Nos. 15-1184, 15-1185, 15-1186, 15-1187, 15-1274, 15-1323, 15-1342

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________________________________________________

IN RE EFFEXOR XR ANTITRUST LITIGATION

__________________________________________________

On Appeal from the United States District Court

for the District of New Jersey

Lead Case No. 3:11-cv-05479-PGS-LHG

___________________________________________________

SUPPLEMENTAL BRIEF OF AMICUS CURIAE FEDERAL TRADE

COMMISSION SUPPORTING PLAINTIFFS-APPELLANTS 

___________________________________________________

DEBORAH L. FEINSTEIN

Director

MARKUS H. MEIER

Acting Deputy Director

BRADLEY S. ALBERT

Deputy Assistant Director

ELIZABETH R. HILDER

HEATHER JOHNSON

Attorneys

BUREAU OF COMPETITION

FEDERAL TRADE COMMISSION

DAVID C. SHONKA

Acting General Counsel

JOEL MARCUS

Director of Litigation

MICHELE ARINGTON

Assistant General Counsel

OFFICE OF GENERAL COUNSEL

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-3157

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1

ARGUMENT.............................................................................................................2

I. Defendants’ Settlement Is Not “Petitioning” Activity Exempt From The 

Antitrust Laws Under Noerr. ........................................................................2

A. The Noerr Doctrine Protects Advocacy, Not Commercial Activity..........2

B. Agreements Among Private Parties Settling Litigation Are Private 

Commercial Agreements, Not Petitioning.................................................5

C. Consent Judgments Adopting Private Settlements Do Not Confer Noerr

Protection. ..................................................................................................6

II. Defendants’ Noerr Defense Rests on The Incorrect Premise That The 

Challenged Restraint Was The Result Of Government Action. .................10

CONCLUSION........................................................................................................14

COMBINED CERTIFICATES

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TABLE OF AUTHORITIES

CASES

A.D. Bedell Wholesale Co., Inc. v. Philip Morris, Inc., 263 F.3d 239 

(3d Cir. 2001)...................................................................................................6, 11

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988)...... 3, 4, 13

In re Androgel Antitrust Litig., No. 1:09-cv-955, 2014 WL 1600331 

(N.D. Ga. Apr. 21, 2014)...................................................................................8, 9

Andrx Pharm., Inc. v. Biovail Corp. Int’l, 256 F.3d 799 (D.C. Cir. 2001) ...............5

Armstrong Surgical Ctr. v. Armstrong Cty. Mem’l Hosp., 185 F.3d 154 

(3d Cir. 1999).......................................................................................................11

Blackburn v. Sweeney, 53 F.3d 825 (7th Cir. 1995)..................................................5

Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508 (1972) ......................3

Campbell v. City of Chicago, 823 F.2d 1182 (7th Cir. 1987)....................................6

In re Cardizem CD Antitrust Litig., 105 F. Supp. 2d 618 (E.D. Mich. 2000), 

aff’d, 332 F.3d 896 (6th Cir. 2003)........................................................................5

Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119 (3d Cir. 1999) .......................11

In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F. Supp. 2d 188 (E.D.N.Y. 

2003) ................................................................................................................8, 10

Columbia Steel Casting Co., Inc. v. Portland Gen. Elec. Co., 111 F.3d 1427 

(9th Cir. 1996)........................................................................................................4

Duplan Corp. v. Deering Milliken, Inc., 594 F.2d 979 (4th Cir. 1979).....................6

E.R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 

(1961).......................................................................................................... 2, 3, 14

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Fox v. U.S. Dep’t of Hous. & Urban Dev., 680 F.2d 315 (3d Cir. 1982)..................7

FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013).............................................................6

Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 

(1986).......................................................................................................... 6, 7, 10

Mass. Sch. of Law at Andover v. Am. Bar Ass’n, 107 F.3d 1026 

(3d Cir. 1997).......................................................................................................11

