Amicus Briefs

When a court considers a case whose outcome may affect consumers or competition, the FTC may file a “friend of the court” brief to provide information that can help the court make its decision in a way that protects consumers or promotes competition. To find a specific FTC brief, use the filters on this page.

Displaying 1 - 20 of 137

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Takeda Pharmaceutical Company Limited, et al. v. Zydus Pharmaceuticals (USA) Inc., et al.

Citation Number: 18-1994 (FLW) (TJB)
Federal Court: District of New Jersey
Date:

Brief of the Federal Trade Commission urging the District of New Jersey to reject argument that Hatch-Waxman patent infringement suits are categorically exempt from antitrust scrutiny as potential sham litigation, because the argument is contrary to the statutory text and case law.

Intellectual Ventures I LLC et al. v. Capital One Financial Corp. et al.

Citation Number: 18-1367
Federal Court: U.S. Circuit Court of Appeals for the Federal Circuit
Date:

This amicus brief, filed jointly with the Department of Justice, addresses the scope of the Noerr-Pennington doctrine and argues that the doctrine does not exempt from antitrust scrutiny the unlawful acquisition of patents, even if the patents are later enforced through protected petitioning activity.

Apple Inc. v. Robert Pepper, et al.

Citation Number: 17-204
Federal Court: Supreme Court of the United States
Date:

Brief of the United States (Department of Justice and the Federal Trade Commission), to reverse the court of appeals decision. This amicus brief argues that the appellate court misapplied the rule established in Illinois Brick Co. v. Illinois, 431 U.S 720 (1977), that indirect purchasers lack standing to sue for antitrust violations under federal law, whereas direct purchasers from a monopolist may sue for anticompetitive overcharges even if those overcharges are passed on to downstream purchasers. iPhone owners sued Apple for charging an anticompetitive commission on apps, which plaintiffs argued resulted in higher app prices. The appellate court held that the plaintiffs were direct purchasers because Apple delivered the apps to them even though the commissions were first imposed on app developers who determined how much of the overcharge to pass on to consumers. The appellate court decision therefore misapplied the indirect purchaser rule and created a direct conflict with the decision of another court of appeals analyzing an analogous transaction.

Salt River Project Agricultural Improvement & Power District v. Tesla Energy Operations, Inc., FKA Solarcity Corporation

Citation Number: 17-368
Federal Court: Supreme Court of the United States
Date:

Brief of the United States (Department of Justice and the Federal Trade Commission), in support of the court of appeals decision. This amicus brief argues that a district court decision denying a motion to dismiss on state action grounds is not immediately appealable under the collateral order doctrine. The state-action doctrine constitutes an important limit on the coverage of federal antitrust law, but it does not provide a public-entity defendant with immunity from suit. A defendant’s claim that the district court misapplied the doctrine therefore can be effectively vindicated on appeal from a final judgment.

Chamber of Commerce of the United States of America and Rasier, LLC, v. City of Seattle, et al.

Citation Number: 17-35640
Federal Court: U.S. Circuit Court of Appeals for the Ninth Circuit
Date:

Brief of the United States Department of Justice and the Federal Trade Commission, urging the Ninth Circuit to reject application of the state action doctrine to this case because the "clear articulation" requirement is not satisfied.

Amphastar Pharmaceuticals, Inc., et al. v. Momenta Pharmaceuticals, Inc., et al.

Citation Number: 16-2113
Federal Court: U.S. Circuit Court of Appeals for the First Circuit
Date:

Brief of the Federal Trade Commission as amicus curiae, taking no position on the merits of the case, but explaining that the district court erroneously dismissed the complaint on Noerr-Pennington antitrust exemption grounds.

In the Supreme Court of the United States: Visa Inc., et al., Petitioners v. Sam Osborn, et al., and Visa Inc., et al., Petitioners v. Mary Stoumbos, et al., On Writ of Certiorari To the United States Court of Appeals For the District of Columbia Circuit

Citation Number: 15-961 and 15-962
Federal Court: Supreme Court of the United States
Date:

Brief For the United States (Department of Justice and Federal Trade Commission) As Amicus Curiae Supporting Respondents, Arguing That Respondents' United States District Court Complaints Adequately Allege That the Access Fee Rules Imposed by Visa and MasterCard - Governing the Fees That Competing Banks Charge In Their Separate Businesses -- Constitute Concerted Action Subject to Section 1 of the Sherman Act

Mylan Pharmaceuticals Inc. v. Warner Chilcott PLC

Citation Number: 15-2236
Federal Court: U.S. Circuit Court of Appeals for the Third Circuit
Date:

Brief of the Federal Trade Commission in support of a petition for rehearing and rehearing en banc and urging the court to clarify or amend its September 28, 2016, decision in the case. The brief urges the court to (1) clarify the decision so it cannot be read to limit the kinds of evidence used to analyze monopoly power and (2) correct the decision’s improper focus on the effect of allegedly anticompetitive product hopping on a competitor rather than the conduct’s overall effect on competition.

