Plausibly Alleging Non-Monetary Settlements As Reverse Payments After Actavis

In In re Lipitor Antitrust Litigation, No. 12 Civ. 2389 (D.N.J.), U.S. District Judge Peter G. Sheridan has confirmed his prior ruling that under the Supreme Court's decisions in Twombly, Iqbal, and FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013), plaintiffs claiming an antitrust violation based on a non-monetary settlement must allege the value of the settlement to survive dismissal of their complaint.

In a previous post, we mentioned Lipitor  as a " reverse payment" case that was decided in the wake of Actavis. In Actavis, the Supreme Court ruled that reverse payments—in which a plaintiff, typically a brand-name drug maker, in a patent infringement action agrees to pay the alleged infringer, typically a generic drug manufacturer, to keep the generic maker's product off the market for a period of time—can "sometimes violate the antitrust laws." But the Court did not decide whether a settlement where no actual cash changes hands can qualify as a potentially unlawful