Bartek Sudol

New York v. Actavis: Innovation by Persuasion in a Noncoercive Consumer Economy

The New York v. Actavis decision created the coercion test as an intermediate step toward characterizing product-hopping as an antitrust offense. This Note argues that, through the introduction of the coercion test, Actavis deemphasized the importance of consumer benefits flowing from innovation—whether trivial or substantial—in the demand-side antitrust analysis. Further, the coercion test, defined in generic terms, may potentially dampen innovation in the technology sector. Indeed, an overbroad reading of a loosely-defined doctrine may allow a court to interpret a rapid succession of generations of consumer electronics and related operating software as coercive and therefore anticompetitive. To avoid this pernicious effect, the Second Circuit should clarify the doctrinal bounds of the coercion test.