The Intel Cases”Legal Convergence or Leaps of Faith?

Kent Bernard, Jan 06, 2011

Intel has managed to find itself in the cross-hairs of the antitrust authorities in Brussels and in Washington D.C.It is doubtful if that was a part of its corporate goals at any recent time.

With its decision dated May 13, 2009, the European Commission held that Intel violated what was then Article 82 by abusing its dominant position in a market defined as Central Processing Units (“CPUs”) of the x86 architecture.Intel allegedly did so by offering various kinds of rebates to potential customers for the units, some of whom were the world’s largest computer manufacturers. The Commission fined Intel a record EUROs 1.06 billion.While that case raises many issues, some of which will be discussed below, the basic legal structure is not being touted as something totally new.The Commission claims that, although it is running a new “effects based” analysis using the “as efficient competitor” test, it also is applying its traditional Article 82 legal approach to the facts as found.However, a careful review of what is known to date suggests that the Commission is indeed trying to move in a new direction, and it is a roadway that was paved in U.S. law some 35 years ago.Whether it can get there is up to the courts.Whether it should get there, will be discussed below.

On December 16, 2009 the U.S. Federal Trade Commission (“FTC”), not to be outdone, brought its own action against Intel. The FTC’s administrative complaint charges th

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