INTERVIEW : US DOJ - INDUSTRIE DE HAUTE TECHNOLOGIE - MONDIALISATION - CONVERGENCE ENTRE LES USA ET L’EUROPE - ACTIONS COLLECTIVES

Douglas MELAMED, Intel: Antitrust perspectives from Silicon Valley

1. You have been a partner in a prominent law firm, a high-ranking antitrust enforcer for the U.S. Department of Justice (“DOJ”), and now, a general counsel of a leading technology company – one that has received a fair amount of antitrust scrutiny. Has your perspective on antitrust changed as you have successively assumed new roles and if so, how?

2. As Deputy Assistant Attorney General and Acting Assistant Attorney General in the Antitrust Division, you were one of the architects of the DOJ’s landmark monopolization case against Microsoft. The DOJ recently let the consent decree that it obtained against Microsoft as a result of that litigation expire. Looking back 13 years later, do you have any reflections on what the DOJ accomplished as a result of that case? Is there anything that you would have done differently?

3. One argument that was advanced in the Microsoft case and that continues to be heard today is that antitrust is ill-suited to high-technology industries because of the rapid pace of change and innovation and the need to reward firms for the risks they take in innovating and competing in such markets. What are your views on this argument?

4. Another defense that Microsoft offered at trial was that its position in PC operating systems was threatened by non-PC devices and other technologies that could displace PCs, such as handheld devices and “cloud computing.” Those technologies have indeed made enormous strides since 1998, and Microsoft does not appear to have extended its dominance into these areas. Does this suggest that Microsoft’s defense was correct?

5. It is manifest that in your various capacities you have been involved in some of the most important and groundbreaking cases challenging allegedly anticompetitive single-firm conduct since the break-up of AT&T. Where do you see the antitrust treatment of single-firm conduct evolving and do you anticipate more convergence between the United States and Europe in addressing this issue?

6. Unlike in the European Union, in the United States, the state Attorneys General can bring an antitrust action independently, even when the very same conduct has been challenged by a federal agency. When the state Attorneys General go beyond traditional anti-cartel enforcement into more controversial areas, such as single-firm conduct, they are occasionally criticized for permitting parochial or political interests to outweigh principled enforcement decisions and/or creating difficulties for businesses that need to navigate the views of different enforcers in different states. Do you believe that these criticisms have merit, and is there anything that can or should be done to address these potential concerns?

7. The two major antitrust enforcement agencies in the United States, the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) share responsibilities in investigating and potentially challenging mergers and anticompetitive conduct (except for criminal cartels and bid-rigging cases where DOJ has exclusive jurisdiction). Despite the existence of clearance procedures agreed upon by the two agencies which allocate primary areas of responsibility on an industry-wide basis, the Wall Street Journal and others have recently described a perceived escalation in tensions between the DOJ and FTC, suggesting that “clearance battles” and a lack of cooperation between the two agencies have inhibited the efficient review of mergers and other investigations. What are your thoughts on this perceived issue?

8. There seems to be widespread agreement that the “internationalization” of antitrust enforcement has yielded substantial benefits in deterring, detecting, and punishing cartel behavior on an international basis. There is a concern among some, however, that other types of antitrust enforcement by various antitrust authorities have not been so uniformly pro-competitive, and that some antitrust enforcers are unduly influenced by the parochial interests of their own constituents, at the expense of principled enforcement. Do you share those concerns and is there anything that can be done about them?

9. On the subject of internationalization of antitrust, some jurisdictions are considering adopting or expanding procedures for collective actions, and perhaps importing some features of the U.S. class action system. Do you have any advice for them?

10. As the general counsel of one of the leading technology companies in the world, with a myriad of global, national and local contracts and businesses, and subject to antitrust scrutiny all over the world, how do you, as a practical matter, go about designing a program to ensure that you are in compliance with the various competition regimes to which your client is subject, especially in areas such as non-cartel behavior, where there is not uniformity among regulators? Do you need to tailor your advice to the most restrictive regime? Relatedly, if more than one authority begin investigating, how do you as a practical matter coordinate your response to the different agencies?

11. For leading technologies companies such as Intel, what challenges do you foresee in navigating the international antitrust waters in the upcoming years? Has antitrust exposure, as some have suggested, become a penalty for success in the marketplace? Do you believe that leading technology companies sometimes pull their punches on pro-competitive activity because of the potential for negative regulatory consequences?

Interview conducted by John F. Cove, Boies Schiller & Flexner LLP, California.

Douglas MELAMED: Perspectives from Silicon Valley 2009-Present Senior Vice President and General Counsel of Intel Corporation, Santa Clara, CA 2001-2009 Partner and Chair of the Antitrust and Competition Practice Group, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC 1996-2001 Acting Assistant Attorney General and Principal Deputy Assistant Attorney General, U.S. Department of Justice Antitrust Division, Washington, DC 1971-1996 Attorney, Wilmer Cutler Pickering Hale LLP, Washington, DC 1970 J.D., Harvard Law School You have been a partner in a prominent law firm, a high-ranking antitrust enforcer for the U.S. Department of Justice (“DOJ”), and now, a general counsel of a leading technology company – one that has received a fair amount of antitrust scrutiny. Has your

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Douglas Melamed, Douglas MELAMED, Intel: Antitrust perspectives from Silicon Valley, September 2011, Concurrences Review N° 3-2011, Art. N° 37034, www.concurrences.com

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