FTC Files Joint Amicus Brief with DOJ in Matter of Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co.; Commission Approves J&J Petition to Reopen and Set Aside Guidant Order; FTC Staff Files Comments with Texas State Bar on Attorney Online Matching

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Commission approval of joint amicus brief filing: The Commission has authorized the staff to file a joint amicus brief with the U.S. Department of Justice (DOJ) in the case of Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., No. 05-381 (S. Ct.). The brief, which was filed on May 26, 2006, urges the Court to grant certiorari in this case, in which the Ninth Circuit Court of Appeals: 1) held that the standard for a predatory pricing claim articulated by the Supreme Court in Brooke Group Ltd v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), did not apply to a case in which the plaintiff alleged “predatory bidding” in violation of Section 2 of the Sherman Act, and 2) approved instructions that allowed a jury to find a violation based on assessments of factors such as “fairness” and “necessity.”

The Commission vote authorizing the staff to file the brief jointly with the DOJ was 3-2, with Commissioners Jon Leibowitz and J. Thomas Rosch voting no. A copy of the brief can be found on the FTC’s Web site as a link to this press release. (FTC File No. P062112; the staff contact is John F. Daly, Office of the General Counsel, 202-326-2244.)

Commission approval of petition to reopen and set aside decision and order: The Commission has granted a petition filed by Johnson & Johnson (J&J) Corporation, requesting that the FTC reopen and set aside the entire decision and order concerning J&J’s proposed acquisition of Guidant Corporation (Guidant). In its petition, J&J cited as a material change in fact and circumstances that renders the provisions of the order unnecessary that J&J has terminated all agreements with Guidant regarding the proposed transaction. Guidant subsequently was acquired by Boston Scientific Corporation. (The Boston Scientific acquisition resulted in a separate decision and order; see press release dated April 20, 2006.) The Commission vote to reopen and set aside the order and to eliminate the public comment period was 3-0, with Commissioners Pamela Jones Harbour and William Kovacic recused. (FTC File No. 051-0050; the staff contact is Daniel P. Ducore, Bureau of Competition, 202-326-2526; see press releases dated November 2, 2005, and April 28, 2006).

Commission authorization of staff comments to the State Bar of Texas: The Commission has authorized the staffs of the Office of Policy Planning, Bureau of Competition, and Bureau of Economics to file a comment with the Professional Ethics Committee of the State Bar of Texas concerning online attorney matching services, which are designed to help consumers find attorneys who are able to handle their legal needs. The Committee is currently considering whether Ethical Rule 7.03, which prohibits Texas lawyers from paying a non-lawyer to solicit prospective clients or to refer clients – except for paying reasonable fees for advertising – also prohibits attorneys from participating in online legal matching services.

The FTC staff comments, submitted to the Committee on May 28, 2006, state that online legal matching services have the potential to lower consumers’ costs related to acquiring information about the price and quality of legal services, which is likely to lead to more intense competition among attorneys and will ultimately benefit consumers. At the same time, the staff sees “no indication that consumers are likely to suffer harm” from online legal matching services that would justify banning them. Accordingly, the comments urge the Committee to consider the likely impacts on Texas consumers of reduced competition before barring attorneys from participating in such online matching programs.

The Commission vote authorizing the staff to file the comments was 5-0. Copies are available now on the FTC’s Web site as a link to this press release. (FTC File No. V060017; the staff contact is James Cooper, Office of Policy Planning, 202-326-3367.)

Copiesof 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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