July 18, 2005
AMD sues Intel
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| by Jack Horgan - Contributing Editor
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On June 28, 2005 Advanced Micro Devices (AMD) announced that it filed an antitrust complaint against Intel Corporation yesterday in U.S. federal district court for the district of Delaware under Section 2 of the Sherman Antitrust Act, Sections 4 and 16 of the Clayton Act, and the California Business and Professions Code.
On June 29, 2005 Intel Corporation President and CEO Paul Otellini said in response to the lawsuit that
"Intel has always respected the laws of the countries in which we operate. "We compete aggressively and fairly to deliver the best value to consumers. This will not change."
"Over the years, Intel has been involved in other antitrust suits and faced similar issues. Every one of those matters has been resolved to our satisfaction. We unequivocally disagree with AMD's claims and firmly believe this latest suit will be resolved favorably, like the others."
In an open letter AMD CEO Hector Ruiz accuses Intel of harming and limiting competition in the microprocessor industry. The letter states in part:
“Intel's actions include:
- Forcing major customers to accept exclusive deals,
- Withholding rebates and marketing subsidies as a means of punishing customers who buy more than prescribed quantities of processors from AMD,
- Threatening retaliation against customers doing business with AMD,
- Establishing quotas keeping retailers from selling the computers they want, and
- Forcing PC makers to boycott AMD product launches
For most competitive situations, this is just business. But from a monopolist, this is illegal.”
AMD also released a copy of the 48 page compliant that can be found on
This action followed the release of Japan Fair Trade Commission (JFTC)'s findings in its March 8, 2005 Recommendation that Intel K.K. committed violations of the Antimonopoly Act. The JFTC Recommendation concluded that Intel K.K. interfered with AMD Japan's business activities by providing large amounts of funds to five Japanese PC manufacturers (NEC, Fujitsu, Toshiba, Sony, and Hitachi) on the condition that they refuse to purchase AMD processors.
In response to the JFTC recommendation Bruce Sewell, Intel general counsel, said in a statement. "Intel respectfully disagrees with the allegations contained in the recommendation, but in order to continue to focus on the needs of customers and consumers, and continue to provide them with the best products and service, we have decided to accept the recommendation"
AMD Japan has since filed two claims against Intel Corporation's Japanese subsidiary, Intel K.K., in the Tokyo High Court and the Tokyo District Court for damages arising from violations of Japan's Antimonopoly Act.
On July 5, 2005 AMD won a court order to preserve documents. The U.S. District Court for Delaware ruled that AMD can subpoena several computer makers, microchip distributors and retailers for the documents.
Some historical background as recounted in AMD's complaint
In the 1980 IBM choose the Intel architecture (x86) and Microsoft DOS operating system for its PC. IBM demanded that Intel contract with another integrated circuit company and license it to manufacture x86 chips as a second source. AMD, which had worked with Intel before in supplying microprocessors, agreed to abandon its own, competing architecture, and it undertook to manufacture x86 chips as a second source of supply. AMD alleges that Intel soon set out to torpedo the 1982 AMD-Intel Technology Exchange Agreement by which each would serve as a second source for products developed by the other. Intel subsequently decided that it would be the sole-source for the 80386 chip but kept this
decision secret from AMD and thereby prevented AMD from offering a timely second source or developing its own alternate. After 5 years of litigation an arbiter awarded AMD $10 million as well as a permanent, nonexclusive and royalty-free license to any Intel intellectual property embodied in AMD's own 386 microprocessor, including the x86 instruction set. AMD was forced to reinvent itself as a developer of microprocessor technology not just a second source.
X86 Worldwide CPU Unit Market Share
Clearly Intel has a dominant market share. Most x86 microprocessors are used in desktop PCs and mobile PCs, with desktops currently outnumbering mobile by a margin of three to one. Tier One OEMS including HP, Dell, IBM/Lenovo, Gateway/eMachines and Fujitsu/Fujitsu Siemens collectively account for almost 80% of servers and workstations, more than 40% of worldwide desktop PCs, and over 80% of worldwide mobile PCs.
AMD's Complaint alleges that:
“Intel arsenal includes direct payments in return for exclusivity and near-exclusivity; discriminatory rebates, discounts and subsidies conditioned on customer “loyalty” that have the practical and intended effect of creating exclusive or near-exclusive dealing arrangements; threats of economic retaliation against those who give, or even contemplate giving, too much of their business to AMD, or who refuse to limit their AMD business to Intel-approved models, brands, lines and/or sectors, or who cooperate too closely with AMD's promotion of its competitive processors; and misuse of industry standards-setting processes so as to disadvantage AMD products in the
The compliant cites instances of these alleged abuses with virtually every Tier-One vendor, often citing explanations given by customer executives for changing their mind relative to AMD purchases as evidence.
