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23 Colum. Sci. & Tech. L. Rev. 1 (2021)

handle is hein.journals/cstlr23 and id is 1 raw text is: THE PRICE TAG OF PAY-FOR-DELAY THE COLUMBIA SCIENCE & TECHNOLOGY LAW REVIEW VOLUME XXIII STLR.ORG FALL 2021 ARTICLE THE PRICE TAG OF PAY-FOR-DELAY Robin Feldman* In a landmark decision nearly a decade ago, the U.S. Supreme Court opened the door for antitrust suits against brand and generic pharmaceutical companies who engage in collusive settlements to delay the time for the generic to come to market. With these pay -for-delay agreements, brand-name companies offer prospective generics some form of compensation in exchange for the generic's promise not to enter the market until an agreed-upon date. Laying the groundwork for the lawsuit that would eventually lead to the Actavis decision, the Federal Trade Commission (FTC') published a study estimating that pay-for-delay agreements cost American consumers $3.5 billion annually, a figure that has been cited repeatedly by scholars and policymakers alike. To understand the state of pay-for-delay agreements, this Article presents an in-depth examination of the burden that pay-for-delay imposes, both on society at large and on individual patients, and explores the modern legal landscape that has emerged since the Supreme Court's historic pronouncement. Part I describes pay- for-delay agreements, exploring the literature on the potential harm of such agreements among pharmaceutical competitors. Part II presents a new analysis demonstrating that the cost of pay-for-delay to American consumers is far greater than anyone has recognized, and well beyond the $3.5 billion figure cited by the FTC in 2010. We applied six different methodologies to provide as fair and broad a view as possible. The range of methodologies show that at a minimum, the cost ofpay-for-delay settlements on the U.S. population between 2006 and 2017 is $6.2 * Arthur J. Goldberg Distinguished Professor of Law, Albert Abramson '54 Distinguished Professor of Law Chair, Director, Center for Innovation (C4i), University of California Hastings Law. Research for this piece was funded in part by a generous grant from the Laura and John Arnold Foundation. I wish to express my thanks to Rainy Alsaffar, Chief Data Scientist at C4i, for his work in conducting the empirical analysis. I am grateful to Matthew Avery for helpful comments and to Christopher Kim, Brittany Ng, Oriana Tang, Nathan Brown, Joseph Clateman and Nicholas Massoni for research assistance. I am particularly indebted to Gideon Schor for leading the research team. 2022] 1

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