Tagged: Settlement

Opinion Holds That Non-Monetary Reverse Payments Trigger Actavis Antitrust Scrutiny, Creating Split Within D.N.J. 0

Opinion Holds That Non-Monetary Reverse Payments Trigger Actavis Antitrust Scrutiny, Creating Split Within D.N.J.

An opinion issued on October 6, 2014, by Judge Sheridan of the United States District Court for the District of New Jersey further muddied the legal waters as to what type of “reverse payments” made by makers of brand-name pharmaceuticals to their generic competitors to settle patent litigation are subject to antitrust scrutiny under the Supreme Court’s decision in FTC v. Actavis. Judge Sheridan held that Actavis applies to non-monetary payments, such as a promise by the brand-name manufacturer in exchange for which the generic agrees to delay entry. Importantly, however, a non-monetary payment must be capable of being reliably converted to a monetary value so that it can be evaluated against the Actavis factors. Judge Sheridan’s holding runs counter to Judge Walls’s decision earlier this year in In re Lamictal Direct Purchaser Antitrust Litigation, which limited Actavis to reverse payments involving an exchange of cash and was the subject of a prior blog post.

Court Holds Only Reverse Payment of Money Requires Actavis Antitrust Scrutiny 0

Court Holds Only Reverse Payment of Money Requires Actavis Antitrust Scrutiny

Recent years have seen a significant number of antitrust challenges to so-called “reverse payment” pharmaceutical patent litigation settlements between brand name manufacturers and their generic competitors. The Supreme Court’s decision in FTC v. Actavis resolved a split among the courts of appeal, and held that settlements in which “large and unjustified” reverse payments are made are subject to antitrust scrutiny in the form of a traditional “rule of reason” analysis. In the wake of Actavis, the lower courts have begun to grapple with the question of what, if any, application Actavis has to the disposition of antitrust challenges to patent settlements that do not include a large payment of cash by the brand producer to the generic, but may include other forms of non-monetary consideration.

New Jersey Supreme Court Upholds Oral Settlement Reached During Mediation, But Requires Future Settlements to Be Written 0

New Jersey Supreme Court Upholds Oral Settlement Reached During Mediation, But Requires Future Settlements to Be Written

In a recent 6-0 opinion, the New Jersey Supreme Court has held that, going forward, settlement agreements reached during court-ordered mediation must be reduced to a signed writing before mediation ends in order to be enforceable. The Court also found that a party waives New Jersey’s mediation-communication privilege, set forth in N.J.R.E. 519, by not objecting to evidence of conversations that took place during the mediation and by offering evidence of mediation communications.

Pennsylvania Superior Court Defines Standard for Determining Insurer’s Control of Litigation and Settlement When Seeking to Defend Insured Subject to a Reservation of Rights 0

Pennsylvania Superior Court Defines Standard for Determining Insurer’s Control of Litigation and Settlement When Seeking to Defend Insured Subject to a Reservation of Rights

The Pennsylvania Superior Court recently set forth a new standard for determining when an insured must seek the insurer’s consent to settle underlying third-party claims where the insurer had previously offered to defend the insured under a reservation of its right to decline coverage for any adverse judgment that might be entered against the insured later.

Plaintiffs in Moldy Washing Machine Litigation May Proceed as a Class 0

Plaintiffs in Moldy Washing Machine Litigation May Proceed as a Class

A recent Seventh Circuit decision, authored by Judge Richard Posner, could have an impact on future class action litigations. In Butler, et al. v. Sears, Roebuck & Co.,—a lawsuit involving product defects that allegedly cause mold buildup in washing machines sold by Sears between 2001 and 2004—the Seventh Circuit sought to clarify “predominance,” a concept that, in the context of class action litigation, has been shrouded by ambiguity. In its opinion, the Seventh Circuit explained that “[p]redominance is a question of efficiency.” Put simply, predominance asks whether it is “more efficient . . . to decide some issues on a class basis or all issues in separate trials?”

Failure to Strictly Comply With the Express Terms of the Notice Provisions in a Claims-Made Insurance Policy Will Forfeit Available Coverage 0

Failure to Strictly Comply With the Express Terms of the Notice Provisions in a Claims-Made Insurance Policy Will Forfeit Available Coverage

The Third Circuit’s recent decision in Atlantic Health System Inc. v. National Union Fire Insurance Company of Pittsburgh confirms the importance of strictly following the notice requirements of a claims-made policy and the relevance of the parties’ course of prior and subsequent performance on the ultimate interpretation of allegedly ambiguous policy terms and conditions. In this case, the failure to strictly comply with the notice requirements resulted in AHS retaining liability for more than $2 million of defense costs and settlement payments.

Best Practice for Retention of Federal Jurisdiction to Enforce a Settlement Agreement 0

Best Practice for Retention of Federal Jurisdiction to Enforce a Settlement Agreement

Since the vast majority of civil cases end in settlement, litigants must remain mindful of ensuring judicial enforcement of a settlement agreement. If you thought all that was necessary to provide for continuing judicial supervision is a clause in your settlement agreement or stipulation of dismissal stating that the federal court shall retain jurisdiction to enforce its provisions, please think again. As District Judge Noel L. Hillman recently emphasized in Brass Smith, LLC v. RPI Industries, Inc., federal courts are courts of limited jurisdiction and jurisdiction cannot be created by the private agreement of the parties. Nor do district courts have “inherent power” to enforce settlements. Unless you have taken the proper steps or there is an independent basis for jurisdiction (such as diversity of citizenship or a federal question), you will probably be obliged to bring a new action in state court to enforce your settlement agreement.