Amicus Briefs

Brief of the United States Department of Justice and the Federal Trade Commission supporting the appellant and urging a reversal. The brief argues that the term “applicant” as used in the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691(a)(1), is best read to refer to existing holders of credit as well as persons who have sought but not yet been granted credit. The brief advocates a reversal of the district court’s ruling that the plaintiff, an existing credit holder, was not an “applicant” protected by the statute.

Brief of the United States Department of Justice and the Federal Trade Commission supporting the district court’s ruling to dismiss plaintiff’s antitrust complaint on state-action grounds. Brief states that, if the Court addresses the active supervision component of the Georgia Board of Dentistry members’ state-action defense, the Court should affirm the district court’s holding that the Board members did not meet their burden to show active state supervision of its challenged regulation.

The Department of Justice, joined by the Commission, advocated to the Rhode Island Supreme Court that the business of real estate closings should not be deemed the practice of law, and thus able to be performed exclusively by lawyers, but should be open to all qualified providers. We had taken that same position in 2003, when we advocated to the Rhode Island legislature that it should not enact a law restricting the provision of closing services.

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.

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.

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.

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.