Amicus brief before the United States Court of Appeals for the Third Circuit, supporting plaintiffs/appellants and urging reversal of a decision by the United States District Court for the District of New Jersey. That decision dismissed federal antitrust claims brought by direct and indirect purchasers of the drug K-Dur, a blood pressure medication. Plaintiffs alleged that, when K-Durs manufacturer, Schering Plough Corp., settled patent infringement litigation that it had brought against two generic drug companies, the settlement agreements, which restricted the generic companies from marketing their generic versions of K-Dur and provided for payments from Schering to the generic companies, violated the antitrust laws. The district court granted the drug companies motions for summary judgment on the grounds that the patent at issue trumped any application of the antitrust laws. In particular, the court held that there was no antitrust violation because the agreements settling the infringement litigation applied only to the generic versions of K-Dur, and did not restrict the marketing of those generics beyond the expiration date of Scherings patent. In its amicus brief, the Commission argues that the district courts decision is inconsistent with the antitrust laws and the Hatch-Waxman Act. The Commission further argues that such exclusion-payment settlements should be treated as presumptively unlawful.
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 61 - 80 of 143
Brief of the Federal Trade Commission as amicus curiae, before the en banc United States Court of Appeals for the Federal Circuit, in a case concerning the standards applicable when a patentee moves for contempt of a previously-entered injunction against acts of infringement. A divided Federal Circuit panel held that a district court had properly evaluated Echostar’s post-judgment conduct in contempt proceedings, and that it infringed TiVo’s patents despite its design-around efforts. The FTC’s brief supports neither of the parties, but urges the Federal Circuit, when crafting the standards for triggering contempt rather than requiring a new infringement trial, to consider how making summary contempt proceedings and contempt sanctions too easily available could dampen incentives for follow-on innovation, while at the same time, enforceable injunctions can also be an important prerequisite to innovation and entry.
An amicus brief in support of plaintiffs-appellants’ petition for rehearing en banc. The case concerns a court of appeals panel decision upholding the dismissal of an antitrust challenge to a Hatch-Waxman patent settlement. Because of the “exceptional importance” of the issues involved, however, the panel also invited appellants to file a petition for rehearing en banc, in order for the full court to reconsider a circuit precedent that bound the panel’s decision. The Commission argues that the earlier circuit decision, In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187 (2d Cir. 2005), was based on mistaken assumptions about the pharmaceutical industry, which has contributed to a proliferation of exclusion-payment settlements such as the one at issue in the current case, and that the Tamoxifen panel decision did not properly consider the Hatch-Waxman Act, which encourages challenges to pharmaceutical patents to facilitate the early entry of generic drugs. The Commission urges the court of appeals to rehear the current case en banc, in order to correct that earlier circuit precedent.
Amicus brief filed in the United States Court of Appeals, Second Circuit, at the invitation of the Court concerning issues presented by an appeal in an ethylene oxide supply contract dispute between INEOS Americas LLC and The Dow Chemical Company. The brief discusses important public interests in promoting competition and consumer welfare that the Commission sought to advance in the merger proceedings stemming from The Dow Chemical Companys 2001 acquisition of Union Carbide Company. Dows divestiture of its ethanolamines business to INEOS was part of the merger remedy required by the Commission in that case, and ethylene oxide is a key feedstock for that business. While taking no position on the ultimate disposition of the contract law issues before the Court, including that of specific performance, the Commission addresses the merger enforcement context in which the supply contract under dispute arose. The Commission states that, to the extent the Court deems public interest considerations pertinent to the issues before it, those interests would be served by a contract remedy that will ensure that INEOS has access to supplies of ethylene oxide that will promote its ability to remain an active and dynamic competitor.
Joint brief of the United States and the Federal Trade Commission as amicus curiae supporting petitioner, and urging reversal of a decision of the United States Court of Appeals for the Sixth Circuit. That court held that the bona fide error defense of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692k(c), could apply not just to clerical or mathematical errors, but also to errors of law. The brief argues that errors of law do not satisfy the FDCPA’s requirements for a “bona fide error” because such errors are never “not intentional,” and because a debt collector cannot maintain procedures reasonably adapted to avoid errors of law. The brief also argues that the provision was based on an identical provision in the Truth in Lending Act, which excludes errors of law.
Joint brief of the United States and the Federal Trade Commission as amicus curiae in a case concerning whether the National Football League and its member teams collective actions can be exempt from antitrust review under Section 1 of the Sherman Act, which prohibits unreasonable restraints of trade. The brief urges the Supreme Court to vacate the judgment of the U.S. Court of Appeals for the Seventh Circuit, which had upheld a district courts summary judgment in favor of the NFL and its separately owned teams on the grounds that they function as a single entity when licensing and marketing their logos and trademarks under an exclusive licensing agreement with Reebok International Ltd. The brief states that the conduct of joint ventures, such as the NFL, is generally concerted action under Section 1. In discussing whether a sports league and its member teams should be deemed to function as a single entity for purposes of Section 1s concerted action requirement, the brief demonstrates that such treatment is only appropriate if two conditions are satisfied. First, the teams and the league must have effectively and legitimately merged the relevant aspect of their operations, thereby eliminating actual and potential competition among the teams and between the teams and the league in that operational sphere; and second, the challenged restraint must not significantly affect actual or potential competition among the teams or between the teams and the league outside their merged operations. In addition to asking the Supreme Court to vacate the judgment, the brief asks that the case be remanded for further proceedings and application of the correct legal standard for single-entity analysis.
Amicus brief before the United States Court of Appeals for the Federal Circuit, in support of appellants and urging reversal of a decision by the United States District Court for the Eastern District of New York dismissing plaintiffs-appellants' federal antitrust claims on the ground that defendants' challenged patent settlement agreement was immunized by the patent laws. The case, filed by direct and indirect purchasers of the wide-spectrum antibiotic drug ciprofloxacin hydrochloride (“Cipro”), involves agreements between defendants Bayer AG and its U.S. subsidiary Bayer Corporation – manufacturer of Cipro and assignee of U.S. Patent No. 4,670,444 which claims the active ingredient in Cipro – and generic manufacturers Barr Laboratories, Inc., The Rugby Group, Inc., Hoechst Marion Roussel, Inc., and Watson Pharmaceuticals, Inc. Under the terms of those agreements (executed in January 1997), Bayer paid the generic companies approximately $398 million in exchange for their agreements not to manufacture any form of Cipro and for Barr’s agreement to terminate its challenge to Bayer's patent by converting its Abbreviated New Drug Application for a generic form of Cipro to permit Barr to market its generic drug only upon expiration of the ‘444 patent in December 2003. In its amicus brief, the Commission argues that the district court's ruling is not compelled by the patent laws, and it conflicts with fundamental antitrust principles.
Joint brief of the United States and the Federal Trade Commission, as amicus curiae, urging the Supreme Court to reverse a court of appeals ruling that declared unlawful per se a minimum resale price maintenance (RPM) agreement between defendant manufacturer and its plaintiff-retailer, in reliance on Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). In the brief, the agencies argue that the rule of Dr. Miles -- the only remaining per se prohibition against vertical restraints -- should be overturned in light of the Supreme Court's modern antitrust jurisprudence, which employs the rule of reason as the primary analytical framework in Section 1 cases, and the current economic teaching, which recognizes the potentially mixed competitive effects of RPM agreements.