George Laevsky Authors ABA Article on 2nd Circuit’s Actavis Decision

George Laevsky, an associate in the antitrust practice at Akin Gump, has written the article “Beyond Aspen? The Second Circuit Pushes the Section Two Envelope in New York v. Actavis,” which was published in Monopoly Matters, a newsletter of the American Bar Association’s Unilateral Conduct Committee.

The article addresses a case in which the New York attorney general sued Actavis, a pharmaceutical company, and a subsidiary for transitioning consumers from one of its drugs to another. Laevsky writes that the matter highlights the drug industry’s “peculiarities caused by the Hatch-Waxman Act, state generic substitution laws, and the consumer-payor disconnect, which stifles market forces.”

The article proceeds to provide an overview of the Actavis case, concluding with how it affects one’s interpretation of Section 2 of the Sherman Antitrust Act. Laevsky also cites the Supreme Court’s 1985 decision in Aspen Highlands Skiing Corp. v. Aspen Skiing Co.by noting that Actavis “goes beyond the outer bounds of [Aspen] by effectively supplanting a company’s unilateral decisions on which products to make and sell.”