Thursday, January 7, 2010
Posted by D. Daniel Sokol
So far we have had commentary by:
Tomorrow we have additional contributors:
Part 5. Geoff Manne (Lewis & Clark)
Part 6. Sean Heather (US Chamber)
Part 7. Herb Hovenkamp (Iowa)
I have some thoughts of my own as well. FTC Section 5 can be more expansive than Section 2 of the Sherman Act. The question is should it be in the case of Intel. I think before we answer that question, we go back to something that I raised during the Antitrust Remedies conference at UVA in August 2008. If you do not have a good remedy for the conduct in question, do not bring a case. The FTC seems to be pursuing a case based on a set of misguided assumptions about what the potential result of the case will be and whether it can create an effective remedy. It is not clear to me that it will be pro-consumer. Microsoft is in a much weaker state now not because of any of the antitrust remedies imposed but because unforeseen entrants (Google for example) have been effecvtive in their challenges to Microsoft. Does a successful case against Intel under Section 5 (because I do not see the FTC winning under Section 2) lead to remedies that in itself do not create more problems than they solve?