Take the Fifth: April 13, 2021 opinions

Designated for publication

  • Impax Laboratories, Inc. v. Federal Trade Commission, 19-60394, petition for review of order of the FTC
    • Costa, J. (Southwick, Costa, Duncan), antitrust law
    • Denying petition for review of FTC order that concluded a rule-of-reason analysis to determine that the respondent’s acceptance more than $100 million in reverse payment settlements to delay the introduction of its generic pharmaceuticals to the market constituted anticompetitive behavior that violated antitrust law. The Court held that the FTC did not commit any legal errors and that substantial evidence in the record supported its findings.
    • “A reverse payment settlement is a settlement of patent litigation in which the patentholder gives the alleged infringer cash or other valuable services or property and the alleged infringer agrees not to market its allegedly infringing product until some later date. These horizontal agreements unlawfully restrain trade, see 15 U.S.C. § 1, if they cause anticompetitive effects that outweigh any procompetitive
    • The Court held that the FTC correctly determined that the reverse payment settlement of $102 million here did not have any other justification other than delay of competition in the market, and therefore produced anticompetitive effects. The Court held that the FTC was not required to assess the strength of the patentholder’s patent infringement claims in order to determine anticompetitive effect, holding that the size of the payment itself gave an indication of the parties’ own assessment of the strength of the patent. The Court also rejected backwards-looking analysis of the efficacy of the payment, since the analysis must be made from the viewpoint of the time of the alleged anticompetitive behavior.
    • The Court then held that the FTC correctly held that the potentially procompetitive aspects of the settlement agreement (assuming arguendo a nexus between those positive aspects and the anticompetitive payment) could have been achieved through an alternative without involving the anticompetitive reverse payment. “The idea is that it is unreasonable to justify a restraint of trade based on a purported benefit to competition if that same benefit could be achieved with less damage to competition. Focusing on the existence of less restrictive alternatives may allow courts to avoid difficult balancing of anticompetitive and procompetitive effects and to ‘smoke out’ anticompetitive effects or pretextual justifications for the restraint.” The Court held that “[t]hree evidentiary legs—industry practice, credibility determinations about settlement negotiations, and economic analysis—… supported the Commission’s conclusion that Endo would have agreed to a less restrictive settlement.”


  • U.S. v. Robinson, 20-10729, appeal from N.D. Tex.
    • per curiam (Jolly, Elrod, Graves), criminal, First Step Act
    • Granting summary affirmance of district court’s denial of motion for sentence reduction under the First Step Act.
  • U.S. v. Reynolds, 20-11256, appeal from N.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, contempt of court, mootness
    • Dismissing appeal of detention order pending trial on criminal contempt charge, as moot after defendant pled guilty to criminal contempt and started serving sentence.
  • Lebron v. National Union Fire Insurance Co., 20-20165, appeal from S.D. Tex.
    • per curiam (Jones, Clement, Graves), insurance law
    • Affirming district court’s judgment upholding a denial of benefits under an accidental death insurance policy.
  • Harmony Haus Westlake, LLC v. Parkstone Property Owners Association, Inc., 20-50185, appeal from W.D. Tex.
    • per curiam (Barksdale, Southwick, Graves), Fair Housing Act
    • Affirming in part, vacating in part, reversing in part, and remanding district court’s rulings that enjoined homeowners association from enforcing a declaration against residential sober-living home with respect to the single-family-residential-use restriction; denied Harmony Haus’ claim for attorney’s fees and costs; denied Parkstone’s application for an injunction; ruled that the declaration’s restrictions regarding noise, nuisance, and parking remain in effect, and that Parkstone may enforce those restrictions, so long as such enforcement is applied in an evenhanded manner that treats handicapped and non-handicapped residents alike; and ruled that Parkstone’s counterclaims for breach of contract and violation of the Texas Property Code were waived because they were not raised at trial. The Court vacated the injunction, affirmed the denial of attorneys’ fees, and reversed the dismissal of the homeowners association’s counterclaim.
  • U.S. v. Nel, 20-50398, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, forfeiture
    • Affirming denial of motion for return of seized property.
  • Perkins v. Brewster, 20-50678, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), § 1983
    • Affirming dismissal of plaintiff’s suit that he is not governed by Texas law requiring him to have a driver’s license.
  • Ansari v. Garland, 20-60107, petition for review of BIA order
    • per curiam (Wiener, Southwick, Duncan), immigration
    • Denying in part and dismissing in part Indian citizen’s petition for review of BIA order denying his motion to reopen his removal proceedings, declining to sua sponte reopen, and dismissing his appeal from the immigration judge’s order denying a motion to reopen.