Intel Settlement Watch Part II
While Intel Corporation nears its settlement deadline with the Federal Trade Commission, it received good news from a federal district court in Delaware evaluating the evidence of alleged consumer harm from the discounts Intel offers to buyers. It is also very important to note that this pass from a US court applying standards of consumer harm embedded in US Section 2 case law — that is, actual harm to consumers and the competitive process rather than allowing harm to competitors to serve as a sufficient condition for proof of the former — is the first to evaluate the consumer welfare effects of Intel’s conduct from this more rigorous perspective. One has to wonder whether this ruling will shift settlement negotiations in favor of Intel. Its true that the FTC can use Section 5 to evade this Section 2 competitive effects analysis. But not without eventually testing their interpretation of Section 5 in front of a panel at the D.C. Circuit.