Second Circuit Cipro Decision Affirms No Per Se Antitrust Violation for Reverse-Payment Settlements, but Invites Petition for Rehearing En Banc
By Michael P. A. Cohen, Eric W. Dittmann, Katie Wood, and Shenade M. Walker
The legality of pay for delay or reverse payment settlements in Hatch-Waxman litigations has been a hotly contested and closely watched topic over the past decade. On April 29, 2010, the Second Circuit, following a previous panel decision of that court, rejected a claim that reverse-payment settlements constitute per se antitrust violations in In re Ciprofloxacin Hydrochloride Antitrust Litigation (Cipro). In rendering its decision, however, the court identified several reasons for potentially revisiting that precedent, inviting plaintiffs to petition for rehearing en banc to allow the full Court to consider the difficult questions at issue and the important interests at stake. Cipro, Slip Op. at 19.