Monday, June 5, 2006
Professor Cass of Boston University School of Law has an interesting editorial in The Wall Street Journal of Monday, June 5, 2006. His target is the filing of a complaint by Adobe before the European Commission in Brussels, accusing Microsoft of anti-competitive acts such as illegal bundling. The editorial, essentially, characterizes Adobe's complaint as yet another use of competition law to target competitors as a tactical move in a business dispute. Professor Cass concludes:
"Narrowly circumscribed antitrust law can promote competition through rules and procedures that reward business acumen.....But when businesses can import government muscle from any friendly forum to use against competitors, bypassing the legal regime that seems best to govern those businesses, competition and consumers suffer--along with our economies and respect for the rule of law."
Professor Cass makes some interesting points, but he seems to conflate two things: antitrust law that may be substantively questionable and, what can be described as, procedural gamesmanship in using antitrust suits in an anti-competitive way. The two, of course, are related, but the charge that Adobe is "bypassing the legal regime tht seems best to govern these businesses" arguably privileges the US forum over the EC. Both Adobe and Microsoft do substantial business in Europe; it is not clear why the EC does not also "govern those businesses." Perhaps, there is some forum shopping going on, and that there is a need for harmonization. Perhaps, there is a case to be made that US antitrust law is more correct than EC competition law (I am somewhat agnostic on this point). But to characterize Adobe's actions as "antitrust tourism" undermining the rule of law and respective economies overstates the case.