Life After Actavis

Life After Actavis

by | Jan 22, 2019 | Blog

Dr. Rob Knueper

As we head into 2019, there have been a wide variety of court decisions in pay for delay antitrust cases since the 2013 Actavis Supreme Court decision. These decisions grapple with key economic and legal issues such as causation, antitrust injury and ascertainability.

One of the central economic questions in these cases involves the economic inferences that can be made based on the type and size of a reverse payment. I grappled with these same issues during my six years as an FTC economist analyzing pay for delay cases. As part of the team that developed the Commission’s policy in this area we also developed appropriate economic and financial tools that can be used to analyze the likely competitive effects associated with certain types and sizes of reverse payments. These same economic and financial tools can also benefit legal practitioners currently working on pay for delay cases.

For example, standard and well accepted financial techniques can be used to evaluate the relationship between the size of the payment and the length of time that the generic firm is incentivized to delay its entry. This type of analysis generally shows that relatively small reverse payments can be used to incentivize generic firms to substantially delay their entry.
However, the actual relationship between size of payment and incentive to delay depends on various factors, such as: market growth, the discount rate, and the relevant but for world.

Careful evaluation of these market factors is crucial towards developing a reliable economic model that can be used to not only support a finding of liability and antitrust injury, but also form a basis for measuring damages and evaluating common impact.

Pay For Delay Debate Post Actavis Decision

Pay For Delay Debate Post Actavis Decision

by | Feb 16, 2018 | Blog

Since the Supreme Court’s decision in Actavis (2013), there have been many “pay for delay” class action suits with a wide variety of legal outcomes.  Given the emphasis in the Actavis decision on the size of the reverse payment, many Court decisions in this area have involved how to evaluate the relationship between the type and size of “reverse payment” and the implications for liability, anticompetitive effects and antitrust injury.  What type of payment (e.g., only cash) is necessary to meet the Actavis standard?  What size of payment is necessary to infer a likelihood of anticompetitive effects?  What type of analyses and weight should be given to procompetitive explanations of “reverse payments”?

I grappled with these same issues during my six plus years analyzing “pay for delay” cases as an economist working at the Federal Trade Commission.  I was fortunate enough to be part of the FTC team that developed the Commission’s policy in this area and the appropriate economic and financial tools that could be used to analyze the likely competitive effects associated with certain types and sizes of “reverse payments.”  These same economic and financial tools can also be of great assistance to legal practitioners currently working on “pay for delay” cases.

For example, standard and well accepted financial techniques, such as net present value, can be used to evaluate the relationship between the size of the payment and the length of time that the generic firm is incentivized to delay its entry.  This type of analysis generally shows that relatively small “reverse payments” (e.g., in the millions) can be used to incentivize a generic firm to be willing to substantially delay its entry (e.g., more than six months).  Also, not surprisingly, this relationship applies regardless of if the form of “reverse payment” is cash or some other type of compensation such as what is commonly referred to as a “No AG” provisions.  However, the actual relationship between size of payment and incentive to delay depends on various factors such as market growth and the relevant discount rate.  Careful evaluation of these market factors is crucial towards developing a reliable economic model that can be used to not only support a finding of liability and antitrust injury, but also form a basis for measuring damages and evaluating common impact.

In the Beginning…

In the Beginning…

by | Feb 7, 2018 | Blog

Find out what Dr. Jamie McClave Baldwin had to say about leadership, business and how those two things intersect below.

If you could summarize your general philosophy on life, what would it be?

Be generous. Work hard. Stay humble. Forgive easily.

It’s my own version of The Four Agreements (which I love but find hard to remember sometimes). If I find myself off course, I am usually not doing one of these things. When I go back to the basics, the path always becomes clear.

If you were to summarize your general philosophy on business, what would it be?

See above. 😉

In a perfect world, how would the two overlap?

I’ve never really understood why there would be a difference between life philosophy and business philosophy. Business is simply a reflection of our values and our life philosophy.  I don’t buy it when someone tries to tell me “business is business” as an excuse for treating someone poorly or cutting corners. How you do anything is how you do everything. Freedom is having all parts of your life in alignment. Infotech is a place where we are lucky to have that overlap. Where we get to be kind and generous, work hard, stay humble, forgive easily. We get to be ourselves.

If you were to give a TED talk to an audience full of young women entering the workforce, what are five things you’d like them to know?

  1. Doers make mistakes. If you’re not failing, you’re not trying. Forgive your mistakes, learn, move on. We need doers.
  2. Everyone suffers from imposter syndrome. Even the most experienced and educated person in the room. Do it anyway. Be nervous and unready and do it anyway. Do it scared.
  3. Take nothing personally. You will face unfairness. You might feel insulted from time to time. You can’t control what other people do or think but you can control how you react. The difference between humans and most of the animal kingdom is that we get to choose our thoughts – maybe not that first knee jerk thought – but all the ones after that. We all have instant reactions. Learn to pause and think about how you want to choose to react. Let the first feeling pass and then think.  Get in line with your values and act accordingly.
  4. No one is laying in bed at night thinking about the mistakes you made. We all lay in bed at night thinking about our own mistakes – I know I do! So don’t worry so much about what others think about you – they aren’t.  Take care of yourself and your loved ones. Limit whose opinions you let matter and guide you.
  5. Lead from where you are. Leadership is not about a title. It is about getting off the bench and into the game. Even if that means cheering from the sidelines. Get in the game. Do something to make a difference. Take the initiative. Stand up for someone in need. You might find yourself having made a wrong choice or messing something up but at least you are trying (see #1 above).