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

___________________________________________________ 

MOTION OF FEDERAL TRADE COMMISSION TO FILE 

SUPPLEMENTAL BRIEF OF AMICUS CURIAE 

SUPPORTING PLAINTIFFS-APPELLANTS 

___________________________________________________ 

Pursuant to Federal Rule of Appellate Procedure 29(f), the Federal Trade 

Commission (FTC) respectfully submits this motion to file a supplemental amicus 

curiae brief. The proposed brief addresses an issue that was not raised in the 

opinion below but is presented in defendants-appellees’ briefs as an alternative 

ground for affirmance. The FTC’s proposed amicus brief is being submitted 

simultaneously with this motion and is timely filed within the schedule for 

plaintiffs-appellants’ reply briefs.1

 

On November 17, 2015, the FTC filed an amicus curiae brief supporting 

plaintiffs-appellants. That brief was limited to the question whether the district 

                                                            

1

 Plaintiffs do not oppose the FTC’s submission of a supplemental amicus brief, 

but defendants have indicated that they intend to oppose it. 

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2

court erred when it treated Wyeth’s submission to the FTC of its proposed 

settlement with Teva, and the FTC’s decision not to object, as a valid antitrust 

justification for an allegedly anticompetitive reverse-payment settlement. In their 

February 16, 2016, responding briefs, defendants-appellees made an argument not 

addressed by the district court: that their settlement agreement is exempt from 

antitrust scrutiny under the Noerr-Pennington (“Noerr”) doctrine. Because the 

district court’s opinion made no mention of the Noerr doctrine, the FTC’s earlier 

amicus brief did not discuss the issue that defendants now ask this Court to decide. 

As one of the primary government agencies charged with enforcement of the 

federal antitrust laws, the FTC has a strong interest in the proper application of the 

Noerr antitrust exemption. For more than twenty-five years, the agency has helped 

to shape the law and policy contours of the Noerr doctrine.2

 

Defendants’ arguments about the scope of the Noerr doctrine have 

implications beyond the confines of this case. As a result, it is particularly 

                                                            

2 See, e.g., FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 424-26 

(1990); In the Matter of Union Oil Co., 138 F.T.C. 1, 17-78 (2004); Brief of the 

United States and the Federal Trade Commission, Indian Head, Inc. v. Allied Tube 

& Conduit Corp., Nos. 86-7734, 86-7758 (2d Cir. Oct. 24, 1986); Memorandum of 

Law of Amicus Curiae the Federal Trade Commission in Opposition to 

Defendant’s Motion to Dismiss, In re Buspirone Antitrust Litigation, MDL Dkt. 

No. 1410 (S.D.N. Y. Jan. 8. 2002); FTC Staff Report, Enforcement Perspectives on 

the Noerr-Pennington Doctrine (2006), 

https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staffreport-concerning-enforcement-perspectives-noerr-penningtondoctrine/p013518enfperspectnoerr-penningtondoctrine.pdf. 

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important that the Court have the views not only of the parties, whose interests 

may be confined to the specific controversy at hand, but also of the federal antitrust 

enforcer, with an economy-wide perspective and a significant stake in the proper 

application of Noerr.

3

 

For the foregoing reasons, the FTC respectfully seeks leave to file a short 

supplemental brief to address defendants’ Noerr argument.

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 

                                                            

3

 The combined word count of the FTC’s initial amicus brief and the proffered 

supplemental brief is under the 7,000 words permitted for amicus briefs. 

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CERTIFICATE OF SERVICE 

I filed the electronic PDF version of this motion 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.

 

March 17, 2016 s/ Michele Arington 

Michele Arington 

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