August 10, 2021

Alicia Batts and Dylan Carson Talk to Global Competition Review About Recent FTC Petition

Global Competition Review reported that the Federal Trade Commission (FTC) filed a petition in the U.S. Court of Appeals for the Second Circuit to rehear the 1-800 Contacts case, arguing that the Second Circuit’s decision in 1-800 Contacts risks giving “de facto antitrust immunity” to anticompetitive trademark settlements. The publication turned to antitrust partners Alicia Batts and Dylan Carson to provide insight on the matter in the article “FTC asks Second Circuit to revisit 1-800 Contacts ruling.”

Batts shared that she thought the commission’s petition on Friday was necessary as a matter of agency policy, especially because the Democratic majority is seeking to define the FTC Act as covering a wider scope of conduct than the Sherman Act covers.

“The FTC has to try to maintain its authority in the marketplace — in particular, the Big Tech area,” said Batts. She added that even if the Second Circuit denies the FTC’s request for a rehearing, the petition will help the agency better advocate for itself before the Supreme Court.

Batts and Carson highlighted that the FTC likely saw the need to protect its administrative turf on this matter. “The FTC has a strong interest in defending the standard in which courts review its decisions,” said Carson.

Batts and Carson also mentioned that it’s possible defense lawyers are eager to use the 1-800 Contacts decision to undermine the tribunal’s factual findings during federal appellate reviews of the agency’s cases.

Carson lastly noted that the FTC’s chances of getting a rehearing is unlikely, explaining that the Second Circuit is one of the stingiest federal appellate courts in the US with respect to granting requests for en banc review.

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