IP/Internet/Antitrust Professor Amicus Brief in 1-800 Contacts v. FTC

Prof. Mark Lemley (Stanford Law) and I filed an amicus brief in 1-800 Contacts v. FTC with the Second Circuit on behalf of 29 professors of intellectual property, Internet law, and antitrust. The abstract:

The case involves 1-800 Contacts’ settlement agreements with its online competitors in which they agreed not to bid on each other’s trademarks as keywords for search engine advertising. The FTC held that 1-800 Contacts’ conduct violated antitrust law.

The brief makes two main points. First, the brief shows how game theory explains 1-800 Contacts’ use of settlement agreements for anticompetitive purposes. Second, the brief explains how trademark law provided only pretextual justification for 1-800 Contacts’ settlement campaign.

I particularly think the game theory piece adds an interesting analytical tool to the conversation. I don’t recall seeing a similar analysis before.

Personal note: this is my first time co-authoring with Mark, one of the giants in our field. It’s a great honor for me.

MediaPost coverage of the amicus brief filing.

1-800 Contacts v. FTC Case Library: The FTC maintains a page with public filings in this case. Here’s a selected library of materials (including some not on the FTC page):

* Second Circuit Appeal. 1-800 Contacts’ appellant brief. Amicus briefs from AIPLA, USCIB, WLF/Academics. FTC Answering Brief. Amicus brief from IP/Internet/Antitrust professors.

* FTC opinions: majority by Commissioner Simonsconcurrence by Commissioner Slaughterdissent by Commissioner PhillipsFinal order. Blog post: Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts

ALJ opinion. Blog post: Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions.

* Some expert reports and related material: Howard HoganDr. William LandesRebecca Tushnet’s rebuttal reportProf. Rebecca Tushnet SlidesDr. Evans’ SlidesDr. Susan Athey’s slides (see the exhibit).

* Respondent’s Second Corrected Pretrial BriefBlog post: 1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts

Complaint Counsel’s Corrected Pre-Trial Brief and Exhibits. Blog post: FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts

FTC Complaint from Aug. 2016. Blog post: FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising

More Posts About Keyword Advertising:

* New Jersey Attorney Ethics Opinion Blesses Competitive Keyword Advertising (…or Does It?)
Another Competitive Keyword Advertising Lawsuit Fails–Dr. Greenberg v. Perfect Body Image
The Florida Bar Regulates, But Doesn’t Ban, Competitive Keyword Ads
Rounding Up Three Recent Keyword Advertising Cases–Comphy v. Amazon & More
Do Adjacent Organic Search Results Constitute Trademark Infringement? Of Course Not…But…–America CAN! v. CDF
The Ongoing Saga of the Florida Bar’s Angst About Competitive Keyword Advertising
Your Periodic Reminder That Keyword Ad Lawsuits Are Stupid–Passport Health v. Avance
Restricting Competitive Keyword Ads Is Anti-Competitive–FTC v. 1-800 Contacts
Another Failed Trademark Suit Over Competitive Keyword Advertising–JIVE v. Wine Racks America
Negative Keywords Help Defeat Preliminary Injunction–DealDash v. ContextLogic
The Florida Bar and Competitive Keyword Advertising: A Tragicomedy (in 3 Parts)
Another Court Says Competitive Keyword Advertising Doesn’t Cause Confusion
Competitive Keyword Advertising Doesn’t Show Bad Intent–ONEpul v. BagSpot
Brief Roundup of Three Keyword Advertising Lawsuit Developments
Interesting Tidbits From FTC’s Antitrust Win Against 1-800 Contacts’ Keyword Ad Restrictions
1-800 Contacts Charges Higher Prices Than Its Online Competitors, But They Are OK With That–FTC v. 1-800 Contacts
FTC Explains Why It Thinks 1-800 Contacts’ Keyword Ad Settlements Were Anti-Competitive–FTC v. 1-800 Contacts
Amazon Defeats Lawsuit Over Its Keyword Ad Purchases–Lasoff v. Amazon
More Evidence Why Keyword Advertising Litigation Is Waning
Court Dumps Crappy Trademark & Keyword Ad Case–ONEPul v. BagSpot
AdWords Buys Using Geographic Terms Support Personal Jurisdiction–Rilley v. MoneyMutual
FTC Sues 1-800 Contacts For Restricting Competitive Keyword Advertising
Competitive Keyword Advertising Lawsuit Will Go To A Jury–Edible Arrangements v. Provide Commerce
Texas Ethics Opinion Approves Competitive Keyword Ads By Lawyers
Court Beats Down Another Competitive Keyword Advertising Lawsuit–Beast Sports v. BPI
Another Murky Opinion on Lawyers Buying Keyword Ads on Other Lawyers’ Names–In re Naert
Keyword Ad Lawsuit Isn’t Covered By California’s Anti-SLAPP Law
Confusion From Competitive Keyword Advertising? Fuhgeddaboudit
Competitive Keyword Advertising Permitted As Nominative Use–ElitePay Global v. CardPaymentOptions
Google And Yahoo Defeat Last Remaining Lawsuit Over Competitive Keyword Advertising
Mixed Ruling in Competitive Keyword Advertising Case–Goldline v. Regal
Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC
Damages from Competitive Keyword Advertising Are “Vanishingly Small”
More Defendants Win Keyword Advertising Lawsuits
Another Keyword Advertising Lawsuit Fails Badly
Duplicitous Competitive Keyword Advertising Lawsuits–Fareportal v. LBF (& Vice-Versa)
Trademark Owners Just Can’t Win Keyword Advertising Cases–EarthCam v. OxBlue
Want To Know Amazon’s Confidential Settlement Terms For A Keyword Advertising Lawsuit? Merry Christmas!
Florida Allows Competitive Keyword Advertising By Lawyers
Another Keyword Advertising Lawsuit Unceremoniously Dismissed–Infostream v. Avid
Another Keyword Advertising Lawsuit Fails–Allied Interstate v. Kimmel & Silverman
More Evidence That Competitive Keyword Advertising Benefits Trademark Owners
Suing Over Keyword Advertising Is A Bad Business Decision For Trademark Owners
Florida Proposes to Ban Competitive Keyword Advertising by Lawyers
More Confirmation That Google Has Won the AdWords Trademark Battles Worldwide
Google’s Search Suggestions Don’t Violate Wisconsin Publicity Rights Law
Amazon’s Merchandising of Its Search Results Doesn’t Violate Trademark Law
Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights
With Its Australian Court Victory, Google Moves Closer to Legitimizing Keyword Advertising Globally
Yet Another Ruling That Competitive Keyword Ad Lawsuits Are Stupid–Louisiana Pacific v. James Hardie
Another Google AdWords Advertiser Defeats Trademark Infringement Lawsuit
With Rosetta Stone Settlement, Google Gets Closer to Legitimizing Billions of AdWords Revenue
Google Defeats Trademark Challenge to Its AdWords Service
Newly Released Consumer Survey Indicates that Legal Concerns About Competitive Keyword Advertising Are Overblown