Robert Lande, Feb 28, 2010
Much of the Federal Trade Commission’s (“FTC’s”) Complaint against Intel is identical or similar to charges in cases filed by the European Commission and by others, which dealt only with CPU chips.These allegations, if supported by the evidence, involve anticompetitive conduct that significantly harmed consumers worldwide. This Intel behavior should be found to violate Section 2 of the Sherman Act, and should cause the corporation to be subject to an injunction and treble damages liability. If all the FTC had done was to echo these CPU chip-centered lawsuits, its filing would have been in the public interest.But it probably would not have been the subject of this symposium. The Commission, however, added significant issues to the mix.
First, the FTC alleged similar exclusionary conduct involving another important relevant chip market, the market for graphic processing (“GPU”) chips. These are extremely important allegations.The affected GPU chip market is huge and growing in importance. If Intel has been employing exclusionary tactics identical or similar to the tactics it has been charged with implementing in the CPU chip market, an FTC case only involving the GPU market would have been one of the most important antitrust cases filed during 2009.If Intel used the same or similar techniques in the GPU market, this conduct also should be found to violate the Sherman Act.
The FTC also charged anticompetitive conduct that goes beyond Sherman Act violations. The Commission charged conduct that violates Section 5 of the FTC Act, but does not necessarily violate the Sherman Act’s “pure” or “stand alone” Section 5 allegations.
