Presentation on theme: "Antitrust Challenges to Alleged Unilateral Abuses of Standard-Setting Processes M. Sean Royall Gibson, Dunn & Crutcher LLP Legal Questions Awaiting Answers."— Presentation transcript:
Antitrust Challenges to Alleged Unilateral Abuses of Standard-Setting Processes M. Sean Royall Gibson, Dunn & Crutcher LLP Legal Questions Awaiting Answers
The Law Is Unresolved oThere are no prior antitrust decisions directly on point oThe FTC’s Dell consent order offers limited guidance oPatent and common-law decisions are not determinative oThe Rambus and Unocal cases have the potential to create significant new law
Two Key Issues oWhat constitutes “exclusionary” conduct in this context? oWhat is required to prove causation?
Exclusionary Conduct oIs “deceptive” conduct exclusionary? oIs it enough that the SSO’s rules were violated? oWhat if the conduct “subverts” but does not violate the rules? oAre there legitimate business justifications for non-disclosure? oMust the conduct involve a sacrifice of short-term profits?
Causation oNot entirely separate from exclusionary conduct inquiry oHow does one define the proper “but for” world? oWhat level of precision is required in proving causation? oIs the government entitled to the benefit of the doubt?