FTC Seeks Cert in Rambus

Josh Wright —  25 November 2008

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.

One response to FTC Seeks Cert in Rambus


    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.