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Antitrust Challenges to Alleged Unilateral Abuses of Standard-Setting Processes

Antitrust Challenges to Alleged Unilateral Abuses of Standard-Setting Processes. Legal Questions Awaiting Answers. M. Sean Royall Gibson, Dunn & Crutcher LLP. The Law Is Unresolved. There are no prior antitrust decisions directly on point

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Antitrust Challenges to Alleged Unilateral Abuses of Standard-Setting Processes

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  1. Antitrust Challenges to AllegedUnilateral Abusesof Standard-Setting Processes Legal Questions Awaiting Answers M. Sean RoyallGibson, Dunn & Crutcher LLP

  2. The Law Is Unresolved • There are no prior antitrust decisions directly on point • The FTC’s Dell consent order offers limited guidance • Patent and common-law decisions are not determinative • The Rambus and Unocal cases have the potential to create significant new law

  3. Two Key Issues • What constitutes “exclusionary” conduct in this context? • What is required to prove causation?

  4. Exclusionary Conduct • Is “deceptive” conduct exclusionary? • Is it enough that the SSO’s rules were violated? • What if the conduct “subverts” but does not violate the rules? • Are there legitimate business justifications for non-disclosure? • Must the conduct involve a sacrifice of short-term profits?

  5. Causation • Not entirely separate from exclusionary conduct inquiry • How does one define the proper “but for” world? • What level of precision is required in proving causation? • Is the government entitled to the benefit of the doubt?

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