Foreign governments and now the EU in Europe have long used their laws to help their own businesses and thwart U.S. businesses. The U.S. has not. Thus, we evolve an anti-trust law that tends to look at harm to consumers. Thus, the allowing of volume discounts. With a different goal, it is not surprising that the EU is moving in a different direction. I think intel thought they were legit but the message to intel is that they are not. The rules are either changing or becoming clearer.
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.
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."
FPG, > Not exactly confidence-building for Intel is that apparently their only defense is to try to restrict the way the court interprets Intel's transactions.
So what? AMD wants the court and any other authority on Earth to expand interpretation of antitrust concepts to the point where anything pricing action done by Intel would be "anticompetitive" and therefore "illegal."
By the way, it's been 21 days since Neelie the Terrible promised to release the 500 page report. Still nothing. Does the EU have too much to hide?
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