This morning at 9:00 a.m. in San Francisco, the Court will hear oral argument in In re Cipro Cases I & II, No. S198616. This case involves some interesting questions of antitrust law as well as a sleeper UCL issue.
From the court's docket:
This case presents the following issue: May a suit under the Cartwright Antitrust Act (Bus. & Prof. Code, § 16720 et seq.) be brought to challenge "reverse exclusionary payments" made by pharmaceutical manufacturers to settle patent litigation with generic drug producers and prolong the life of the patents in question?
Put another way, this is a "pay-for-delay" case. The question before the Court is whether "pay for delay" agreements are per se unlawful under the Cartwright Act. In 2013, the U.S. Supreme Court held that such agreements "can sometimes" violate the Sherman Act, and that they should be evaluated under the "rule of reason." FTC v. Actavis, Inc., 133 S.Ct. 2223 (2013). In late 2013, the California Supreme Court ordered the parties to file supplemental briefs on the impact of Actavis.
The sleeper UCL issue is whether a defendant's conduct may be found "unfair" within the meaning of the UCL even if the conduct does not violate the Cartwright Act. The Court of Appeal said no (as discussed here). I believe this answer contravenes Cel-Tech (as explained here and in my amicus brief for CAOC).
If my schedule permits, I plan to attend the argument today and report back on whether the Court or the parties discuss the UCL issue during what promises to be a very engaging argument.