AMD: Setbacks in Intel Case Not Significant

In a response to our story on Intel's antitrust battle heating up in Europe, AMD spokesperson Michael Silverman offered BetaNews his company's opinion on whether the hopes for its judicial case in the US against Intel were dashed with District Judge Joseph Farnan's partial dismissal decision last September.

Specifically, Silverman took issue with our having stated that Judge Farnan threw out much of AMD's case. "I've got to take issue with that one," Silverman began.

"What Judge Farnan had ruled previously was simply that he was unable to monetarily compensate AMD for lost sales outside the US because he had no jurisdiction there," Silverman explained. "Counsel for Intel tried to position that ruling as one that threw out foreign misconduct completely from this case. As the December 15 recommendation by Special Master Vincent Poppiti indicates, the foreign evidence of misconduct should indeed be allowed in the case."

AMD's case at present depends on its ability to prove that certain exclusivity deals Intel allegedly made with resellers in Germany reduced demand for AMD processors to such an extent that AMD decided not to build a new fabrication facility in the States after all, which would have serviced both US and European customers. Intel argued that since AMD produces processors in Germany that sell to the German market, it's technically not an exporter, and thus does not fall under the one exemption the US' Sherman Antitrust Law leaves open for seeking redress for monopolistic conduct. Judge Farnan agreed with that contention.

Looking back at two specific documents in question - the judge's September 26 opinion and Poppiti's December 15 recommendation - it would appear Judge Farnan did present a formidable obstacle to AMD's presentation, but Poppiti pointed out that certain evidence may be admissible in the case even if the conduct to which it refers ends up not applying to US jurisdiction.

Citing from Judge Farnan: "For the reasons discussed in the context of the [Foreign Trade Antitrust Improvements Act], the Court concludes that the alleged injuries suffered by AMD as a result of Intel's foreign conduct are foreign injuries that occurred in foreign markets. Because such foreign injuries are 'not the type of injury Congress intended to prevent through the [FTAIA] or the Sherman Act,' the Court concludes that AMD lacks standing to pursue its claims based on foreign injury. Accordingly, for this additional reason, the Court will dismiss AMD's claims for foreign injuries arising as a result of Intel's alleged foreign conduct."

Special Master Poppiti opened a window for AMD with this suggestion: "While the FTAIA does limit certain foreign conduct from being actionable under the Sherman Act, the FTAIA does not prohibit the discovery of information that is otherwise discoverable. Indeed, nothing in the FTAIA suggests it was designed to prohibit the discovery of information that is otherwise discoverable and Intel is unable to cite to any case in support of such proposition."

Indeed, as Silverman pointed out, Intel declined to file an objection to the Special Master's motion by the deadline it was offered. "Thus the Special Master's recommendation became a court order," he reminded us, "which now compels Intel and subpoenaed third parties to produce overseas evidence as part of the discovery process."

Whether this is the same evidence that European Commission investigators sought during a 2005 raid of Intel's European offices, in connection with its separate investigation of Intel's conduct, will yet be determined.