There is a very interesting development in the ongoing saga of the FTC v. Schering-Plough Corporation, a very important antitrust case involving a payment from a branded pharmaceutical manufacturer to a generic to delay entry (a “reverse payment”). The interesting development is that the FTC, who offered a brief in favor of cert., has now also filed a supplemental brief in response to the DOJ’s brief recommending denial of cert. The excellent Antitrust Review blog has been all over this, and has posted copies of the FTC and DOJ briefs (see also Patently-O).
Does anyone know of another example of an inter-agency conflict of this nature between the FTC and Solicitor General on an antitrust issue?
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Thanks, David.
There was speculation on an ABA listserve this week that there was such an inter-agency conflict in Indiana Federation of Dentists and Superior Ct. Trial Lawyers. A quick google search led me to the first footnote of the FTC’s petition for cert in this case (available at http://patentlaw.typepad.com/patent/FTC_20Brief.pdf):
“The Commission has exercised its authority to represent itself before this Court only twice previously, in the 30 years that it has had that authority. See Pub. L. No. 93-637, § 204(a), 88 Stat. 2183, 2199-2200 (1975); FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986) (“IFD”); FTC v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990). The Commission takes this step now not only to seek correction of a ruling that conflicts with fundamental antitrust and administrative law principles, but because of the great urgency of the matter, in light of the billions of dollars of consumer savings on prescription drugs that the ruling below jeopardizes.”
Although this is not percise enough to answer the question definitively, I would start any inquiry with these two cases.