Announced Actions for June 2, 2004

Commission authorization of joint amicus brief filing: The Commission has authorized the filing of a joint amicus brief with the U.S. Department of Justice (DOJ) in 3M Company v. LePage’s Inc., No. 02-18625, a case before the U.S. Supreme Court. The case concerns a jury verdict from the Third Circuit Court of Appeals regarding 3M’s use of a “bundled rebate” program. Specifically, LePage’s initially sued 3M alleging that 3M’s use of a “bundled rebate” program in the marketing and sale of transparent tape constituted exclusive dealing under Section 1 of the Sherman Act and Section 3 of the Clayton Act and monopoly maintenance and attempted monopolization under Section 2 of the Sherman Act. The jury found for 3M on the exclusive dealing counts, but for plaintiff LePage’s on the Section 2 counts. The district court dismissed the Section 2 attempt count, but entered a judgment on the monopoly maintenance count. On appeal, a divided panel of the Third Circuit initially reversed; however, the court subsequently took the case en banc and affirmed the district court. 3M then filed a petition for certiorari.

In their joint brief, submitted at the request of the court, the FTC and DOJ recommended that the Court deny the petition. According to the brief’s conclusions, as explained in detail in its text, “The United States submits that, at this juncture, it would be preferable to allow the case law and economic analysis to develop further and await a case with a record better adapted to development of an appropriate standard.” The Commission vote authorizing the amicus brief, which can be found as a link to this press release on the FTC’s Web site, was 4-0-1, with Chairman Timothy J. Muris recused. (FTC File No. P042115; the staff contact is Melvin H. Orlans, Office of General Counsel, 202-326-2475.)

Commission approval of final consent order: Following a public comment period, the Commission has approved a final consent order in the matter concerning MTS, Inc., d/b/a Tower Records/Books/Video and Tower Direct, LLC, d/b/a TowerRecords.com. The Commission vote to approve the final order, which is available on the FTC’s Web site as a link to this press release, was 5-0. (FTC File No. 032-3209; the staff contact is Laura Mazzarella, Bureau of Consumer Protection, 202-326-3224; see press release dated April 21, 2004.)

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, DC 20580. Call toll-free: 1-877-FTC-HELP.