MedImmune v. Genentech, 427 F.3d 958 (Fed. Cir. 2005), rev’d, 549 U.S. 118 

(2007)...................................................................................................................11

MedImmune v. Genentech, No. 03-2567, 2003 WL 25550611 

(C.D. Cal. Dec. 23, 2003) ....................................................................................11

In re N.M. Natural Gas Antitrust Litig., 1982 U.S. Dist. LEXIS 9452 

(D.N.M. Jan. 26, 1982) ..........................................................................................5

In re Nexium (Esomeprazole) Antitrust Litig., 968 F. Supp. 2d 367 

(D. Mass. 2013)........................................................................................... 8, 9, 12

Premier Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n, 814 F.2d 358 

(7th Cir. 1987)........................................................................................................5

Prof’l Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 

(1993).....................................................................................................................5

Segar v. Mukasey, 508 F.3d 16 (D.C. Cir. 2007).......................................................7

Sessions Tank Liners v. Joor Mfg., 17 F.3d 295 (9th Cir. 1994).............................11

Ticor Title Ins. Co. v. FTC, 998 F.2d 1129 (3d Cir. 1993)........................................4

United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965)...........................3

United States v. Singer Mfg. Co., 374 U.S. 174 (1963).............................................5

Wicker v. Oregon, 543 F.3d 1168 (9th Cir. 2008).....................................................7

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INTRODUCTION

The FTC submits this supplemental amicus brief to address defendants’ 

argument, not addressed by the court below, that their settlement agreement is 

exempt from antitrust scrutiny under the Noerr-Pennington doctrine. 

The Supreme Court has made clear that the Noerr doctrine protects 

advocacy, not commercial activity. Settlements among private litigants, including 

patent settlements, have long been treated as commercial activity subject to 

antitrust scrutiny. Defendants’ contention that a consent decree creates a Noerr 

defense ignores what the Supreme Court has called “the most fundamental 

characteristic” of consent decrees: the source of the court’s authority to enter any 

such judgment is the parties’ agreement. Indeed, every court faced with the 

question raised here has rejected the argument that a consent decree confers Noerr

protection on an agreement between a brand-name drug company and a generic 

competitor settling Hatch-Waxman patent litigation. 

Defendants’ effort to stretch the Noerr doctrine is not only wrong on the 

law, it is also bad policy, with implications well beyond this case. If Defendants 

were correct, private litigants could shield a wide variety of anticompetitive 

business arrangements from antitrust law merely by incorporating them into a 

settlement agreement and obtaining a consent order. Nothing in Noerr or its 

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progeny supports such a result. Accordingly, the FTC urges this court to reject 

defendants’ Noerr argument.

ARGUMENT

I. DEFENDANTS’ SETTLEMENT IS NOT “PETITIONING” ACTIVITY EXEMPT 

FROM THE ANTITRUST LAWS UNDER NOERR.

A. The Noerr Doctrine Protects Advocacy, Not Commercial Activity.

The essence of the Noerr doctrine, first articulated in E.R.R. Presidents 

Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), is that parties do not 

violate the antitrust laws when they merely seek anticompetitive action from the 

government. Id. at 135 (“no violation of the [Sherman] Act can be predicated upon 

mere attempts to influence the passage or enforcement of laws”). Thus, a publicity 

campaign conducted by railroads to influence the passage of state laws detrimental 

to competing trucking companies was not subject to antitrust liability, because “the 

Sherman Act does not prohibit two or more persons from associating together in an 

attempt to persuade the legislature or the executive to take particular action with 

respect to a law that would produce a restraint or a monopoly.” Id. at 136. 

The Court offered two principal reasons for its decision: First, “[i]n a 

representative democracy such as this . . . the whole concept of representation 

depends upon the ability of the people to make their wishes known to their 

representatives.” Id. at 137. The Court explained that the Sherman Act regulates

“business activity,” not “political activity.” Id. Second, the Court noted that “[t]he 

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right of petition is one of the freedoms protected by the Bill of Rights, and we 

cannot, of course, lightly impute to Congress an intent to invade these freedoms.” 

