The Intel Cases - Legal Convergence or Leaps of Faith?

Abstract

Intel found itself in the cross-hairs of both the European Commission and the U.S. FTC at the same time. In the EC, we have a system in which many of the defenses and justifications that apply in the United States (such as the need for the plaintiff to show that any predatory losses were reasonably probable to be recouped later) do not exist. And the Commission has a body of court decisions that would allow it to bring cases almost without regard to their actual economic impact. To its credit, the Commission seems to be trying to get case law that is based more firmly on real effects rather than pure structure.

In the United States, we have the full panoply of defenses to an antitrust charge, so the FTC is trying to use Section 5 of the FTC Act to almost mirror what the Commission can achieve under Article 102, including cutting off the defenses that would be available here if the actions were brought under the Sherman Act.

The point of this approach is simply to note that, while some people may think that letting the FTC go far afield under Section 5 is a benefit because it enables the agency to go after more bad conduct, the fact that it may lead to broader private litigation and to the same agency enforcing two laws in ways where the same conduct is permitted under one but banned under the other, may well outweigh the theoretical benefit of the broader range of action. We may find ourselves with the worst of both worlds — broad, vague case law under Section 5, and the full range of private litigation attempting to collect under that law.

And in Brussels, it may be thought that if we can move the courts to make the law more economically coherent then allowing private suits will not be as much of a problem. But the fact that the courts may leave the older precedents alone, or not move fully into the new realm, may again leave us with the worst of both worlds — formalized structural law and broad private litigation.

Keywords: Comparative Competition Law, European Commissin, Federal Trade Commission, Abuse of Dominance