(December 16, 2018) Criterion Economics issued a press release today reporting that 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, whom he represents “[a]s a matter of principle and without acceptance of any fee,” to derogatory comments about Mr. Sidak’s expert economic testimony that were made by an administrative law judge (ALJ) of the International Trade Commission (ITC) in the recommended determination in Investigation No. 337-TA-1065, Certain Mobile Electronic Devices and Radio Frequency and Processing Components Thereof. The 1065 Investigation 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.”
Judge Starr delivered a letter to Assistant Attorney General Makan Delrahim of the Antitrust Division of the U.S. Department of Justice on Tuesday, December 11, 2018, alerting him to the rift that the 1065 Investigation creates between the ITC and the Antitrust Division. Writing from the perspective of an appellate judge reviewing an agency’s action, Judge Starr identifies what he considers to be three reversible errors in the ALJ’s findings concerning Mr. Sidak’s testimony: (1) the ALJ’s inference of monopoly power from market share alone, (2) the ALJ’s finding that Schumpeterian competition across successive generations of monopoly cannot deliver innovation and lower quality-adjusted prices, and (3) the ALJ’s finding that Mr. Sidak was biased and that his expert economic testimony lacked credibility and deserved no evidentiary weight. Judge Starr enclosed with his letter to Mr. Delrahim a copy of Mr. Sidak’s own memorandum to the Antitrust Division, Will the International Trade Commission or the Antitrust Division Set Policy on Monopoly and Innovation. Written in consultation with Judge Starr, the memorandum explains in greater economic detail why the ALJ’s findings in the 1065 Investigation conflict with controlling American antitrust jurisprudence and diminish public confidence in the quality and sophistication of the ITC’s administrative adjudication of patent-infringement disputes.
(September 26, 2016) On December 17, 2015, the Second Circuit heard oral argument in United States v. American Express Co., No. 15-1672. The three-judge panel questioned the Department of Justice about the analysis of market definition and market power contained in the amicus brief of J. Gregory Sidak, Robert D. Willig, David J. Teece, and Keith N. Hylton. Scholars and experts on the economic analysis of antitrust law, the amici believe that errors in the district court’s opinion threaten to undermine proper economic analysis of antitrust questions in two-sided markets. The amici specifically note three reversible errors committed by the district court concerning: (1) whether American Express possessed market power, (2) the competitive effects of the challenged conduct, and (3) market definition in the two-sided credit card network. Judge Wesley called the judges’ questioning “vigorous” in this “extraordinary” case. One day after oral argument, the Second Circuit, sua sponte, stayed Judge Garaufis’s injunction in United States v. American Express Co., No. 15-1672, and stayed proceedings in any and all matters related to this litigation. On September 26, 2016, Judge Wesley, writing for the Second Circuit, reversed and remanded the case with instructions to enter judgment in favor of American Express.
(Feb. 3, 2016) Global Competition Review has nominated Greg Sidak for its 2016 academic excellence award, which is awarded to “[a]n academic competition specialist who has made an outstanding contribution to national and/or international competition policy in 2015.” In addition, Concurrences nominated Greg for writing awards in three categories:
- Asian Antitrust (Academic): FRAND in India: The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents
- Intellectual Property & Antitrust: The Meaning of FRAND, Part II: Injunctions
- Intellectual Property & Antitrust (Business): How Licensing Standard-Essential Patents Is Like Buying a Car
On February 7, 2006, Greg Sidak debated Larry Lessig on network neutrality before the Senate Committee on Commerce, Science, and Transportation. A decade later, the debate grinds on, with the Federal Communications Commission’s newest rulemaking again being challenged in the D.C. Circuit. Yet the Senate heard virtually every substantive argument for or against net neutrality in the Lessig-Sidak debate a decade ago. Sidak published two exhaustive articles in the Journal of Competition Law & Economics (one with David Teece) on net neutrality.
In 2015, the European Commission issued an official report on FRAND, “Fair, Reasonable and Non-Discriminatory (FRAND) Licensing Terms: Research Analysis of a Controversial Concept,” conducted by the European Commission’s in-house Joint Research Centre at the Institute for Prospective Technological Studies. The report cites Greg Sidak’s article, The Meaning of FRAND, Part I: Royalties, published in 2013 in the Journal of Competition Law & Economics. The European Commission’s report explains that one reason why the implementation of the “Ex-Ante Incremental Value” approach has been difficult is because, in the view of SEP holders,
“the method amounts to simulating tough price competition between technologies after inventors have sunk their R&D costs, which gives all the bargaining power to the licensee. . . . [The Ex-Ante Incremental Value approach] therefore fails to preserve inventors’ incentives to invest in R&D and to contribute their inventions to the standard-setting process (Sidak, 2013).”
(Oct. 17, 2013) Experts Discuss Arbitration of FRAND Disputes at 2013 ANSI Legal Issues Forum, ANSI News & Publications
(Sept. 3, 2013) Salute to Ronald Coase, 1910-2013, Tilburg University News
(Nov. 15, 2012) SIDAK: Supreme Court Must Clean Up Washer Mess, Washington Times
(Nov. 1, 2012) Internet Search and the Nature of Competition, The American
(Oct. 8, 2012) Bork and Sidak defend Google against critics, Global Competition Review
(Oct. 6, 2012) Bork and Sidak Joint Statement on Google Antitrust Claims, New York Times
(Oct. 5, 2012) Broadcast of ‘Google and Antitrust: The New Debate Over Internet Search’, C-SPAN2
(Sept. 2012) How Apple v. Motorola Could Alter Patent Litigation, InsideCounsel
(June 29, 2012) Apple v. Motorola: Implications For Patent Damages, Law360
(June 2012) The OECD’s Proposal to Cartelize Mexican Communications, CPI Antitrust Chronicle
(May 21, 2012) Antitrust Expert: OECD Recommendations Would “Cartelize” Mexican Telecom Market, New York Times
(Apr. 4, 2012) America Movil Asks Colombia To Stop Targeting Prices, Bloomberg