Beginning in 1999 with the introduction of its Athlon microprocessor AMD began to make inroads in Japan. By the end of 2002, AMD had achieved an overall Japanese unit market share of approximately 22%. But according to AMD Intel business practices reversed this trend. AMD's share of Sony's business dropped from 23% in 2002 to 8% in 2003, and then to 0%, where it remains today. AMD had 84% share of NEC's Japanese consumer desktop business in the third quarter of 2002 but sales plummeted to virtually zero in the first quarter of 2003. During the first part of 2002, AMD was shipping 50,000 Athlon microprocessors to Hitachi per quarter. But by the middle of the year, AMD sold no
microprocessors to Hitachi at all. And so on and so forth. AMD points to the JFTC Recommendation as confirmation of its charges.
AMD points to its recent gains in technology leadership. In April 2003 AMD introduced its Opteron 64-bit microprocessor and later Athlon64 which unlike Intel's Itanium had backwards compatibility with 32-bit software. However, AMD's market share has not kept pace with its technical leadership. AMD's explanation is Intel's misconduct.
“Intel has unlawfully maintained the monopoly IBM bestowed on it and systematically excluded AMD from any meaningful opportunity to compete for market share by preventing the companies that buy chips and build computers from freely deploying AMD processors; by relegating AMD to the low-end of the market; by preventing AMD from achieving the minimum scale necessary to become a full-fledged, competitive alternative to Intel; and by erecting impediments to AMD's ability to increase its productive capacity for the next generation of AMD's state of the art microprocessors. Intel's exclusionary acts are the subject of the balance of this complaint.”
Background on Antitrust
The history of antitrust regulation and legislation can be traced back to 1870's. After the Civil War the railroad industry experienced a boom. The transcontinental Union Pacific Railroad was completed in 1869. Over 35,000 miles of track had been lain and the railroads became the nation's largest employers. Railroads offered farmers a way to transport produce to distant markets. However, the grain needed to be stored prior to transportation. In the minds of farmers the railroads, grain elevators and warehouses were overcharging for their services. An American agrarian movement, the Granger movement, became a major force in the politics in the Midwest, gaining control of several
state legislatures. These legislatures passed law to control the railroads for example by fixing maximum rates for storage of grain and by establishing state railroad commissions. Railroads and other challenged the constitutionality of these state laws. In 1876 the U.S. Supreme Court, in Munn (a warehouse owner) v. Illinois ruled against the railroads and established as constitutional the principle of public regulation of private utilities devoted to public use. Furthermore, the court said that "until Congress makes use of its power, a state might act even if in so doing it may indirectly operate upon commerce outside its jurisdiction." In 1866 in a second case, Wabash, St.
Louis & Pacific Railroad Company v. Illinois, the Supreme Court declared invalid an Illinois law prohibiting long- and short-haul clauses in transportation contracts as an infringement on the exclusive powers of Congress granted by the commerce clause of the Constitution. The result of the case was denial of state power to regulate interstate rates for railroads. In 1887 the Federal government established the Interstate Commerce Commission. The Commission's first act was to ensure "just and reasonable" rates from businesses and to prevent the formation of monopolies.
In 1890 the Sherman Anti-Trust Act was enacted. This legislation stated that "every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is hereby declared illegal”.
History books refer to President Theodore Roosevelt as a Trust buster. In 1903 he got Congress to authorize the creation of a new Department of Commerce and Labor that had power over the interstate commerce actions of business and power to monitor labor relations. Over forty suits were brought during Roosevelt's administration against the trusts.
In the early 1890s, the American Sugar Refining Company purchased stock in four other refineries, formerly competitors. By 1892, American Sugar Refining controlled 98 percent of the nation's refineries. In 1902 the Roosevelt administration brought suit alleging that an illegal restraint of trade in interstate commerce had occurred under the terms of the Sherman Antitrust Act. In 1895, the Supreme Court ruled eight to one against the government, reasoning that manufacturing (sugar refining) was not interstate commerce and, therefore, not subject to Congressional regulation.
Standard Oil was organized in 1863 by among others John D. Rockefeller. Over time the Trust came to control a lion's share of the production, transport, refining, and marketing of petroleum products in the United States. The Trust was accused of unfair monopolistic business practices such as temporarily undercutting the prices of competitors until they either went out of business or sold out to Standard Oil and buying up the components needed to make oil barrels in order to prevent competitors from getting their oil to customers.
In 1892 the Ohio Supreme Court declared the Standard Oil Trust to be an illegal monopoly and ordered its dissolution. The order had little effect as Standard Oil was subsequently reorganized in 1899 as a holding company under the name of Standard Oil Company of New Jersey, a state which had laws that allowed corporations to own stock in other corporations. The trust was dissolved into 6 or 7 independent sister companies following a U.S. Supreme Court decision in 1911.
