Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/14

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repeat them here,[1] though I will add a few additional ingredients that I think have particular bearing in the high-tech context.

First, when we are challenging a conduct or practice, I believe the story should be consisted with “settled” Sherman Act law. That may seem obvious, but let me explain why. If we are proceeding under a Section 1 or Section 2 theory (even though, at the FTC, we only have authority to sue under Section 5 of the FTC Act), of course our theory must follow from existing law or at least propose to nudge it, as we have done with the “inherently suspect” cases,[2] in a logical direction forward. Saying that our cases must comport with “settled” law, however, is a pretty low bar because especially when it comes to the cutting edge issues we are apt to litigate (as opposed to get a quick settlement out of), there is very little that is “settled” under conventional case law. The Brooke Group decision, for example, (while adding some clarity)[3] leaves open the standard for “below-cost pricing”; and the Court’s linkLine decision[4] left open the question whether a “price squeeze” violates Section 2 where there is unregulated predatory pricing. As for the federal appellate courts, as I’ve elsewhere remarked, the same conduct may be illegal under the Sherman Act, depending on where it is analyzed (as illustrated by the Ninth Circuit’s decision in PeaceHealth[5] and the Third Circuit’s

  1. ↑ Commissioner J. Thomas Rosch, Can Antitrust Skills Really Be Mastered? Tales Out of School About How to Try (or Not to Try) an Antitrust Case, Remarks presented at the ABA Antitrust Section Masters Course (Sept. 30, 2010), available at http://www.ftc.gov/speeches/rosch/100930roschmasterscourseremarks.pdf.
  2. ↑ Polygram Holding, Inc. v. FTC, 416 F.3d 29 (D.C. Cir. 2005). See also N. Tex. Specialty Physicians v. FTC, 528 F.3d 346, 370 (5th Cir. 2008).
  3. ↑ Brooke Grp. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993).
  4. ↑ Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 129 S.Ct. 1109 (2009).
  5. ↑ Cascade Health Solutions v. PeaceHealth, 502 F.3d 895 (9th Cir. 2007).

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