September 30, 2009

European Commission Publicizes Intel Emails In New Tack

Don’t put anything in an email that you wouldn’t want on the front page of the newspaper.  Or in a decision of the European Commission slapping a 1.06 billion Euros fine (approximately $1.5 billion) on your company.

On September 21, 2009, the Commission released a public version of its May 13 decision in which it imposed the record fine on Intel, the world’s largest semiconductor chip manufacturer, for violating EU antitrust law by abusing its dominant position in the market for computer chips known as x86 central processing units (CPUs).

What is most striking about the decision is that it quotes emails by executives of Intel and PC manufacturers, which the Commission contends are powerful evidence of Intel’s culpability.  This is the first time the Commission has publicized such evidence. click here for more »

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Categories: International Competition Issues

    September 23, 2009

    Review Of 1992 Merger Guidelines Is A Once-In-A-Generation Opportunity

    Antitrust practitioners that pass on the upcoming opportunity to comment on revising the 1992 Merger Guidelines will be missing an opportunity that comes once in a generation.

    For 17 years now, the Horizontal Merger Guidelines jointly developed by the U.S. Department of Justice and Federal Trade Commission have been one of a few doctrinal pillars of the faith among antitrust practitioners, most notably with respect to market definition.  Since their promulgation in 1992, the Guidelines have survived two full presidential administrations that were diametrically opposed in their philosophies of merger and unilateral conduct enforcement, a remarkable testament to the Guidelines’ intellectual underpinnings and continuing relevance. 

    On September 22, 2009, the DOJ and FTC announced that they would jointly hold workshops in the coming months for the purpose of evaluating whether to revise the Guidelines and, if so, how.  In her speech to the Third Annual Georgetown Law Global Antitrust Enforcement Symposium, Assistant Attorney General and Head of the DOJ’s Antitrust Division, Christine Varney, stated that the workshops would likely discuss at least three broad topics:  market definition, market concentration, and competitive effects. click here for more »

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    Categories: Antitrust Enforcement

      September 23, 2009

      Will The Microsoft-Yahoo Partnership Result In U.S. v. Microsoft Redux?

      Antitrust enforcers may be seeing a lot of their old friends at Microsoft thanks to the Internet search deal the computer giant has reached with Yahoo!  As Constantine Cannon’s Matt Cantor discusses in his recent article, “Microsoft-Yahoo! ‘Partnership’ Is Anti-Competitive, the deal raises substantial antitrust issues that may doom it.

      It appears that Microsoft and Yahoo!’s proposed “partnership,” which provides for Yahoo! to exit the search business and rely exclusively on Microsoft’s search engine, Bing, will cause the Internet search market – which has indisputably high barriers to entry – to shrink to a duopoly consisting of Bing and Google.  If the DOJ applies traditional antitrust analysis, the deal should be viewed as presumptively anticompetitive, and the partnership will survive the Department’s scrutiny only if one of the legally cognizable antitrust merger defenses can be established. click here for more »

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      Categories: Antitrust Enforcement

        September 23, 2009

        For Antitrust Enforcers, Causation Can Be The Matrix

        “You see there is only one constant.  One universal.  It is the only real truth.  Causality.  Action, reaction.  Cause and effect.”

         – The Merovingian in The Matrix Reloaded

        Characters in science fiction films such as The Matrix series and The Time Traveler’s Wife have struggled with life-or-death issues of causation.  As highlighted by recent decisions of the U.S. Court of Appeals for the District of Columbia, however, issues of causation can be just as fatal to antitrust enforcement.

        Although causation may not be the only real truth, for antirust enforcers it can be the make-or-break issue that determines whether they can maintain an antitrust case against a dominant firm.  While a great deal of attention has rightly been focused on how to correctly identify monopolies and exclusionary conduct, relatively little attention has been given to the legal standard for proving that a firm’s conduct has, in fact, (a) caused the exclusion of rivals, and (b) caused or maintained a monopoly. click here for more »

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        Categories: Antitrust Enforcement

          September 23, 2009

          Justice Sotomayor’s Pivotal Antitrust Decision

          Though Supreme Court Justice Sonia Sotomayor’s nomination hearings made lots of news, the media didn’t spend much time focusing on her antitrust decisions.  But the nation’s newest justice is no stranger to the Sherman Act.

          Constantine Cannon – as Lead Counsel in its groundbreaking debit card litigation – has first-hand experience with Justice Sotomayor’s antitrust jurisprudence.  She authored a pivotal decision that kept the debit card litigation alive and led to the largest federal antitrust settlement in U.S. history.  click here for more »

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          Categories: Antitrust Litigation, Antitrust Policy

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