Commission Approves Amicus Brief Filing in Matter of Arkansas Carpenters Health and Welfare Fund v. Bayer AG; FTC Authorizes Filing of Joint FTC/DOJ Letter with Hawaii Supreme Court Regarding Proposed Rules Regarding the Practice of Law

For Your Information

Commission approval of amicus brief filing: The FTC’s Office of General Counsel has filed an amicus brief with the U.S. Court of Appeals for the Federal Circuit in the matter of In re Ciprofloxacin Hydrochloride Antitrust Litig., sub nom. Arkansas Carpenters Health and Welfare Fund v. Bayer AG, No 08-1097 (Fed. Cir.). In the brief, which can be found on the Commission’s Web site as a link to this press release, the FTC urges the Court of Appeals to reverse the District Court’s decision and hold that patent laws do not immunize patent settlements between pharmaceutical firms from antitrust scrutiny. The Commission filed the brief based on “the importance of the issues presented to its mandated mission and the serious risk to consumer welfare posed by anticompetitive settlement agreements” between drug companies.

The Commission vote approving the filing of the amicus brief was 5-0. It was filed with the U.S. Court of Appeals for the Federal Circuit on January 25, 2008. (FTC File No. P082105; the staff contact is Imad Dean Abyad, Office of General Counsel, 202-326-2375.)

Commission approval of joint FTC/DOJ letter: The Commission, in consultation with the staff of the Department of Justice’s Antitrust Division, has submitted a joint letter to the Supreme Court of Hawaii regarding a proposed rule defining the practice of law in the state. The rule being considered by the Court would define the practice of law to include: 1) giving advice or counsel to another person about the person’s legal rights and obligations; 2) performing legal research; 3) selecting, drafting, or completing documents that affect the rights of another person; and 4) negotiating legal rights or obligations . . . on behalf of another person.

According to the joint agency letter, the broad, general definition in the proposal likely would force Hawaiians who would not otherwise hire a lawyer to do so by eliminating the resources consumers can rely upon to obtain legal information and prevent, among other activities: 1) tenants’ associations from informing renters about landlords’ and tenants’ legal rights and responsibilities; 2) lay organizations, advocates, and consumer associations from providing citizens with information about their legal rights and way to negotiate solutions to problems; and 3) human resource management and other specialists from advising employers about discrimination, harassment, and other issues. To preserve competition and to benefit consumers, the agencies suggest that the Court adopt language similar to that found in Rule 49 of the District of Columbia Court of Appeals. Rule 49 defines the practice of law as “the provision of professional legal advice or services where there is a client relationship of trust or reliance,” and explains that giving advice or counsel to others as to legal rights or responsibilities is not necessarily the practice of law, but may be the practice of law when provided in the context of an attorney-client relationship.

The Commission vote approving issuance of the joint letter was 5-0. The letter was transmitted to the Supreme Court of Hawaii on January 25, 2008. Copies of the letter can be found on the FTC’s Web site and as a link to this press release. (FTC File No. V080004; the staff contact is Gustav P. Chiarello, Office of Policy Planning, 202-326-2633.)

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

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