New Reverse-Payment Decision Sheds Further Light On Plaintiffs' Causation Burden

David C Kully is a Partner in Holland & Knight's Washington D.C. office.
Charles A Weiss is a Partner in Holland & Knight's New York office.

As post-Actavis antitrust litigation over so-called "reverse payment" patent settlements proceeds, courts continue to provide further illumination about what evidence a private plaintiff would need to offer to survive summary judgment on the question of whether the settlement agreement was a material cause of its alleged injuries. As we observed in a recent article, private antitrust plaintiffs seeking damages based on delayed launch of generic alternatives to brand pharmaceuticals must show that, in the absence of the settlement agreement and payment by the brand manufacturer, the generic manufacturer would likely have released its product earlier than the agreed date.