Teladoc, Incorporated, et al. v. Texas Medical Board et al.

Citation Number: 16-50017
Federal Court: U.S. Circuit Court of Appeals for the Fifth Circuit
Date:

Brief of the United States Department of Justice and the Federal Trade Commission as amici curiae, urging the Fifth Circuit to dismiss the appeal for lack of jurisdiction or, if the Court finds jurisdiction, to reject application of the state action doctrine to this case because the “active supervision” requirement of the doctrine is not satisfied.

Anthony Rivera v. JPMorgan Chase Bank, N.A.

Citation Number: 16-7008
Federal Court: U.S. Circuit Court of Appeals for the D.C. Circuit
Date:

Brief of the Federal Trade Commission and the Consumer Financial Protection Bureau in support of plaintiff-appellant. The brief argues that the district court erroneously concluded that the plaintiff’s Fair Credit Reporting Act (FCRA) claim under 15  U.S.C. § 1681s-2(b) was barred by FCRA’s statute of limitations.  The brief urges the court to reverse the district court’s decision.

In re Effexor XR Antitrust Litigation

Citation Number: 15-1184, 15-1185, 15-1186, 15-1187, 15-1274, 15-1323, 15-1342
Federal Court: U.S. Circuit Court of Appeals for the Third Circuit
Date:

Supplemental Brief of Amicus Curiae Federal Trade Commission Supporting Plaintiffs-Appellants, and Motion For Leave To File Supplemental Brief, Filed to urge the Court of Appeals to reject defendants’ argument, not addressed by the District Court below, that their settlement agreement is exempt from antitrust scrutiny under the Noerr-Pennington doctrine.  Settlements among private litigants, including patent settlements, are considered commercial activity subject to antitrust scrutiny, not petitioning activity protected by the Noerr doctrine.  Applying Noerr to settlements or consent decrees could effectively enable parties to shield anticompetitive behavior.

In re Wellbutrin Antitrust Litigation

Citation Number: 15-3559, 15-3591, 15-3681, 15-3682
Federal Court: U.S. Circuit Court of Appeals for the Third Circuit
Date:

Brief of the Federal Trade Commission arguing that the district court committed multiple legal errors that should be corrected on appeal. The district court erroneously concluded that a reverse-payment settlement that allowed the underlying patent litigation to continue, while the brand-name drugmaker paid the generic drugmaker not to enter at risk during the pendency of the litigation, was not subject to the rule-of-reason analysis prescribed by the Supreme Court in FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013). The district court erroneously required plaintiffs to show actual delayed entry or injury to a specific party to establish an antitrust violation. The district court failed to require defendants to prove that the reverse payment promoted the claimed procompetitive benefits of settlement. Finally, the district court erred when it found the reverse15-3559, 15-3591, 15-3681, 15-3682-payment settlement agreement lawful partly on grounds that the parties included a provision that would allow them to abandon the deal if the FTC objected.

In re Nexium (Esomeprazole) Antitrust Litigation

Citation Number: 15-2005, 15-2006, 15-2007
Federal Court: U.S. Circuit Court of Appeals for the First Circuit
Date:

Brief of the Federal Trade Commission arguing that the district court committed legal error by conflating two distinct analyses under antitrust law:  the existence of an antitrust violation, which requires a general showing of harm to the competitive process, and the question of antitrust standing, which requires a specific showing by a private party that, among other things, it suffered an injury-in-fact caused by the violation. The brief also shows that a reverse payment from a brand-name drugmaker used to settle patent litigation can violate the antitrust laws if it induces a generic drugmaker to abandon its patent challenge and stay out of the market regardless of whether the generic would actually have otherwise entered the market sooner than permitted by the settlement agreement.

Franklin et al v. Parking Revenue Recovery Services, Inc.

Federal Court: U.S. Circuit Court of Appeals for the Seventh Circuit
Date:

Brief of the Federal Trade Commission and the Consumer Financial Protection Bureau stating that the district court erred in dismissing a class action complaint alleging that a collection bureau hired by a private parking lot operator to collect unpaid parking fees violated the Fair Debt Collection Practices Act (FDCPA), as parking fees and any additional fees incurred due to nonpayment consistute "debts" under the FDCPA.