Id. at 138. Subsequent Supreme Court decisions made clear that the Noerr 

doctrine also applies to petitioning the executive and judicial branches of 

government. See United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965)

(advocacy directed at executive officials); Cal. Motor Transp. Co. v. Trucking 

Unlimited, 404 U.S. 508, 510-11 (1972) (petitioning activity before courts and 

administrative agencies). 

The Supreme Court has also made clear that Noerr’s protection for 

petitioning does not shield commercial activity, even when designed to have a 

political impact. In Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 

492 (1988), it held Noerr protection did not extend to a concerted effort to exclude 

a competitor’s products from an industry association’s product standards, 

notwithstanding that the defendants’ objective was to get state and local 

governments to enact those standards as law. The Court recognized that Noerr

precludes antitrust liability for restraints that are “incidental to a valid effort to 

influence government action” or “valid governmental action” resulting from such 

efforts. Id. at 499. But the Court rejected the “absolutist position” that Noerr 

applies to “every concerted effort that is genuinely intended to influence 

governmental action.” Id. at 503. Otherwise, the doctrine could swallow the 

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Sherman Act, as “competitors would be free to enter into horizontal price 

agreements as long as they wished to propose that price as the appropriate level for 

governmental rate making or price supports.” Id. The Court observed that the 

challenged conduct—coordination among competitors in the context of a private

standard-setting process—was the type of commercial activity that the antitrust 

laws traditionally scrutinized. Id. at 505-06. Such “commercial activity with a 

political impact,” the Court held, did not warrant Noerr protection. Id. at 507, 509-

10. Thus, as the Court explained, the scope of Noerr protection depends “on the 

source, context, and nature of the anticompetitive restraint at issue.” Id. at 499.

Courts therefore make a distinction between merely urging the government 

to restrain trade and asking the government to adopt, approve, or enforce a private 

agreement on marketplace behavior. Government advocacy is protected by Noerr; 

seeking governmental approval of a private agreement is not. See, e.g., Ticor Title 

Ins. Co. v. FTC, 998 F.2d 1129, 1138 (3d Cir. 1993) (rejecting defendants’ 

argument that their collective rate proposal was Noerr-protected because they 

sought government approval of those rates; defendants’ conduct was “commercial 

activity with a political impact,” rather than “political activity with a commercial 

impact”) (quoting Allied Tube, 486 U.S. at 507).

1

 1 See also Columbia Steel Casting Co., Inc. v. Portland Gen. Elec. Co., 111 F.3d 

1427, 1446 (9th Cir. 1996) (no Noerr protection where utility entered into a market 

division agreement and then obtained an order from a state agency, noting that 

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B. Agreements Among Private Parties Settling Litigation Are Private 

Commercial Agreements, Not Petitioning.

In a private lawsuit, the parties seek government action in the form of a 

decision by the court on the merits of the suit. Although such a decision may 

affect competition, the parties’ conduct in furtherance of litigation is generally 

entitled to Noerr protection.

2 When parties enter a settlement agreement, however, 

they voluntarily withdraw their dispute from the court to resolve matters among 

themselves. Such private agreements are not treated as protected conduct 

incidental to litigation petitioning. See Andrx Pharm., Inc. v. Biovail Corp. Int’l, 

256 F.3d 799, 818 (D.C. Cir. 2001); In re Cardizem CD Antitrust Litig., 105 F. 

Supp. 2d 618, 641 (E.D. Mich. 2000), aff’d on other grounds, 332 F.3d 896 (6th 

Cir. 2003); In re N.M. Natural Gas Antitrust Litig., 1982 U.S. Dist. LEXIS 9452, at 

*16 (D.N.M. Jan. 26, 1982). Instead, private settlement agreements have long 

been treated as commercial agreements subject to the antitrust laws. 3 Indeed, the 

 

“PGE is not being held liable for filing the application” but for “agreeing with 

PP&L to replace competition with area monopolies”); Premier Elec. Constr. Co. v. 

