VI. Amicus Briefs

1. Brief of the Federal Trade Commission as Amicus Curiae in American Bioscience, Inc. v. Bristol-Myers Squibb Co.,
   No. CV-00-08577 WMB (AJWx) (C.D. Cal., amicus brief filed September 1, 2000). American Bioscience, Inc. (ABI) sued Bristol-Myers Squibb, the maker of Taxol, a drug used to treat cancer, to force it to list a patent on the FDA Orange Book, and obtained an unopposed temporary restraining order (TRO). As part of a proposed settlement between ABI and Bristol, the parties agreed that (1) the court would enter a finding that ABI's patent should be listed in the Orange Book, and (2) Bristol would maintain the listing of the patent in the Orange Book. In its amicus brief, the Commission asked the judge to consider the anticompetitive ramifications of the proposed settlement. First, another court might find any judicial finding that the patent met the statutory requirements for listing on the Orange Book persuasive, or even conclusive, thus hindering a generic company's attempt to challenge the listing. Second, the order to maintain the listing would conflict with any later court order requiring Bristol to delist the patent, and resolving the conflicting court orders could further forestall generic entry. The brief also announced the Commission's investigation of ABI and Bristol, and asked the court to consider its pendency when deciding on the proposed settlement. The court ultimately determined that ABI could not maintain a private action under the Food, Drug, and Cosmetics Act, dissolved the TRO, and ordered Bristol to delist the ABI patent.
2. Brief for the United States and the Federal Trade Commission as Amici Curiae in Support of Suggestion of Rehearing En Banc, Supplemental En Banc Brief for the United States and the Federal Trade Commission as Amici Curiae urging reversal in support of Appellant, Surgical Care Center of Hammond v. Hospital Service Dist. No. 1 of Tangipahoa Parish,
   153 F.3d 220 (5th Cir. 1998); reh'g granted en banc, 162 F.3d 294 (5th Cir. 1998); rev'd and remanded, 171 F.3d 231 (5th Cir. 1999), cert denied, 120 S. Ct. 398 (1999). An outpatient surgical center sued a Louisiana hospital service district alleging anticompetitive activity in violation of Section 2 of the Sherman Act that included signing exclusive contracts with five managed care plans. The district court and a panel of the Fifth Circuit concluded that the hospital district, as a state political subdivision, was entitled to state action immunity because the conduct was a foreseeable result of the state statutory scheme which authorizes hospital districts and specifies their powers and duties. The Department of Justice and Commission filed an amicus brief in support of a rehearing en banc, and later a supplemental amicus brief on the merits in support of reversal, arguing that state action immunity protects state subdivisions only when there is a clearly articulated state policy to displace competition. The briefs also argued that the panel's ruling held conduct immune from the Sherman Act and gave the hospital district, in the absence of a state policy to displace competition, special license to violate the antitrust laws. The en banc court ruled unanimously that the state legislature did not make sufficiently clear its intent to insulate the hospital district from the constraints of the Sherman Act, reversed the panel's ruling and remanded the case back to the district court. The Supreme Court denied the defendant's petition for certiorari on November 1, 1999.
3. Brief for the United States and the Federal Trade Commission as Amicis Curiae in Ertag v. Naples Community Hospital,
   No. 92-341-CIV-FTM-25D, slip op. (M.D. Fla. July 31, 1995); No. 95-3134 (11th Cir.). In a case where neurologists alleged that a hospital violated the federal antitrust laws by restricting the official interpretation of MRI scans to radiologists, the district court granted summary judgment for the defendant hospital on the ground that the complaining neurologists lacked standing under Todorov v. DCH Healthcare Auth., 921 F.2d 1438 (11th Cir. 1991), because they could not show antitrust injury nor were they efficient enforcers of antitrust law. The Commission and the Justice Department filed an amicus brief arguing that Todorov did not establish a general rule barring suits by excluded competitors. The brief also argued that a general rule denying standing to excluded competitors whenever there is a possibility consumers or the government could sue is inconsistent with Supreme Court precedent. In an unpublished decision on August 1, 1997, the Eleventh Circuit reversed the district court decision, ruling that the district erred in concluding that the neurologists lacked standing to assert their antitrust claims.
