By Roger Parloff
October 19, 2006

Among the interesting reader responses to my earlier entry concerning the recent ruling in AMD’s antimonopolization case against Intel was one from an expert in the field. I thought I’d highlight excerpts here, although you can read his entire post there.

The commenter is Jonathan Rubin, Senior Research Fellow at the American Antitrust Institute in Washington, D.C. The AAI describes its members as “post-Chicago centrists dedicated to the vigorous use of antitrust as a vital component of national and international competition policy.” I.e., the AAI tends to fall on the pro-antitrust enforcement side of the political spectrum, as opposed to those who are more fearful of government intervention and more trusting in the power of markets to right themselves. Full disclosure: Among the long list of contributors to AAI is AMD itself. The head of AAI tells me that he does not believe any contributor accounts for more than 5 percent of the organization’s funding. Here are excerpts from Mr. Rubin’s comment:

“I am following the AMD v. Intel litigation for what the case may ultimately signify for antitrust policy. Unfortunately, as often happens when the news media report on such arcane matters the public can get the wrong message. . . . As the blog entry correctly points out, the judge’s ruling means only that the ‘U.S. court [in Delaware]ha[s] no subject matter jurisdiction over portions of AMD’s complaint.’ Where the news media have gone wrong, in my view, is by reporting this ruling as reflecting poorly on the merits of AMD’s case, or at least a substantial portion of it.

“For example, Reuters reported that the judge had dismissed ‘a large portion’ of AMD’s case. called the ruling a ‘significant setback.’ The AP said the judge dismissed a ‘key component’ of AMD’s case. And, while your blog entry is for the most part quite accurate you nonetheless raise the specter that because of this ruling ‘AMD may not even be able to prove its case at all.’

“It is possible for a single preliminary procedural ruling to sink a lawsuit, but that is clearly not the case here. The court’s recent ruling has little to do with the merits of AMD’s claims against Intel, anything that AMD ‘failed to prove,’ or even AMD’s country of residence, as the titular question of your post suggests (‘Is AMD an American company?’). Raising the prospect of a faltering case on the basis of this interim ruling is not justified.

“Judge Farnan found that the [1982 law] deprived the court of jurisdiction over certain of AMD’s independent, stand-alone foreign antitrust claims. Doing so does not disparage any of AMD’s antitrust claims, foreign or domestic. . . .

“Two further issues arise. . . . The first is whether, when the relevant market . . . is global, the judge’s interpretation of the [1982 law] is correct. . . . There was in the early-1980’s significantly less interconnectedness than in the years since that have witnessed tremendous globalization. . . . It is not at all clear how the international legal regime should handle the issues of duplication and overlap that arise when the relevant antitrust market exceeds jurisdictional and political boundaries. There is no facile answer. . . .

“The second issue apparently is being raised by Intel, which argues that the court’s . . . ruling means that AMD will not be able to avail itself of foreign discovery. In my view, the court is unlikely to so constrain AMD. If the domestic claims not affected by the ruling require international discovery, the . . . ruling provides no legal basis for denying it . . .”

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