Thoughts on the oral argument in In re Cipro Cases I & II

On Tuesday, March 3, 2015, I attended the oral argument in In re Cipro Cases I & II, No. S198616.  (See this post for more on the case.)

The argument was extremely interesting, and very well handled by both sides.  The UCL issue was not mentioned at all, which is not surprising, given the significant and complex antitrust issue the case presents.  All of the justices were active questioners, with the exception of Justice Corrigan, who had no questions until the rebuttal argument.   The two new justices, Justice Cuéllar and Justice Kruger, asked as many questions as any of their colleagues.  This was the first time I had the pleasure of attending an argument since they joined the Court.  They were both very astute questioners.  (Justice Cuéllar's questions boomed out very audibly across the courtroom, but I sometimes had trouble hearing Justice Kruger, even though I was sitting closer to her.) 

On the antitrust question -- which is whether pay-for-delay agreements between pharmaceutical patent-holders and generic-manufacturer competitors should be judged under the per se rule, the rule of reason, or some modified version of the latter -- I predict a split decision. Justice Liu's questions suggested that he favored the per se rule, but the other justices seemed skeptical.  I would not be surprised if they decide to follow the U.S. Supreme Court's lead in Actavis, albeit in a split decision.  That having been said, predicting case outcomes based on appellate arguments is an art that can't be mastered. 

I must say that both of the lawyers who argued this case were extremely well prepared and both did a very good job. 

The opinion is due in 90 days, which means we should see it by no later than Thursday, May 28 (the last opinion-issuance day before the deadline).

Comments

[Jocelyn Larkin]

Who were the lawyers who argued?

[Kimberly A. Kralowec]

Edwin U of Kirkland & Ellis argued for defendant Barr. Professor Mark Lemley of Stanford argued for the plaintiffs.