Intel Corp (INTC)

[Windsock]

One of the things that you might try to remember is that Brooke is a decision of the Supreme Court, the highest court in the United States. So the Brooke rule really is "set in stone" until such time as the Supreme Court decides to overrule or modify the decision.

When trying to understand the law, it is always a good idea to pay serious attention to Supreme Court decisions that are directly on point. Once you do this you can understand that the Brooke Rule totally kills all of AMD's antitrust claims. The Intel brief accurately and concisely describes the legal principle of Brooke.

http://download.intel.com/pressroom/legal/1443_Opening%20Brief%20in%20Support%20re%201442%20Motion_Intel.pdf

Legal Principal I However Articulated, All Claims That Intel Took Business From AMD By Making Price Concessions Must Fail As A Matter Of Law If Intel's Prices Exceeded Its Costs

A. In Brooke Group And Subsequent Decisions, The Supreme Court Has Firmly Entrenched The Bright Line Principle That above-Cost Price Cutting Is Per Se Legal, Regardless Of The Form It Takes, And Regardless Of The Impact It May Have On A Rival

B. The Brooke Group Safe Harbor Applies Whenever The Average Price For All Goods Sold Exceeds Their Average Cost, And Permits No Different Analysis Where A Plaintiff Claims That Some Portion Is "Uncontestable."