November 5, 2009

Cuomo Files Federal Antitrust Lawsuit Against Intel
By ASHLEE VANCE
NY Times

http://www.nytimes.com/2009/11/05/technology/companies/05chip.html?_r=1&partner=rss&exprod=cnetAd&pagewanted=print


Following the lead of foreign regulators, New York’s attorney general, 
Andrew M. Cuomo, filed a federal antitrust lawsuit Wednesday against 
Intel, the world’s largest chip maker.

The lawsuit charges that Intel violated state and federal laws by 
abusing its dominant position in the chip market to keep its main rival, 
Advanced Micro Devices, at bay. Intel has faced similar lawsuits in Asia 
and Europe, and in May the European Commission fined the company a 
record $1.45 billion for antitrust violations.

These cases have largely revolved around deals Intel had struck with 
computer makers and retailers that, regulators said, pressured them into 
picking the company’s microprocessors — which serve as the central chip 
inside personal computers and servers — instead of competing products 
from A.M.D.

“Rather than compete fairly, Intel used bribery and coercion to maintain 
a stranglehold on the market,” Mr. Cuomo said in a statement. “Intel’s 
actions not only unfairly restricted potential competitors, but also 
hurt average consumers who were robbed of better products and lower prices.”

Intel has denied the charges and has filed an appeal against the 
European Commission’s ruling.

The New York attorney general’s suit is the first formal antitrust 
action against Intel by any government agency in the United States in 
more than a decade. The Federal Trade Commission has been investigating 
Intel since 2008, but has not begun formal proceedings against the company.

Intel, based in Santa Clara, Calif., also faces a four-year-old 
antitrust lawsuit filed by A.M.D. in Delaware. That suit is scheduled to 
go to trial in late March.

An Intel spokesman, Chuck Mulloy, said the company will contest the New 
York suit. “Neither consumers, who have consistently benefitted from 
lower prices and increased innovation, nor justice are being served by 
the decision to file a case now,” he said. “Intel will defend 
itself.”Intel shares were up about 1 percent, to $18.68, in midday 
trading Wednesday.

The New York move increases the chances that the F.T.C. will take action 
against Intel, according to a person who was familiar with the state’s 
investigation but was not authorized to discuss it. Mr. Cuomo’s staff, 
this person said, regularly communicates and cooperates with the 
commission’s staff.

"These are separate investigations, but it would be very surprising for 
New York State to go off on its own without being fairly confident the 
F.T.C. would pursue Intel as well," the person said.

At a news conference announcing the lawsuit, Mr. Cuomo said, “We have 
been cooperating with the F.T.C. We have a good, productive dialogue on 
this matter.”

A spokeswoman for the trade commission, Claudia Bourne Farrell, would 
not comment beyond saying that the commission’s investigation was 
continuing.

Intel and Microsoft have long been the personal computer industry’s two 
most dominant players. About 90 percent of all PCs rely on Microsoft’s 
Windows software, while Intel’s chips go into about 80 percent of the 
PCs and computer servers sold every year.

Both companies have caught the attention of antitrust regulators in the 
past, although Microsoft’s legal battles have been far more 
confrontational and enduring.

In 1993, the F.T.C. dropped a two-year investigation into Intel’s 
business practices, saying it lacked evidence to back a lawsuit, and the 
agency ended a second investigation in 2000. In 1995, Intel settled a 
number of cases with A.M.D., including one involving antitrust charges.

“Intel has been more willing to negotiate with the government and less 
bellicose than Microsoft,” said Harry First, a professor at the New York 
University School of Law and the former chief of the New York attorney 
general’s antitrust bureau. “Frankly, I think they’ve been smarter 
litigants and have escaped more than Microsoft.”

Over the past couple of years, however, regulators have dug in and 
secured victories against Intel. In 2005, Japanese regulators determined 
that Intel had violated antitrust laws in that country, and South Korean 
antitrust authorities followed suit in a similar case. But the verdict 
in May by the European Commission was by far the biggest blow against 
the company.

