Letter from Judge Ken Starr to Assistant Attorney General Makan Delrahim Concerning Conflict Between the International Trade Commission and the Antitrust Division over Monopoly and Innovation

Judge Ken Starr

Abstract

Judge Ken Starr, former Solicitor General and Circuit Judge on the U.S. Court of Appeals for the District of Columbia Circuit, has responded on behalf of his client, J. Gregory Sidak, chairman of Criterion Economics LLC, to derogatory comments about Mr. Sidak’s expert economic testimony that were made by an administrative law judge (ALJ) of the International Trade Commission in the recommended determination in Investigation No. 337-TA-1065, Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof, which concerns Apple’s alleged infringement of certain non-standard-essential Qualcomm patents practiced in five models of iPhones. Judge Starr concludes that an appellate court would find multiple rulings by the ALJ that disparage Mr. Sidak to be arbitrary and capricious, unsupported by substantial evidence, and contrary to established antitrust law. In addition, Judge Starr explains why in his opinion the ALJ’s recommended determination “reached findings that conflict with controlling American antitrust jurisprudence and consequently drive a wedge between the Antitrust Division and the ITC on how properly to use economic principles to diagnose monopoly power.”

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