Announced Actions for January 9, 2002

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The FTC has approved the issuance of two briefs, both of which are available on the Commission's Web site. The briefs were filed with respect to litigation involving: 1) Bristol-Myers-Squibb and Buspirone; and 2) The Hearst Trust and First Data Bank. A basic description of each brief is provided below.

Bristol-Myers-Squibb (BMS) and Buspirone: On January 8, 2002, the Commission filed an amicus brief in U.S. District Court for the Southern District of New York regarding the pending Buspirone antitrust and patent litigation, and opposing BMS's motion to dismiss the case on the grounds of Noerr-Pennington antitrust immunity. In re Buspirone concerns whether BMS violated Section 2 of the Sherman Act by making false filings with the U.S. Food and Drug Administration that caused BMS's newly issued patent to be wrongfully listed in the FDA's Orange Book in order to block generic competition to its branded drug, BuSpar. The Commission filed its brief based on its continuing interest in ensuring that competition between the manufacturers of generic and branded pharmaceuticals is not impeded by potentially anticompetitive acts or practices.

The Hearst Trust (Hearst) and First Data Bank: On January 2, 2002, the Commission submitted a brief as intervenor in U.S. District Court for District of Columbia opposing the class plaintiffs' petition for award of counsel fees and the reimbursement of expenses. The litigation follows the Commission's recent settlement with Hearst in which the company agreed to disgorge $19 million and divest its Medi-Span business to Facts & Comparisons to settle alleged violations of the Hart-Scott-Rodino Premerger Notification Act and of Section 7 of the Clayton Act. In its brief, the FTC stated that the class counsel's fee should be substantially reduced from its request of over $5 million, in large part because the private litigation had "piggy-backed" on the prior FTC investigation and because the class counsel had participated in securing no more than $8 million of the total $24 million common fund at issue (rendering their request for over $5 million in effect a request for fees of over 60 percent, despite having completed only limited work on the case). The remainder of the fund, the FTC argued, should be available for consumers.

The Commission vote was 5-0 to issue each brief and place a copy on the public record. (BMS-Buspar: FTC File No. 011-0046; Docket No. 1410 (S.D.N.Y); Hearst: FTC File No.: 991-0323, Master File No. 1:01CV00879 (TJP)).

Publication of Federal Register notice:

The Commission has approved publication of a Federal Register notice regarding the Trade Regulation Rule on Power Output Claims for Amplifiers Used at Home (Amplifier Rule). On December 22, 2000, the FTC requested public comments on a supplemental notice of proposed rulemaking to amend the Amplifier Rule to clarify testing procedures for multichannel amplifiers such as those used in home theater systems. In response, the Commission received a comment from an industry trade association requesting that the Commission defer action on the proposed rule until this trade association had formulated a voluntary standard for testing multichannel amplifiers. As detailed in the Federal Register notice, which will be published shortly, the Commission has decided to defer action on the proposed rule, but will keep open the rulemaking record in this proceeding. The Commission vote to publish the Federal Register notice and place a copy on the public record was 5-0. (FTC File No. P974222; staff contact is Dennis R. Murphy, 202-326-3524)

Copies of the documents mentioned in this release are available from the FTC's Web site at http://www.ftc.gov and also from the FTC's Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Call toll-free: 1-877-FTC-HELP.

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