Jeffry W Duffy

July 27, 2018 | The Legal Intelligencer

For over 20 years, purportedly anticompetitive patent-litigation settlement agreements between rival branded and generic pharmaceutical manufacturers—so-called “reverse payment” or “pay for delay” settlements—have generated numerous private lawsuits and ranked as one of the Federal Trade Commission's top enforcement priorities, with private plaintiffs and the FTC alike claiming such agreements have cost consumers millions of dollars by keeping generic drugs off the market.

By Carl W. Hittinger and Jeffry W. Duffy

2 minute read

December 07, 2015 | The Legal Intelligencer

The Federal Trade Commission continued its relentless focus on combinations in the health care industry last month when it filed an administrative complaint challenging a merger of two West Virginia hospitals, In the Matter of Cabell Huntington Hospital.

By Carl W. Hittinger and Jeffry W. Duffy

8 minute read

December 07, 2015 | The Legal Intelligencer

The Federal Trade Commission continued its relentless focus on combinations in the health care industry last month when it filed an administrative complaint challenging a merger of two West Virginia hospitals, In the Matter of Cabell Huntington Hospital.

By Carl W. Hittinger and Jeffry W. Duffy

8 minute read

April 06, 2015 | The Legal Intelligencer

What is an "unfair method of competition" for purposes of the Federal Trade Commission's enforcement powers? For more than 100 years, lawyers, economists and other experts—as well as courts—have debated that question, trying to determine exactly what conduct Congress meant to prohibit, beyond conduct already condemned by the antitrust laws, when it enacted Section 5 of the FTC Act of 1914. The Baker & Hostetler-sponsored Symposium on Section 5, held in Washington, D.C., on Feb. 26, assembled, for the first time in a public forum, key decision-makers and experts from all three branches of government to debate the future of FTC's competition enforcement authority as the agency embarks on its second century. (The last symposium on Section 5 took place in 2008 but was an internal workshop for the FTC.) The vigorous exchange of opinions among the 14 distinguished symposium speakers clarified the terms of the dialogue over whether the FTC should adopt formal guidelines to finally define "unfair methods of competition" and place limits on its enforcement discretion under its "stand-alone" Section 5 authority—that is, its power to pursue anti-competitive conduct not reached by the Sherman or Clayton antitrust acts.

By Carl W. Hittinger and Jeffry W. Duffy

9 minute read

April 03, 2015 | The Legal Intelligencer

What is an "unfair method of competition" for purposes of the Federal Trade Commission's enforcement powers? For more than 100 years, lawyers, economists and other experts—as well as courts—have debated that question, trying to determine exactly what conduct Congress meant to prohibit, beyond conduct already condemned by the antitrust laws, when it enacted Section 5 of the FTC Act of 1914. The Baker & Hostetler-sponsored Symposium on Section 5, held in Washington, D.C., on Feb. 26, assembled, for the first time in a public forum, key decision-makers and experts from all three branches of government to debate the future of FTC's competition enforcement authority as the agency embarks on its second century. (The last symposium on Section 5 took place in 2008 but was an internal workshop for the FTC.) The vigorous exchange of opinions among the 14 distinguished symposium speakers clarified the terms of the dialogue over whether the FTC should adopt formal guidelines to finally define "unfair methods of competition" and place limits on its enforcement discretion under its "stand-alone" Section 5 authority—that is, its power to pursue anti-competitive conduct not reached by the Sherman or Clayton antitrust acts.

By Carl W. Hittinger and Jeffry W. Duffy

9 minute read

December 01, 2014 | The Legal Intelligencer

The Federal Trade Commission has recently brought its considerable institutional weight to bear in two developing areas at the intersection of unfair competition and intellectual property law. Continuing its crusade against "reverse-payment" patent infringement settlements in the pharmaceuticals sector, the FTC is promoting—especially in the Third Circuit—a maximalist interpretation of the U.S. Supreme Court's 2013 FTC v. Actavis, 570 U.S. ___ (2013), decision that may have ramifications in IP-based industries beyond pharmaceuticals. And it scored its first win against another long-term target: a patent assertion entity—pejoratively, a "patent troll"—accused of making misrepresentations to extract money from alleged infringers. Both developments portend a more aggressive use of the FTC's powers in domains previously reserved to IP law and largely protected from antitrust scrutiny, if political factors don't blunt its current momentum.

By Carl W. Hittinger and Jeffry W. Duffy

8 minute read