A Philadelphia federal appeals judge on sparred with lawyers for GlaxoSmithKline (GSK) and class plaintiffs over case details, but drilled down deepest where a lower court ruling which ended the case appeared to miss opportunities to address Actavis.

Two classes of plaintiffs accuse GSK and its partner Biovail of conspiring to delay the market entry of generic versions of Wellbutrin XL through a payment and a no-authorized-generic promise to Anchen Pharmaceuticals and its partner Teva Pharmaceutical Industries.

The direct purchaser plaintiffs' class in this case is comprised of drug wholesalers such as Professional Drug Company. Indirect purchaser plaintiffs are health care benefit providers such as Aetna Health of California and Plumbers and Pipefitters Local 572 Health and Welfare Fund.

When Stephen Kastenberg, a partner at Ballard Spahr which represents GSK, presented his client's argument, Jordan asked him to address the reverse payment issue. Jordan took issue with the trial judge's ruling that "no reasonable jury" could have found that GSK's conduct anticompetitive. "Isn't weighing the anticompetitive conduct and pro-competitive justifications a classic case of something determined by a finder of fact?" the judge asked

Jordan likewise accepted the reasoning of Kastenberg's co-counsel Leslie John, also a Ballard Spahr partner who argued for GSK, but mused rhetorically whether the district judge's opinion granting GSK summary judgment adequately had analyzed the Actavis factors.

GSK's partner Biovail paid USD 49.25m to settle the claims of direct purchasers (USD 37.5m in November 2012) and indirect purchaser plaintiffs (USD 11.75m in July 2013). On 23 September 2015, US District Judge Mary McLaughlin granted GSK summary judgment on all claims in the reverse payment litigation over the antidepressant Wellbutrin XL, giving rise to this appeal.