Relaxing whilst doing Competition Law is not an Oxymoron

Archive for December 17th, 2009

FTC sues Intel

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Yesterday, practically coinciding with the European Commission’s announcement of the end of the infringement proceedings against Microsoft, the FTC decided to sue Intel.

The FCT charges Intel with a violation of the Sherman Act as well as with a stand-alone violation of Section 5 of the FTC Act, which targets ‘unfair methods of competition’.  Chairman Leibowitz and Commissioner Rosh have issued a statement which deals primarily with the second alleged violation, and which is particularly interesting in as much as it foreshadows a possible new trend in antitrust enforcement by US agencies.

In essence, the statement proposes to consider an increased use of Section 5 of the FTC Act  in order to avoid the implications of perceived private over-enforcement under the Sherman Act:

‘[C]oncern over class actions, treble damages awards, and costly jury trials have caused many courts in recent decades to limit the reach of antitrust. The result has been that some conduct harmful to consumers may be given a ‘free pass’ under antitrust jurisprudence, not because the conduct is benign but out of a fear that the harm might be outweighed by the collateral consequences created by private enforcement. For this reason, we have seen an interesting amount of potentially anticompetitive conduct that is not easily reached under the antitrust laws, and it is more important than ever that the Commission actively consider whether it may be appropriate to exercise its full Congressional authority under Section 5′.

Written by Alfonso Lamadrid

17 December 2009 at 10:26 am