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Antitrust Alert: In re Modafinil Litigation Finds No “Threshold Burden” in Reverse Payme…

January 30, 2015

Summary: On Wednesday, January 28, in King Drug Company of Florence, Inc. v. Cephalon, Inc. (In re Modafinil), the US District Court for the Eastern District of Pennsylvania held that FTC v. Actavis, 133 S. Ct. 2223 (2013), does not require plaintiffs in an antitrust case challenging a brand-generic patent litigation settlement to meet any sort of “threshold burden” of establishing that a large reverse payment is unjustified to trigger analysis under the antitrust rule of reason. In so holding, the court arguably shifted to defendants the burden of establishing a justification for any reverse payment made.

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