Amicus Briefs

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.

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.

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.

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.

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.

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.

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.

Brief of the Consumer Financial Protection Bureau and Federal Trade Commission before the U.S. Court of Appeals for the Ninth Circuit addressing the proper application of Section 809 of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692g, regarding validation notices from debt collectors to consumers.  The brief supports the plaintiff’s appeal from the district court’s denial of her motion for summary judgment and granting of summary judgment to defendants.  The brief takes the position that the district court erroneously interpreted the FDCPA to find that only “the initial communications” from the an initial debt collector need provide the information required by § 1692(g), and that communications from subsequent debt collectors were not required to comply with the statute.

Brief of the Federal Trade Commission before the U.S. District Court for the District of New Jersey addressing the proper application of antitrust principles to a pharmaceutical company’s refusal to sell samples to potential generic competitors. The brief opposes the defendant’s motion to dismiss the case. The brief takes the position that (a) a brand pharmaceutical company’s refusal to sell samples to a generic company can constitute exclusionary conduct under established Supreme Court precedent; (b) a brand company’s distribution agreements are not immune from antitrust scrutiny, and (c) a brand company’s patents alone do not establish a lack of antitrust injury.