Amicus Briefs

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.

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.

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.

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

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.

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.

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.

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.

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.