Equipoise displacement

Offsetting transactions are common in options and futures markets . For example, let's say John Doe sells an option to buy 100 shares of Company XYZ with a strike price of $20 per share. The option expires in one year . Because John is locked into the contract, he cannot just ignore it. So, he enters into an offsetting transaction by buying an identical opposite transaction (buying an option to sell 100 shares of Company XYZ with a strike price of $20 that expires in one year). This offsets the risk he bears with the first option.

Given the Actavis decision, there seems to be some tension between the District Court’s decision in Ixchel and the rationale animating the result in Brunswick .  Brunswick imposed an antitrust injury requirement to prevent competitors from using the antitrust laws to reduce competition.  In contrast, Ixchel alleges that the agreement between Biogen and Forward prevented an increase in the number of competitors that otherwise would have resulted.  Taking Ixchel’s allegations at face value, they sought to remedy an agreement between two competitors to reduce the number of competing drugs in the market.  An agreement between competitors to eliminate one competing product seems to be the exact type of harm that the antitrust laws are intended to prevent.  On the other hand, a motivating concern behind Actavis was the bottleneck created under the Hatch-Waxman Act when the ‘first-filer’ generic settles with the branded company and thereby keeps all other generics from being approved.  This market effect did not appear to be at issue in Ixchel (or Ethypharm ). 

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Equipoise displacement

equipoise displacement

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