Antitrust and Consumer Protection
Competition: Spring 2016, Vol 25, No. 1
Content
- 2015: a Year of Big Plaintiff Wins In Antitrust and Privacy Cases
- Big Stakes Antitrust Trials: O'Bannonvnational Collegiate Athletic Association
- California Antitrust and Unfair Competition Law Update: Procedural Law
- California Antitrust and Unfair Competition Law Update: Substantive Law
- Chair's Column
- Editor's Note
- Ftc Data Security Enforcement: Analyzing the Past, Present, and Future
- Golden State Institute 25Th Anniversary Retrospective and Prospective Views On California Antitrust and Unfair Competition Law
- Keynote Address: a Conversation With the Honorable Tani Cantil-sakauye, Chief Justice of California
- Managing Antitrust and Complex Business Trials-a View From the Bench
- Masthead
- Royal Printing and the Ftaia
- Settlement Negotiation Tactics, Considerations and Settlement Agreement Provisions In Antitrust and Ucl Cases: a Roundtable
- The Decision of the Supreme People's Court In Qihoo Vtencent and the Rule of Law In China: Seeking Truth From Facts
- The Nexium Trial Pioneers Actavis' Activation: a Roundtable of Nexiums Counsel Reflect On Their Six-week Trial
- The Ucl-now a Money Back Guarantee?
- Considerations, Not Limitations: An Argument Against Defining the Anticompetitive Harm Under F. T.C. Vactavis As the "Elimination of the Risk of Potential Competition"
CONSIDERATIONS, NOT LIMITATIONS: AN ARGUMENT AGAINST DEFINING THE ANTICOMPETITIVE HARM UNDER F. T.C. VACTAVIS AS THE "ELIMINATION OF THE RISK OF POTENTIAL COMPETITION"
By Anna M. Fabish1
I. INTRODUCTION
Litigants agree on little when it comes to reverse payment settlements and the interpretation of F.T.C. v. Actavis. Notably, neither litigants nor the courts have reached consensus on how to define the anticompetitive harm that underlies a reverse payment antitrust violation.
Plaintiffs and the Federal Trade Commission have attempted to convince courts to narrowly define the relevant anticompetitive harm as the mere "elimination of the risk of potential competition." Under this proposed definition, the harm to competition giving rise to an antitrust violation is complete at the time a reverse payment settlement is executed: executing the settlement either eliminates the risk of potential competition or it does not, regardless of actual outcomes later on.