4. Brief for the United States and the Federal Trade Commission as Amici Curiae in Support of Petition for Rehearing, Blue Cross and Blue Shield United of Wisconsin v. Marshfield Clinic,
   65 F.3d 1406 (7th Cir. 1995), cert. denied, 116 S. Ct. 1288 (1996). A health insurer filed an antitrust suit against a clinic, claiming that the clinic had monopolized the market for HMOs and engaged in various anticompetitive agreements. The Commission and Justice Department filed an amicus brief in support of a petition for rehearing, asking that the court modify its opinion on the subject of whether HMOs constitute an antitrust market, and whether "most favored nations" provisions may be anticompetitive. The Court modified its decision by adding statements that its rulings on these two issues were based upon and related only to the facts in the immediate case. In all other respects, the court denied the petition for rehearing.
5. Brief of the Federal Trade Commission as Amici Curiae on Appeal from United States District Court, Nurse Midwifery Associates v. Hibbett,
   (See Section II C for citation and annotation.)
6. Brief of the Federal Trade Commission as Amici Curiae on Appeal from United States District Court, Parker v. Kentucky Board of Dentistry,
   (See Section II D for citation and annotation.)
7. En Banc Brief of the Federal Trade Commission as Amicus Curiae on Appeal from United States District Court, Bolt v. Halifax Hospital Medical Center,
   appealing 851 F.2d 1273 (11th Cir. 1988), vacated, reh'g granted en banc, 861 F.2d 1233 (11th Cir. 1988), remanded to panel, 874 F.2d 810 (11th Cir. 1990), cert. denied, 109 L. Ed. 322 (1990). In an antitrust action brought by a vascular and general surgeon, whose medical staff privileges had been revoked at three hospitals, against the hospitals, members of their medical staffs, and the local medical society, at issue was whether the "active supervision" component of the state action doctrine was satisfied by the availability of common law judicial review. In its amicus brief, the Commission argued that the Eleventh Circuit Court panel had previously erred in holding that "active supervision" was met by common law judicial review, which entailed consideration of the fairness of the procedures used by the private parties, the validity of the private decision makers' criteria under state law, and the sufficiency of the evidence. The Commission stated that even if Florida courts in fact provided sufficient review to meet the panel's standard, that standard would not satisfy the standard set forth by the Supreme Court in Patrick v. Burget, 486 U.S. 94 (1988), for "active supervision" - that the state undertake a thorough, on-the-merits review of individual private decisions to determine whether that conduct is in accordance with state policy. The en banc court ruled that the appellee hospitals and their medical staffs waived at oral argument any claim to state action immunity. The court reinstated the panel opinion in 851 F.2d 1273, with the exception of the discussion of the state action exemption, which remains vacated. Approximately one month later, a panel of the 11th Circuit held, in Shahawy v. Harrison, 875 F.2d 1525 (11th Cir. 1989), that judicial review of hospital privilege decisions did not meet the standards for active supervision set forth by the Supreme Court in Patrick.
8. Brief of the United States and Federal Trade Commission as Amici Curiae on Petition for Writ of Certiorari, and Brief of the United States and Federal Trade Commission as Amicus Curiae on Writ of Certiorari, Patrick v. Burget,
   486 U.S. 94 (1988). A jury verdict in favor of a physicians who had alleged bad faith termination of staff privileges by physicians and a hospital in violation of the antitrust laws was reversed by the Ninth Circuit, which held that the defendants' action was protected by the state action doctrine because state law required hospitals to conduct peer review to promote quality of care. The Department of Justice and Commission filed an amicus brief supporting certiorari, and later an amicus brief on the merits in support of reversal, arguing that the state action doctrine did not immunize the challenged conduct from antitrust liability because there was no state supervision of that conduct. The Supreme Court reversed the Ninth Circuit on this issue.
