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June 30, 2015

Comments

These kinds of agreements have been challenged on AT grounds by the FTC, myself, and others for many years. Those who foolishly entered into them are now likely to suffer treble damage suits.

Dear Paul:

Perhaps, and perhaps rightfully so. But several cases before several courts of appeal did not think these agreements raised antitrust issues, and three members of the Court didn't think so, either. Remember that the FTC argued for years that these agreements were per se antitrust violations, while the Court was willing to go only so far as to say they may raise antitrust issues.

My point: it isn't as black (hat) and white (hat) as the FTC and others have argued, and I think treble damages would be a stretch, particularly for agreements that were entered into (such as this one) almost a decade ago.

Thanks for the comment.

Paul,

I completely agree with Kevin that you've gone "overboard" in suggesting that such agreements are "foolish" and that treble damages are in play. If anything, it's the FTC that needs to be reigned in with it's outlandish suggestions that all reverse payment agreements are per se AT violations.

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