Merger Cops May Have Untapped Tools for Stopping Deals
David Newman was quoted in The Deal, weighing in on how the 2013 ruling against drug maker Actavis may give future antitrust enforcers and private plaintiffs more leeway when pursuing a wide variety of competition cases, including against mergers. Despite musings about the Actavis ruling's applicability to actions besides pay-for-delay settlements, regulators and plaintiffs so far have not relied on it to bring cases in other areas.
"There's some logic to the notion that Actavis can be applied elsewhere," David said, noting that the ruling makes it easier to use the “rule of reason” to determine whether an action is anticompetitive. "There's no limitation on its use in other situations," Newman added.
Further, Newman said that the impact of the Supreme Court's 2014 ruling in Alice Corp. v. CLS Bank International, which invalidated Alice's patents on computer programs for financial-trading systems, has been similarly painted with broad-brush implications for the patentability of software in general.
"The Alice decision court opened up the analysis for patent validity and allowed a lot more avenues for patent challenges to be raised," he said, "and it could be the same in the antitrust realm with Actavis."