FTC-DOJ Continued
A couple of days ago, I posted the FTC’s Supplemental brief in Schering-Plough. SCOTUSblog has closely examined the brief and reports that:
the FTC, perhaps fearing that the Solicitor General has done enough to persuade the Court to decliine to review the Commission appeal, dropped into its brief a foonote suggesting that the case might be put on hold. It noted that the Second Circuit Court, in a case that largely followed the Eleventh Circuit’s lead on the antitrust issue, has a petition for rehearing pending. That is the case of Taxmoxifen Citrate Antitrust Litigation (Second Circuit docket 03-7641). There could be an appeal to the Supreme Court in the offing in that case, the FTC said, so “the Court may wish to hold the present case pending final resolution of that case.” It make that suggestion after conceding in its brief that “it is always possible for an issue dividing the lower courts to become more clearly defined through further litigation.”
Very interesting.
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