In re Nexium (Esomeprazole) Antitrust Litigation

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Citation Number: 15-2005, 15-2006, 15-2007

Brief of the Federal Trade Commission arguing that the district court committed legal error by conflating two distinct analyses under antitrust law:  the existence of an antitrust violation, which requires a general showing of harm to the competitive process, and the question of antitrust standing, which requires a specific showing by a private party that, among other things, it suffered an injury-in-fact caused by the violation. The brief also shows that a reverse payment from a brand-name drugmaker used to settle patent litigation can violate the antitrust laws if it induces a generic drugmaker to abandon its patent challenge and stay out of the market regardless of whether the generic would actually have otherwise entered the market sooner than permitted by the settlement agreement.