Nat’l Elec. Contractors Ass’n, 814 F.2d 358 (7th Cir. 1987) (agreement between 

union and trade association to fix prices was not immunized by lawsuit to enforce 

the agreement).

2 Noerr protection does not extend, however, to “sham” lawsuits. See Prof’l Real 

Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993).

3 See, e.g., United States v. Singer Mfg. Co., 374 U.S. 174 (1963) (settlement of 

patent interference claim before the PTO held to violate Sherman Act); Blackburn 

v. Sweeney, 53 F.3d 825, 828 (7th Cir. 1995) (holding that a dissolution agreement 

between former law partners settling a state court lawsuit was a horizontal 

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Supreme Court reaffirmed this principle in FTC v. Actavis, Inc., 133 S. Ct. 2223, 

2232 (2013), noting that “this Court’s precedents make clear that patent related 

settlement agreements can sometimes violate the antitrust laws.”

In contrast to settlement agreements among private parties, settlements with 

government parties have been treated as Noerr-protected because they involved

petitioning to those governmental entities. See, e.g., A.D. Bedell Wholesale Co., 

Inc. v. Philip Morris, Inc., 263 F.3d 239, 252 (3d Cir. 2001) (applying Noerr

protection to agreement settling a lawsuit brought by various state Attorneys 

General); Campbell v. City of Chicago, 823 F.2d 1182, 1186-87 (7th Cir. 1987)

(applying Noerr to settlement with city).

C. Consent Judgments Adopting Private Settlements Do Not Confer 

Noerr Protection.

The entry of a consent decree provides no reason to deviate from the 

principle that a settlement resolving a private dispute is commercial conduct 

subject to antitrust scrutiny. As the Supreme Court explained in Local No. 93, 

International Association of Firefighters v. City of Cleveland, 478 U.S. 501 (1986), 

while consent decrees are at some level judicial acts, a court’s role in entering a 

consent judgment differs fundamentally from its role in actually adjudicating a 

 

agreement to allocate markets among competitors and thus a per se violation of the 

Sherman Act); Duplan Corp. v. Deering Milliken, Inc., 594 F.2d 979, 981 (4th Cir. 

1979) (finding a patent settlement agreement to be the core of a horizontal 

agreement in violation of the antitrust laws).

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dispute.

4 When parties pursue litigation, courts reach determinations of facts and 

applicable law via the adversary process. But when courts enter consent 

judgments, “it is the agreement of the parties, rather than the force of the law upon 

which the complaint was originally based, that creates the obligations embodied in 

the consent decree.” Id. at 522. “Indeed, it is the parties’ agreement that serves as 

the source of the court’s authority to enter any judgment at all.” Id.

Consent decrees, the Court explained, “closely resemble contracts.” Id. at 

519. Their “most fundamental characteristic” is that they are voluntary agreements

negotiated by the parties for their own purposes. Id. at 521-22; id. at 522 (“the 

decree itself cannot be said to have a purpose; rather the parties have purposes”) 

(emphasis in original). Consequently, when parties seek to enforce agreements 

adopted in consent orders, courts construe terms of the settlement based on the 

intent of the parties, not of the court. See, e.g., Fox v. U.S. Dep’t of Hous. & 

Urban Dev., 680 F.2d 315, 321 (3d Cir. 1982) (examining evidence regarding “the 

intention of the parties”); Wicker v. Oregon, 543 F.3d 1168, 1174 (9th Cir. 2008)

(if text of consent decree is ambiguous, court looks at the “contracting parties’ 

intent”); Segar v. Mukasey, 508 F.3d 16, 22 (D.C. Cir. 2007) (court will look at 

“the parties’ subjective intent” if a consent decree is ambiguous).

