Multilateral reverse payment settlements

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Since Actavis, reverse payment settlements have become more complicated – often involving multiple parties in multiple drug and geographic markets. These settlements seem to have become the norm. They raise new challenges for private plaintiffs and the FTC alike. Courts across the country have had different approaches to these complex settlements. We argue that their approach has led to too many anticompetitive behaviors going unenforced. Since Twombly, Courts have put a heavy evidentiary burden on plaintiffs. This burden is often impossible to satisfy. Courts should start from the context of the deals and the theory behind reverse payment, and then add evidence to the specific deal as the plus or supporting factor, instead of some of their current approaches of focusing first and foremost on evidence.