Announced Actions for May 25, 2004

Commission authorization of the staff to file amicus brief: The Commission has authorized the filing of a joint amicus brief with the Department of Justice in McMahon v. Advanced Title Services Company of West Virginia, a case before the West Virginia Supreme Court of Appeals. The case concerns an opinion by the West Virginia State Bar Unauthorized Practice of Law Committee that would prohibit non-lawyers from performing various real estate settlement functions – including title searching, title reports, closings, and document deliveries.

According to the joint brief, the state’s Supreme Court of Appeals should reverse the lower court’s decision, which adopts the State Bar opinion. The brief argues that allowing lay service providers to compete with lawyers in the provision of real estate settlement services is likely to benefit West Virginia consumers in a variety of ways. In addition, the brief states that there is no empirical evidence of likely harm to consumers from allowing non-lawyer settlements. Finally, according to the brief, even if the State Supreme Court was to find that the current protection afforded to consumers is insufficient, it could accomplish such consumer protection goals in a less-restrictive manner than by banning all lay closings.

The Commission vote authorizing the amicus brief, which can be found as a link to this press release on the FTC’s Web site, was 5-0 (FTC File No. V040017; the staff contact is James Cooper, Office of Policy Planning, 202-326-3367.)

Commission issuance of advisory opinion: The Commission has advised Bristol-Myers Squibb (BMS) that its proposed settlement with Teva Pharmaceuticals USA, Inc., does not raise issues under Section 5 of the Federal Trade Commission Act. The Commission’s consent order in Docket C-4076, issued in 2003, requires BMS to obtain such advice prior to entering into certain agreements to settle litigation over alleged infringement of a BMS patent. The Commission issued the order in connection with a complaint that alleged that BMS paid Schein Pharmaceutical, Inc., $72.5 million not to market Schein’s generic version of BMS’s BuSpar product until BMS’s patent expired. BuSpar is used to treat certain anxiety disorders. The complaint also alleged that BMS engaged in anticompetitive efforts to maintain its monopolies in Taxol and in Platinol, both used in cancer chemotherapies.

BMS and Teva have been engaged in litigation over Teva’s alleged infringement of BMS’s patent for the drug marketed under the brand-name Paraplatin®. Although the patent expired on April 14, 2004, BMS received a six-month pediatric exclusivity period, until October 14, 2004, based on certain filings with the Food and Drug Administration. In seeking the required advice, BMS explained that Teva and BMS had agreed to settle their litigation, with Teva forgoing any challenge to the exclusivity period in exchange for receiving the right to distribute, beginning June 24, 2004, Paraplatin® purchased from BMS. Thus, BMS has agreed to share the last half of its exclusivity period with Teva. Upon expiration of the exclusivity period, Teva or any other company that has received FDA approval may begin to market its generic product. In giving its advice, the Commission noted that the proposed settlement reflected a reasonable assessment of the respective litigation positions, provided no mechanism for BMS to share supracompetitive profits with Teva, and did not prevent Teva from marketing its own product after expiration of the exclusivity period.

Redacted copies of BMS’s request and the Commission’s response are available on the FTC’s Web site as a link to this press release. (The vote authorizing the staff to issue the advisory opinion was 5-0; the staff contact is Daniel P. Ducore, Bureau of Competition, 202-326-2526).

Copies of the documents mentioned in this release are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Call toll-free: 1-877-FTC-HELP.