Activities: Amicus Program

AAI’s amicus program is an important component of its advocacy work.  The purpose of AAI’s amicus program is to positively influence the development of competition law in the courts and to advance the interests of consumers.  As a general rule, we focus on legal issues that may have widespread impact and we seek to provide the courts with a unique perspective, focus, or analysis beyond that provided by the parties in a case. 

We have filed more than 60 amicus briefs since 2001. Recently, we have had several successes in helping to persuade federal courts of appeals to reverse their original decisions.

In Minn-Chem v. Agrium, a three-judge panel of the Seventh Circuit upheld the dismissal of a class action complaint alleging that an international cartel in the potash industry had increased the price of U.S. imports. We filed an amicus brief in support of the plaintiffs’ petition for rehearing en banc on the proper interpretation of the Foreign Trade Antitrust Improvement Act of 1982. On December 2, 2011, the Seventh Circuit granted the petition, vacated the panel decision, and scheduled oral argument for February 2012.

In Brantley v. NBC Universal, a three-judge panel of the Ninth Circuit upheld the dismissal of a class action complaint challenging the practice by cable programmers to bundle their basic networks and prevent distributors from offering those channels to consumers on an a la carte basis. We filed an amicus brief in support of plaintiffs’ petition for rehearing en banc on whether a vertical agreement had to exclude competitors in order to be unlawful.  On October 31, 2011, the panel itself withdrew its opinion, and subsequently issued another opinion affirming the dismissal, but recognizing a broader range of circumstances in which vertical agreements may harm competition.  

In Sullivan v. DeBeers Investments, a three-judge panel of the Third Circuit reversed the district court’s approval of a settlement and class certification in a case involving an international price fixing cartel. We filed an amicus brief in support of the plaintiffs’ petition for rehearing en banc on the standards for certifying a class action for settlement purposes. The en banc court reversed the panel, largely adopting the standards we advocated.

In Shames v. Cal. Travel & Tourism Comm’n, a three-judge panel of the Ninth Circuit upheld the dismissal of a complaint alleging price fixing of rental car fees. We filed an amicus brief in support of plaintiffs’ petition for rehearing on the proper scope of the state action defense. Thereafter, in November 2010, the panel withdrew its opinion and substituted a new opinion that reversed the district court and followed our position.

We were also recently successful in helping to persuade the Seventh Circuit to reverse the district court’s adoption of an unduly restrictive standard for assessing predominance for purposes of class certification in a hospital merger case, Messner v. North Shore University Health System (January 2012).

Prior to this string of victories we were successful in American Needle, Inc. v. The National Football League (May 2010), in which the Supreme Court not only adopted the position we advocated, but our analysis of how a “single entity” determination should be made. In the 2008-09 term of the Supreme Court, AAI participated in the oral argument in Pacific Bell v. linkLine, a rare honor for a non-profit amicus curiae. We have also had success in numerous other cases in the federal appeals courts and state supreme courts, including FTC v. Whole Foods Market, Inc. (merger standards), Broadcom v. Qualcomm (abuse of standard setting), In re American Express Merchants Litigation (enforceability of class action waivers in arbitration), Lorix v. Crompton (indirect purchaser standing under Minnesota law), Bunker’s Glass v. Pilkington (indirect purchaser standing under Arizona law), and In re Cardizem CD Antitrust Litigation (reverse payments in drug patent settlements).
 

We are appreciative of the many significant voluntary contributions made by members of the Advisory Board and others in producing top-quality legal briefs.  Operational Guidelines for the AAI's Amicus Program are available here.