Tuesday, February 02, 2010

Intel’s Motion for Disqualification of Commissioner Rejected

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The FTC on January 19 issued an opinion in which it denied Intel Corporation’s motion to disqualify Commissioner J. Thomas Rosch from participating in adjudicative proceedings against the computer chip maker, even though Commissioner Rosch served as Intel’s primary outside antitrust counsel from about 1987 until mid-1993.

The Commission also released a statement by Commissioner Rosch, explaining his decision not to recuse himself in the matter. That statement was dated December 18, 2009—just two days after the agency issued its complaint against Intel for monopolizing the markets for Central Processing Units (CPUs) and creating a monopoly in the markets for graphics processing units (GPUs). (For further information on the FTC complaint against Intel, see the December 16, 2009 posting on Trade Regulation Talk.)

Matters Not “Substantially Related”

In an opinion written by FTC Chairman Jon Leibowitz, the Commission concluded that the current matter, which concerned conduct from 1999 to the present, and the matters upon which Commissioner Rosch previously advised Intel were not “substantially related.”

The FTC’s previous investigation in which Commissioner Rosch represented Intel principally focused on conduct that took place from 1985 through 1990. There was no pertinent nexus between the facts at issue in the prior representation and the current Intel matter, the Commission said.

Intel also failed to identify any basis for a reasonable person to question Commissioner Rosch’s ability to be impartial in adjudicating the proceeding, according to the Commission.

Commissioner Rosch’s Statement

In his separate statement, Commissioner Rosch explained his reasons for declining to recuse himself from further participation in the Intel proceeding. The Commissioner noted that disqualification was not supported under applicable standards for judges and FTC Commissioners, government ethical regulations, and California’s Rules of Professional Conduct.

Moreover, the Commissioner questioned Intel’s decision not to object to his participation in proceedings sooner. Intel did not move to disqualify Commissioner Rosch until the day before the Commission’s final vote to pursue administrative litigation. Over a period of approximately 18 months, “Intel never suggested (nor did any other participant for that matter) that there was any basis for disqualification,” Commissioner Rosch noted.

The Commission opinion and order denying motion for disqualification, In the Matter of Intel Corp., Dkt. 9341, appears here on the FTC website. Further details will appear in CCH Trade Regulation Reporter.

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