; Humm v. Lombard World Trade, Inc., Vol. 4, Issue 10 International Insurance Law Review 314 (1996).

Michael is active in his community, serving as a member of the Flood and Erosion Committee for the Town of Westport, Ct., and as pro bono counsel in actions involving the misappropriation of perpetual care monies. He has also coached youth ice hockey teams at Chelsea Piers in New York City.

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