Friday, June 6, 2008
Posted by D. Daniel Sokol
As if Intel didn't have enough to worry about in the EU, Korea (where Intel was fined this week by the KFTC for an anti-competitive rebate scheme) and Japan with various monopolization cases, it now faces an FTC investigation. Coming on the heels of the ABA Antitrust Conference of Monopolization Remedies, I echo some thoughts from what I said at that conference:
A. We need to think about remedies from Day 1 of any case
B. Ineffective remedies are worse than inaction or, as Richard Epstein put it in in his paper on which I commented, "less is more." My colleague Bill Page presented an excellent paper on the problems of the Microsoft protocol licensing remedy. My comments on Bill's paper focused on how we need to be particularly cautious in crafting effective remedies when we are dealing with industries centrally involved in innovation.
C. Appropriate institutional arrangements are critical to crafting effective remedies.
Not my thoughts from the conference but ones that I wish I could claim as my own-- Greg Werden's paper for the symposium (forthcoming in the Antitrust Law Journal) was very good. Greg's insights include the following five points.
1. Consider a targeted structural remedy.
2. Do not prohibit competition on the merits.
3. Do not undermine the incentive to compete.
4. Frame all prohibitions in bright-line terms.
5. Do not substitute regulation for competition.