Chris Sagers, the James A. Thomas Professor of Law, spoke last week with both Bloomberg and the subscription service Law360 about the Federal Trade Commission’s surprising loss in its action against Impax Pharmaceuticals. Impax is important because it is the Commission’s first in-house “pay-for-delay” pharmaceutical case since its dramatic 2013 win before the Supreme Court in FTC v. Actavis. The case is therefore the Commission’s most important opportunity to flesh out the Actavis Court’s laconic opinion and determine how the pay-for-delay standard will be applied going forward. As Sagers explained, the loss was only before the Commission’s own internal Administrative Law Judge, and on appeal to the full Commission it will probably be reversed. Interestingly, the case presents the unusual circumstance that an entirely repopulated Commission will rule on the final appeal than the one that voted out the initial complaint. That makes predictions more difficult than usual. The situation arose because, in part through long delays in appointments and confirmations both in the Obama and the Trump administrations, President Trump is in the unusual position of naming all five members of the agency at once, and the final appeal will be decided by his nominees.
Earlier Sagers spoke with Bloomberg about the pending merger of T-Mobile and Sprint, and the likelihood the deal could withstand U.S. antitrust scrutiny. Since the deal seems essentially just as bad from an antitrust perspective as the deal that AT&T and T-Mobile abandoned following intense antitrust opposition in 2011, Sagers predicted the deal will not survive.
Earlier this month, he spoke with the subscription trade journal Deal Reporter about the pending Justice Department challenge to the merger of AT&T and Time Warner, and another subscription journal, FTC:Watch, about the so-called “Hipster Antitrust” movement and the viability of the traditional consumer welfare standard.