sue a major player under Section 2 or Section 5 in the high-tech sector. The flipside to this, of course, is that in an effort to avoid drawn out litigation and remedies that come too late, the agencies run a serious risk of doing quick and dirty investigations or accepting less than optimal settlements because litigation simply takes too long. The Commission’s settlement in Intel—which Chairman Leibowitz explicitly noted was an attempt to avoid drawn out litigation[1]—has been criticized on this ground.
These problems, however, are not insurmountable. In fact, while I know we are not without our critics, I think the Commission’s experiences in Google/DoubleClick and Google/AdMob show that we can change on the fly. In the former, over an objection from Commissioner Harbour, the Commission declined to challenge a merger because the majority of the Commission could not find a reason to believe that the merger of the leading provider of sponsored search advertising (Google) and the leading firm in the United States serving third-party ad markets (DoubleClick) would be anticompetitive.[2] In the latter case, the Commission unanimously closed its investigation after it became clear that Apple was in a position to (and likely would) nullify any anticompetitive
- ↑ FTC News Release, FTC Settles Charges of Anticompetitive Conduct Against Intel (Aug. 4, 2010), available at http://www.ftc.gov/opa/2010/08/intel.shtm (“By accepting this settlement, we open the door to competition today and address Intel’s anticompetitive conduct in a way that may not have been available in a final judgment years from now. Everyone, including Intel, gets a greater degree of certainty about the rules of the road going forward, which allows all the companies in this dynamic industry to move ahead and build better, more innovative products.”).
- ↑ Statement of the Federal Trade Comm’n concerning Google/DoubleClick, FTC File No. 071-0170 (Dec. 20, 2007), available at http://www.ftc.gov/os/caselist/0710170/071220statement.pdf.
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