.
That decision was anything but a complete victory for the Commission s position. Indeed, Justice Breyer wrote a relatively nuanced opinion holding, most importantly, that such settlements were not a
per se antitrust violation (the FTC s original position). Rather, the Court held that such agreements must be evaluated under the rule of reason. However, reasonableness (
i.e., how tightly tethered to reality) of any such determination depends in larger part on the reasoner, and this characteristic (or flaw) is illustrated in the first full-fledged appellate affirmance of the FTC in a reverse payment settlement case,
The case arose over a settlement between branded drug maker Endo against Impax over its extended-release oxymorphone opioid drug product, Opana ER. The agreement, entered into before the Supreme Court s