9. Brief of the Federal Trade Commission as Amicus Curiae on Appeal from United States District Court, Bhan v. NME Hospitals, Inc.,
   772 F.2d 1467 (9th Cir. 1985). In a nurse anesthetist's suit challenging a hospital's policy of allowing only physician anesthesiologists to perform anesthesia services in the hospital's operating rooms, the Commission filed an amicus brief arguing for reversal of the district court's dismissal of the case based on that court's reasoning that physician anesthesiologists and nurse anesthetists did not compete. The Commission argued that California law does not preclude competition between the two groups, and that the district court's finding was contrary to established precedent and the premises of antitrust law. The Ninth Circuit reversed the district court on this issue.
10. Brief of the Federal Trade Commission as Amicus Curiae, Lombardo v. Our Lady of Mercy Hospital,
    No. 85-2474 (7th Cir. Amicus brief filed Nov. 7, 1985), appeal dismissed, (appealing Lombardo v. Sisters of Mercy Health Corp., 1985-2 Trade Cases (CCH) ¶66,749 (N.D. Ill. 1985). In a case brought by two osteopathic physicians charging that an Indiana hospital's denial of staff and surgical privileges violated federal and state antitrust laws, the Commission filed an amicus brief arguing that the state action doctrine would not protect from antitrust scrutiny the denial of privileges and the participation of private physicians in adopting and implementing the hospital policy excluding osteopathically-trained surgeons. The Commission argued that neither of the two requirements for state action - a clear articulation of an intention to supplant competition or active state supervision - was met under the relevant statute which required hospitals to have peer review systems and hospital privilege review mechanisms.
11. Brief of the Federal Trade Commission as Amicus Curiae on Appeal from United States District Court, North Carolina ex rel. Edmisten v. P.I.A. Asheville, Inc.,
    722 F.2d 59 (4th Cir. 1983), cert. denied, 471 U.S. 1003 (1985). The Attorney General of North Carolina brought suit alleging that the acquisition of a private psychiatric hospital by a hospital system, which would result in the system's ownership of all the private psychiatric hospitals within the area served by the Western North Carolina Health Systems Agency, violated the federal and state antitrust laws. The Commission and Department of Justice filed an amicus brief arguing that the National Health Planning Act and the state statute adopted pursuant to that Act did not impliedly repeal the antitrust laws, because there was no "plain repugnancy" between the regulatory scheme and the antitrust laws. They also argued that the defendants' activities were not exempt from antitrust scrutiny under the state action doctrine. The Fourth Circuit held that antitrust immunity was implied by the legislative history and regulatory structure of the Act.
12. Brief of the United States and Federal Trade Commission as Amici Curiae on Petition for Writ of Certiorari, Jefferson Parish Hospital District No. 2 v. Hyde,
    (See Section II F for citation and annotation.)
13. Brief of the United States and Federal Trade Commission as Amici Curiae on Petition for Writ of Certiorari, Trustees of Rex Hospital v. Hospital Building Co.,
    464 U.S. 890 and 904 (1983) (denying writ of certiorari). In an antitrust suit brought by a hospital operator alleging a conspiracy by other hospital operators to prevent the plaintiff from expanding its hospital facilities, the Commission and Department of Justice filed an amicus brief in support of the petition for certiorari, arguing that the Court of Appeals had erred in creating a special rule-of-reason standard under the Sherman Act for evaluating the actions of private health care providers who had attempted to block the construction or expansion of competing hospital facilities through the certificate-of-need (CON) process. The Department of Justice and Commission argued that the rule of reason analysis adopted by the lower court might improperly protect abuse of the CON process by hospital competitors.