In re Effexor XR Antitrust Litigation

Citation Number: 15-1184, 15-1185, 15-1186, 15-1187, 15-1274, 15-1323, 15-1342
Federal Court: U.S. Circuit Court of Appeals for the Third Circuit
Date:

Brief of the Federal Trade Commission urging the Third Circuit to reject the district court’s holding that an alleged reverse-payment settlement agreement between a brand-name drug company and a generic drug company was shielded from antitrust scrutiny because they submitted it in advance to the FTC and the FTC declined to file an objection with the court hearing the patent case.

Woodman’s Food Market, Inc., Plaintiff-Appellee v. The Clorox Co. and The Clorox Sales Co., Defendants-Appellants

Citation Number: 15-3001
Federal Court: U.S. Circuit Court of Appeals for the Seventh Circuit
Date:

Brief of the Federal Trade Commission urging the Seventh Circuit to reverse the district court’s holding that the mere sale of large-sized packages to one merchant but not another could violate Section 2(e) of the Robinson-Patman Act. Section 2(e) forbids sellers from providing discriminatory promotional services to competing buyers for resale. Two FTC administrative decisions from 1940 and 1956 held that Section 2(e) requires a seller to provide its products in packages of the same size and style to all competing buyers who demand them. The FTC’s position is that these administrative decisions are not good law, because they are out-of-step with more recent cases adopting a narrower interpretation of the Robinson-Patman Act and holding that the Act should be interpreted consistently with other antitrust laws.

Mylan Pharmaceuticals, Inc. v. Warner Chilcott plc, et al.

Citation Number: 15-2236
Federal Court: U.S. Circuit Court of Appeals for the Third Circuit
Date:

Brief of the Federal Trade Commission urging the Third Circuit to reverse the district court’s summary judgment ruling, which held (1) that a brand-name drug manufacturer lacked monopoly power and (2) that product hopping almost never constitutes exclusionary conduct in any event. The district court’s analysis of the threshold monopoly-power question foundered on a basic misunderstanding of the special characteristics of the pharmaceutical marketplace. In addition, product hopping can be exclusionary if, without countervailing procompetitive justifications, a monopolist raises rivals’ costs by depriving them of their most efficient distribution mechanisms and thus harms consumers by impeding the rivals’ competitive ability to discipline monopoly prices.

Keith Davidson v. Capital One Bank (USA), N.A.

Citation Number: 14-14200
Federal Court: U.S. Circuit Court of Appeals for the Eleventh Circuit
Date:

Brief of the Federal Trade Commission before the Eleventh Circuit seeking rehearing en banc of a panel ruling that an entity who acquires and collects on defaulted debts does not qualify as a “debt collector” under the Fair Debt Collection Practices Act (FDCPA) and, accordingly, is immune from the Act’s requirements. The Commission argues this interpretation perverts the purpose of the FDCPA and thwarts the ability of law enforcement to protect consumers from abuse.

Daniel Bock, Jr., Plaintiff-Appellee, v. Pressler & Pressler, LLP, Defendant-Appellant

Citation Number: 15-1056
Federal Court: U.S. Circuit Court of Appeals for the Third Circuit
Date:

Brief of the Consumer Financial Protection Bureau and the Federal Trade Commission in support of Appellee. This case involves the application of a provision of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692(e), to debt-collection law firms that mass-file collection lawsuits without any meaningful attorney review.

American Sales Co., et al., Plaintiffs-Appellants, v. Warner-Chilcott Co., LLC, et al., Defendants-Appellees

Citation Number: 14-2071 and 15-1250 (Consolidated)
Federal Court: U.S. Circuit Court of Appeals for the First Circuit
Date:

Brief of the Federal Trade Commission As Amicus Curiae In Support of Plaintiffs-Appellants before the U.S. Court of Appeals for the First Circuit addressing the applicability of the rule of reason under the antitrust laws to patent litigation settlements.  The brief points out that in FTC v. Actavis, 133 S.Ct. 2223 (2013), the Supreme Court reaffirmed that traditional antitrust principles apply to patent litigation settlements -- and that patent law confers no broad immunity on parties to such settlements -- and held that a brand-name drug manufacturer’s payment to a generic competitor can violate the antitrust laws under the rule of reason.  The brief states that that holding does not depend on the specific form of the compensation which the brand company pays the generic to stay out of the market.

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