After actavis: Seven ways forward

The Supreme Court's decision in FTC v. Actavis is one of the most important antitrust decisions in the modern era. In one fell swoop, the Court eliminated the immunity that most lower courts had applied to "reverse payment"1 settlements (by which a brand-name drug company pays a generic firm to delay entering the market) and made clear that such agreements could violate the antitrust laws. Despite its significance, the Actavis ruling was not the clearest decision ever. The Court could have provided more guidance for lower courts in structuring their antitrust analysis. This symposium consists of seven articles that provide some of the clarity missing in the Court's decision. Respectively, the articles: (1) explain why courts have misconstrued Actavis; (2) articulate the "Actavis inference" and show how it reveals errors in court opinions and scholarship; (3) offer a set of jury instructions that courts can use in reverse-payment cases; (4) explain why brand promises not to introduce their own generics constitute payment; (5) show how state law can target reverse-payment settlements; (6) explain why the Noerr-Pennington doctrine does not immunize reverse-payment settlements; and (7) demonstrate how Actavis can apply beyond the pharmaceutical industry.