By Justus Baron & Pierre Larouche

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. While the court ultimately did not rule on this point, the U.S. Department of Justice 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. Nevertheless, a balanced membership composition is not the only way for SDOs to achieve such a balance of interests.