 4 The question in Local Number 93 was whether a provision of Title VII that 

precluded the court from entering an “order” providing certain relief precluded the 

court from entering a consent decree providing such relief. 

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Consistent with this understanding of consent decrees, every court to have 

considered the question has rejected a Noerr defense in the context presented here: 

an antitrust challenge to agreements between a brand-name drug company and a 

generic competitor settling Hatch-Waxman patent infringement litigation. See In 

re Androgel Antitrust Litig., No. 1:09-cv-955, 2014 WL 1600331, at *6-9 (N.D. 

Ga. Apr. 21, 2014); In re Nexium (Esomeprazole) Antitrust Litig., 968 F. Supp. 2d 

367, 395-98 (D. Mass. 2013); In re Ciprofloxacin Hydrochloride Antitrust Litig., 

261 F. Supp. 2d 188, 212-13 (E.D.N.Y. 2003) (Cipro). In each case, the drug 

company defendants argued that they were shielded by the Noerr doctrine because 

their private agreement was embodied in a consent decree, and therefore judicial 

action, rather than their private agreement, caused the alleged competitive harm. 

In rejecting the defendants’ arguments, each of these courts noted the limited role 

played by judges when parties seek to settle private disputes with entry of a 

consent judgment.

In Androgel—the proceeding on remand from Actavis—the court concluded 

that the “ ‘source ... of the anticompetitive restraint at issue’ is the parties’ reverse 

payment agreement itself, not the governmental action.” 2014 WL 1600331, at *8

(quoting Allied Tube, 486 U.S. at 499). The court also explained that Actavis

demonstrates that such settlements are “precisely the type of agreement that should 

have its validity determined by the antitrust laws.” Id. at *7. It recognized that

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providing Noerr protection in these circumstances “would largely eviscerate” 

Actavis because subsequent settlements would always include a consent judgment. 

Id. 

In Nexium, the court recognized that, unlike a litigated decision, “which is 

aided by an adversarial system that grants a judge the occasion formally to review 

the merits of the claims asserted,” the means by which parties obtain a consent 

judgment are essentially “the same as those used to enter into private settlement or 

any private commercial contract.” 968 F. Supp. 2d at 396 (internal quotation 

marks omitted). It observed that the terms of consent decrees “are arrived at 

through mutual agreement of the parties,” id. (quoting Local No. 93, 478 U.S. at 

519), and that entry of a consent decree “does not, by itself, reflect a court’s assent 

to the substantive terms found therein.” Id. at 398. The court concluded that the 

drug companies’ settlement through a consent order could not be fairly 

characterized as Noerr-protected petitioning to persuade a government decisionmaker. Id.

In In re Ciprofloxacin Hydrochloride Antitrust Litigation, the court likewise 

focused on the limited role played by judges in the consent judgment context. It

found that the defendants’ Noerr defense was “easily refuted” because, among 

other reasons, the challenged agreements were “private agreements between the 

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defendants,” in which the judge “played no role other than signing the Consent 

Judgment.” 261 F. Supp. 2d at 212.

II. DEFENDANTS’ NOERR DEFENSE RESTS ON THE INCORRECT PREMISE 

THAT THE CHALLENGED RESTRAINT WAS THE RESULT OF GOVERNMENT 

ACTION.

Defendants do not appear to dispute that private agreements settling 

litigation warrant no Noerr protection. Instead, they argue that Noerr applies here 

because (1) their settlement agreement was contingent on the patent court’s entry 

of the orders they requested; and (2) the consent decree was entered after what the 

court below deemed to be “strong judicial intervention in the antitrust inquiry.” 

Neither of these features, however, makes the court’s order the source of the 

challenged restraint.