During the press conference, New York prosecutors said Intel abused its 
monopoly power “as a central business strategy” rather than just in 
isolated incidents. In addition, the attorney general’s office claimed 
to have evidence linking Intel’s top executives to these abusive actions.

“We intend to stop them,” Mr. Cuomo said.

In the 80-page lawsuit, Mr. Cuomo appeared to be piggybacking, in part, 
on extensive e-mail evidence gathered during Europe’s investigation into 
Intel’s business practices.

In the statement, the attorney general pointed to e-mail messages that 
detail Intel’s interactions with companies like Hewlett-Packard, Dell 
and I.B.M. that he said support the case against Intel.

For example, Intel is accused of paying I.B.M. $130 million to hold back 
on selling a server based on A.M.D.’s Opteron chip, while also 
threatening to curtail joint projects if I.B.M. marketed A.M.D.’s products.

“The question is, can we afford to accept the wrath of Intel?” an I.B.M. 
executive wrote in a 2005 e-mail message, according to Mr. Cuomo’s office.

A similar e-mail message from an unnamed Hewlett-Packard executive talks 
about Intel planning to “punish” the company for selling products based 
on A.M.D.’s chips.

Most of the past antitrust cases in Europe and Asia have centered on 
Intel’s actions in the PC market. But Mr. Cuomo’s case seems to place 
substantial emphasis on the company’s server-chip business as well.

In 2003, A.M.D. released a chip called Opteron that thrust the company 
into the mainstream server market for the first time. For about four 
years, the product was hailed by analysts and hardware makers as 
superior to Intel’s Xeon chip.

With Opteron on its side, A.M.D. for the first time managed to attract 
Hewlett-Packard , I.B.M., Dell and Sun Microsystems as server-chip 
customers. A.M.D. executives, however, have long contended that Intel 
thwarted the adoption of Opteron through abusive practices and blunted 
A.M.D.’s ability to capitalize on the product.

They have also argued that Intel has blocked A.M.D.’s attempts to place 
its chips in computers purchased by businesses. Both the server and 
business PC markets tend to generate higher profits than the consumer 
computer market.

I.B.M., which competes with Intel in the server chip market, and A.M.D. 
have invested billions of dollars in chip plants in New York.

Along with e-mail messages from hardware makers, Mr. Cuomo has presented 
messages exchanged between Intel executives in which they express 
antitrust concerns. “Let’s talk more on the phone as it’s so difficult 
for me to write or explain without considering antitrust issue,” one 
Intel executive was said to have written in an April 2006 message.

In interviews, a number of antitrust experts found similar e-mail 
exchanges presented by the European Commission unconvincing and said the 
regulators’ evidence was thin on details.

“I look at it, and I don’t have a lot of confidence in what the E.C. 
alleges,” said John E. Lopatka, a professor and antitrust expert at Penn 
State’s Dickinson School of Law. “It does smack of a brief more than an 
objective and honest recitation of the results of investigation.”

The issue of so-called loyalty discounts provided by a supplier to its 
customers remains a murky area in United States law.

“European law is much harsher on loyalty discounts,” Mr. First said. 
“There is still a lot of debate here among commentators and the courts 
on this issue, and the Supreme Court has not spoken on how we should 
treat this sort of loyalty pricing.”

Mr. Cuomo’s office said it had examined millions of pages of e-mail 
messages and documents during its 23-month investigation into Intel and 
taken testimony from dozens of witnesses.

Mr. Cuomo contends that consumers would have benefited from lower prices 
and better products had there been an even playing field in the chip 
market. His lawsuit seeks to stop Intel from continuing what he called 
its anticompetitive practices and to recover damages and penalties.

-- 
================================
George Antunes, Political Science Dept
University of Houston; Houston, TX 77204 
Voice: 713-743-3923  Fax: 713-743-3927
Mail: antunes at uh dot edu

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