The press release is here. The petition is here. The questions presented, as framed by the Commission are:
1. Whether deceptive conduct that significantly contributes to a defendant’s acquisition of monopoly power violates Section 2 of the Sherman Act.
2. Whether deceptive conduct that distorts the competitive process in a market, with the effect of avoiding the imposition of pricing constraints that would otherwise exist because of that process, is anticompetitive under Section 2 of the Sherman Act.
The FTC also argues that the D.C. Circuit’s decision is “at odds” with the Third Circuit’s analysis in Broadcom which creates a “conflict” on causation issues related to competitive harm which “cuts to the core of the analysis of harm to the competitive process.” Commentary later.
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It’s a curious “conflict”, since the Third Circuit cited the FTC’s pre-D.C. Circuit decision in Rambus as partial justification for its Broadcom opinion. This is really a circuit paradox, not a conflict.