First, defendants’ argument that the court’s entry of their requested orders is 

a superseding cause of plaintiffs’ injury ignores the voluntary character of consent 

judgments and a court’s limited role when it enters a consent judgment. See Local 

No. 93, 478 U.S. at 523 (“the obligations contained in a consent decree . . . [are] 

created by agreement of the parties rather than imposed by the court”) (emphasis 

added). Even “the choice . . . whether to rely on contractual remedies or to have an 

agreement entered as a consent decree . . . is itself made voluntarily by the parties.” 

Id. Defendants’ argument that the court’s order is the source of the restraint rests 

on inapposite cases, principally involving regulatory government action that differs

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fundamentally from consent judgments.5 The only case they cite involving a 

consent judgment arose in a wholly different context, and its Noerr theory was not 

upheld on appeal.

6

Indeed, defendants’ causation argument is belied by the express terms of 

both the patent court’s order and their own license agreement. The court’s order 

provides that Teva may not sell generic Effexor XR “except as licensed under the 

License Agreement.” JA 1298. The license agreement, in turn, leaves Wyeth and 

Teva—not the court—in control of the terms of Teva’s entry with generic Effexor 

XR, providing that the parties can modify the agreement upon written 

 5 See A.D. Bedell Wholesale Co., 263 F.3d at 252 (petitioning to state Attorneys 

General); Armstrong Surgical Ctr. v. Armstrong Cty. Mem’l Hosp., 185 F.3d 154,

156 (3d Cir. 1999) (state department of health denial of certificate of need 

application); Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 121-22 (3d Cir. 

1999) (International Trade Commission decision on anti-dumping petition); Mass. 

Sch. of Law at Andover v. Am. Bar Ass’n, 107 F.3d 1026, 1036 (3d Cir. 1997)

(decision of state acting as sovereign to adopt bar admission requirements); 

Sessions Tank Liners v. Joor Mfg., 17 F.3d 295, 296, 299 (9th Cir. 1994) (injuries 

directly resulting from adoption of model fire code by local governments).

6 MedImmune v. Genentech, No. 03-2567, 2003 WL 25550611 (C.D. Cal. Dec. 23, 

2003), held that Noerr applied to a settlement accompanied by a consent judgment 

in a case brought to overturn a Patent and Trademark Office (PTO) decision in a 

patent interference proceeding. The plaintiffs’ theory of harm depended on 

subsequent action by the PTO (issuance of a new patent) that concededly was the 

result of petitioning. See id. at *5 n.5, *8-10. On appeal, the Federal Circuit 

affirmed the district court’s dismissal of the antitrust claim but found that “it was 

unnecessary for the district court to have relied on Noerr-Pennington immunity.”

MedImmune v. Genentech, 427 F.3d 958, 967 (Fed. Cir. 2005), rev’d on other 

grounds, 549 U.S. 118 (2007).

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authorization by each company. JA 1334.7 Thus, under the court’s order, the 

parties themselves jointly control the challenged restraint. Manifestly, the source 

of the restraint is the agreement between the defendants, not governmental action.

Second, defendants’ contentions that the patent court “scrutinized the 

proposed terms for antitrust concerns” (Teva Br. at 66) and did not play merely a 

“ministerial” role (Wyeth Br. at 65), cannot create a Noerr defense. To begin with, 

defendants have failed to demonstrate that the patent court played any role in 

crafting the terms of the settlement agreement.8

 Nor does the record reflect any 

“strong judicial intervention” in any antitrust inquiry. All it shows is that the 

patent court issued a scheduling order giving the FTC an opportunity to submit

objections to defendants’ proposed settlement (as required by a 2002 FTC consent 

order with Wyeth). But that order does not indicate the patent court engaged in 

any assessment of the settlement terms. Indeed, the record reflects that Wyeth told 

the FTC that the parties did not intend to independently raise antitrust issues with 

the court. JA 20 (quoting FTC’s letter to Wyeth’s counsel).

9

 7 Section 13.7 of the License Agreement provides that any subsequent changes to 

the agreement must be “reduced to writing and signed by an authorized officer of 

each Party.” JA 1334.

