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Doyle, Barlow & Mazard PLLC

On September 17, Thomas O. Barnett, Assistant Attorney General for the Department’s Antitrust Division, issued a statement scrutinizing the Court of First Instance of the European Communities (“CFI) decision to affirm the substance of the European Commission’s (“EC”) March 2004 decision against Microsoft. Mr. Barnett said that “in light of the United States’ own antitrust case and judgment against Microsoft, and the importance of the computer industry to consumers and to the global economy, the United States has a particular interest in the CFI’s decision.” He expressed concern that “the standard applied to unilateral conduct by the CFI, rather than helping consumers, may have the unfortunate consequence of harming consumers by chilling innovation and discouraging competition.” He reiterated that there appeared to be a common disconnect between U.S. antitrust enforcement and European antitrust enforcement. “In the United States, the antitrust laws are enforced to protect consumers by protecting competition, not competitors. In the absence of demonstrable consumer harm, all companies, including dominant firms, are encouraged to compete vigorously. U.S. courts recognize the potential benefits to consumers when a company, including a dominant company, makes unilateral business decisions, for example to add features to its popular products or license its intellectual property to rivals or to refuse to do so.” There is a perception that European antitrust regulators are more willing to accept arguments from competitors and seek enforcement remedies that help competitors rather than consumers. The U.S. antitrust agencies are more skeptical of competitor complaints. Mr. Barnett also commented that the DOJ “looks forward to continuing its wide-ranging and positive relationship with the EC on antitrust matters.”

Andre Barlow

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