Antitrust and Balance of Interests in Standards Development – Lessons from NSS Labs. v. Symantec

CPI Antitrust Chronicle, September 2019

15 Pages Posted: 17 Oct 2019

Date Written: October 7, 2019

Abstract

The recent decision of the District Court of the Northern District of California, in NSS Labs. v. Symantec sheds light on the requirement that Standard Development Organizations (SDO) achieve a balance of interests in their procedures. Whilst the court ultimately did not rule on this point, the U.S. Department of Justice (DOJ) intervened in the case to insist – correctly in our view – that SDOs must meet that requirement in order to benefit from protection against antitrust liability under the Standard Development Organization Advancement Act (SDOAA). We argue that a balance of interests in standardization procedures is essential not only under the SDOAA, but also for the application of antitrust to SDOs more generally. Furthermore, this requirement is distinct from and additional to other antitrust considerations, such as absence of dominance, collusion, or manipulation of standardization processes. Nevertheless, a balanced membership composition is not the only way for SDOs to achieve such a balance of interests.

Note: An abridged version of this paper was published in CPI Antitrust Chronicle.

Keywords: Standards development, balance of interests, antitrust, SDOAA

JEL Classification: K21, L44

Suggested Citation

Baron, Justus and Larouche, Pierre, Antitrust and Balance of Interests in Standards Development – Lessons from NSS Labs. v. Symantec (October 7, 2019). CPI Antitrust Chronicle, September 2019 . Available at SSRN: https://ssrn.com/abstract=3466086 or http://dx.doi.org/10.2139/ssrn.3466086

Justus Baron (Contact Author)

Northwestern University - Searle Center for Law, Regulation and Economic Growth ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

HOME PAGE: http://justusbaron.org/

Pierre Larouche

Université de Montréal ( email )

Montreal, Quebec H3T 1B9
Canada

Center on Regulation in Europe (CERRE) ( email )

Rue de l'Industrie 42
Brussels, 1040
Belgium

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