8 See Nexium, 968 F. Supp. 2d at 398 (“it is not apparent that the New Jersey 

District Court actually played an independent role in drafting the terms in the 

consent judgments”).

9 Even further afield is Wyeth’s suggestion that its compliance with its obligations 

under the FTC’s consent decree meant the settlement agreement was “permissible” 

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In any event, the Court should reject the Noerr defense regardless of whether 

the judge’s role in entering a consent order is deemed “passive” or “ministerial.”

As demonstrated above, “the source, context, and nature of the anticompetitive 

restraint at issue” all weigh against application of Noerr. Allied Tube, 486 U.S. at 

499. In the context of a consent decree, the settling parties’ agreement is the 

source of the restraint. And as exemplified by the Actavis decision, such 

agreements settling Hatch-Waxman patent infringement litigation are the type of 

agreements that warrant traditional antitrust scrutiny. Such settlements are, in 

short, “commercial activity with a political impact” not protected by Noerr. 

If defendants were correct that a judge’s signature on a consent decree

confers antitrust immunity on private parties’ anticompetitive agreements, 

companies would gain a new and powerful tool to evade the antitrust laws. 

Litigants would be free to include all manner of anticompetitive agreements in 

their private settlements and shield those unlawful agreements from antitrust 

challenge as long as a judge signs a consent judgment. Such a result would place 

an intolerable burden on district courts to examine and resolve the antitrust 

implications of every settlement deal—almost always in the absence of an 

adversary process. It would also stretch Noerr’s protection of “mere attempts to 

 

as a matter of antitrust law. The FTC’s letter to Wyeth’s counsel made clear that 

the FTC’s decision not to object did not signify that the settlement agreement was 

lawful. See JA 21.

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14

influence the passage or enforcement of laws” beyond recognition. Noerr, 365 

U.S. at 135.

CONCLUSION

For the foregoing reasons, the Court should find that defendants’ challenged 

conduct is not exempt from the antitrust laws under the Noerr-Pennington

doctrine.

Respectfully submitted,

DEBORAH L. FEINSTEIN

Director

MARKUS H. MEIER

Acting Deputy Director

BRADLEY S. ALBERT

Deputy Assistant Director

ELIZABETH R. HILDER

HEATHER JOHNSON

Attorneys

BUREAU OF COMPETITION

FEDERAL TRADE COMMISSION

DAVID C. SHONKA

Acting General Counsel

JOEL MARCUS

Director of Litigation

s/ Michele Arington

MICHELE ARINGTON

Assistant General Counsel

OFFICE OF GENERAL COUNSEL

FEDERAL TRADE COMMISSION

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-3157

March 17, 2016

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Nos. 15-1184, 15-1185, 15-1186, 15-1187, 15-1274, 15-1323, 15-1342

COMBINED CERTIFICATIONS

1. This brief complies with the type-volume limitation set forth in Fed. R. App. 

32 (a)(7)(B), in that it contains 3,374 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and complies with the 

typeface requirements of Fed. R. App. P. 32(a)(5) and the type style 

requirements of Fed. R. App. P. 32(a)(6), because it has been prepared in a 

proportionally spaced typeface using Microsoft Word 2010 in Times New 

Roman 14-point font.

2. I filed the electronic PDF version of this brief with the Court via the 

CM/ECF system. The docket for this proceeding indicates that all 

participants in the case are registered CM/ECF users, and service will be 

accomplished by the CM/ECF system.

3. The text of the electronic PDF version of this brief is identical to the text of 

the paper copies being sent to this Court.

4. I ran a virus check on the electronic version of this brief using used 

Symantec Endpoint Protection version 12.1.6318.6100.105, and it detected 

no virus. 

5. Because this brief is filed on behalf of an administrative agency of the 

United States, there is no bar membership requirement.

March 17, 2016 s/ Michele Arington 

MICHELE ARINGTON

Case: 15-1274 Document: 003112236647 Page: 19 Date Filed: 03/17/2016