Federal Trade Commission Seeks Supreme Court Review of D.C. Circuit’s Decision in Rambus Case

by Lee Gesmer on November 26, 2008

The FTC’s decision to seek Supreme Court review in this case was widely expected, but nevertheless, it’s interesting to see that the FTC in fact did what many antitrust practitioners hoped it would do. For background on this matter, see this posting from May of this year, which discusses the background of this case in some detail. Additional posts discussing various aspects of Rambus are here, here, here and here. The D.C. Circuit decision that is the subject of the appeal is here.

Not surprisingly, the FTC’s petition for certiorari argues that standard-setting is a ubiquitous and important economic activity, and that the D.C. Circuit’s decision leaves aspects of that process in legal limbo, due to a conflict with another circuit and a misreading of Supreme Court precedent. The FTC also suggests that this case is an opportunity for the Supreme Court to address the thorny issues of causation and competitive harm under Section 2 of the Sherman Act.

The “Questions Presented” section of a cert petition is always important, since it is intended to summarize, in very few words, the key issue that the petitioner thinks will interest the Court in accepting the appeal. To be effective, the Questions Presented must be both concise and persuasive. The Questions Presented in the FTC petition are as follows:

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 anti-competitive under Section 2 of the Sherman Act.

This will be a very closely watched and hard fought petition, with many amicus briefs on either side of the issue. Acceptance rates by the Court are always in the single digits, but this case presents important issues of national economic policy, and therefore it’s reasonable to think that the odds in favor of Supreme Court review are much higher than average.

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