Oyez Oyez! The Antitrust Division Expands Its Appellate and Amicus Program

Division Update Spring 2018

The Appellate Section has been very active in recent months, briefing the United States v. American Express Co. case in the Supreme Court, as well as a number of important criminal and civil appeals. The Supreme Court has also sought the views of the United States in multiple antitrust cases at the certiorari stage.

For example, the Supreme Court granted certiorari in the vitamin C case—Animal Science Products v. Hebei Welcome Pharmaceutical Co.—to review the Second Circuit’s dismissal of price fixing complaints on the theory that it was “bound to defer” on international comity grounds to the Chinese government’s statement that the defendants’ actions were required by law. The United States successfully urged the Court to grant certiorari to review the Second Circuit’s ruling, and submitted an amicus brief in support of petitioners on the merits.

In response to another call for the views of the Solicitor General, the Division, in conjunction with the Solicitor General, is also reviewing the Apple v. Pepper case regarding the indirect purchaser rule set forth in the Supreme Court's Hanover Shoe and Illinois Brick decisions. And in Salt River Project v. Tesla Energy Operations, the United States submitted an amicus brief arguing that the denial of a state action defense at the pleading stage is not subject to immediate appeal under the collateral order doctrine.

In addition, the Division has embarked on an effort to expand its amicus program and significantly increase its participation in antitrust cases before they reach the Supreme Court. The goal of this effort is to help shape the development and application of antitrust law in the earliest stages of private litigation. The goal of this effort is to help shape the development and application of antitrust law in the earliest stages of private litigation. Two cases involved applications of state action immunity.

First, this past fall, the Division jointly filed an amicus brief with the FTC in Chamber of Commerce v. City of Seattle (9th Cir.), urging the court of appeals to reverse a finding that a Seattle ordinance permitting independent drivers for car services like Uber and Lyft to bargain collectively was entitled to immunity under the state action doctrine.

Second, in March 2018, the Division filed a statement of interest in TIKD v. Florida Bar (S.D. Fla.), arguing that the Florida Bar is not automatically immune under the state action doctrine, but must instead show “active supervision” and “clear articulation,” as required under the Supreme Court’s North Carolina Board of Dental Examiners v. FTC decision. The Division also filed a statement of interest in Marion Healthcare v. Southern Illinois Healthcare (S.D. Ill.), to rebut an argument that short-term exclusive contracts are always legal as a matter of law.

The Division welcomes requests from parties to district court and court of appeals proceedings—and from courts themselves—to solicit the views of the Antitrust Division on the proper interpretation and application of the antitrust laws.

Supreme Court Building

Photo Credit: /Stockbyte/Thinkstock

Updated April 10, 2018

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