In 1914 during Woodrow Wilson's term, the Clayton Anti-Trust Act was passed to prohibit discrimination in prices among purchasers, exclusive deals tying a purchaser to a single supplier, and any action that "substantially lessens competition or tends to create a monopoly." In the same year, the Federal Trade Commission was created to "prevent the unlawful suppression of competition." Over the years the Commission has been strengthened. In 1936 the Robinson Patman Act gave the commission the power to control prices of interstate commerce. The Act sometimes called the Anti-Chain-Store-Act forbade any person or firm engaged in interstate commerce to discriminate in price
to different purchasers of the same commodity when the effect would be to lessen competition or to create a monopoly. In 1950 the Celler-Kefauver Act was enacted to prevent corporate merges that stifle competition and promote monopolies.
The Hart-Scott-Rodino Antitrust Improvement Act of 1976 is in effect an amendment to existing anti-trust legislation. It requires that a company seeking to acquire or merge with another company must file advance notice if its intentions with the Federal Trade Commission and with the Antitrust Division of the Department of Justice at least thirty days prior to the consummation of such a transaction. If the government requests additional information to determine whether the proposed transaction comports with antitrust law, it may extend the waiting period for an additional thirty days after the information is submitted. The waiting period may also be terminated prior to the end of
thirty days if the parties request an early termination at the time of filing and if the government elects in its discretion to do so.
There are three tests to determine if a proposed acquisition/merger must provide this notification.
The Commerce Test - if any party to the proposed transaction is engaged in commerce or any activity affecting commerce.
The Size-of-the-Person test - One party's control group must have total assets of annual net sales in access of $200 million and another party's control group must have total seats or annual net sales in excess of $10 million.
The Size-of-the-Transaction test - if either $50 million or more of assets or voting securities are being acquired or 15% or more of voting securities are being acquired.
The filing fee for the acquiring party is at least $45K, more if the value of the assets is over $100 million.
The numbers cited above reflect changes made to the original act in 2000.
As a result of a suit filed in 1974 under the Sherman Antitrust Act, the American Telephone and Telegraph (AT&T) monopoly was broken up into the so-called “Baby Bells” in 1982.
In 1998 the US Department of Justice and 20 state attorneys general brought suit against Microsoft alleging that MS abused monopoly power when it packaged and bundled together with its Windows operating system and its Internet Explorer web browser. Its competitors product, Netscape Communicator, had to be bough and downloaded over the Internet or be bought in a retail store. In addition there were charges that MS altered its APIs in a way to favor IF over other browsers. The DOJ also charged that MS had violated an earlier consent decree signed in 1994 according to which Microsoft consented not to tie other Microsoft product to the sale of Windows but remained free to integrate
additional features into the operating system. MS argued that IE was a feature. In 1999 the judge ruled that Microsoft had committed monopolization and his remedy was that Microsoft must be broken into two separate units, one to produce the operating system, and one to produce other software components. Microsoft appealed the decision and won a partial victory. On September 6, 2001 the new Bush administration announced that it was no longer seeking to break up Microsoft and would instead seek a lesser antitrust penalty.
The subsequent settlement with the DOJ required Microsoft to share its APIs with third-party companies and appoint a panel of three people who will have full access to Microsoft's systems, records, and source code for five years to ensure compliance, but did not require Microsoft to change any of its code nor prevent Microsoft from tying other software with Windows in the future.
Since the settlement with the DOJ several companies have sued Miscrosoft including AOL who had acquired Netscape, Sun Microsystems reagrading the Java language, RealNetworks in digital music and video, Gateway and IBM related to IBM OS/2 operating system and SmartSuite products. Miscrosoft has settletd to the tune of over $3.5 billion. In addition the European Commission has fined Microsoft a record $613 million after it found the company abused its "virtual monopoly" with its Windows operating system and broke European antitrust law governing competition.
Is the mere exsitence of a monopoly or industry doiminence by itself a violation of anti-trust laws?
Clearly, not. The Federal government itself provides patnet protection which can at least for a period of time grant a monopoly. Further in its Standard Oil decision, the Supreme Court established an important legal standard termed the rule of reason. It stated that large size and monopoly in themselves are not necessarily bad and that they do not violate the Sherman Antitrust Act. Rather, it is the use of certain tactics to attain or preserve such position that is illegal. It is sort of like the conduct portion of a child's report card: Plays well with other.
We are all familiar with the Law of Diminishing Returns which states that the ROI on a particular investment say advertising dollars typically grows with the amount of that investment but then plateaus and possibly even drops off. The well known example is adding sugar as a sweetener to a cup of coffee. There is another less well-known law called the Law of Increasing Returns which can be restated more familiarly as “the rich get richer”. A firm with a dominant market position in an industry has the advantages of name recognition, size of customer install base, economies of scale and so forth. At one time in the IT world the saying was “No one ever got fired
for buying IBM”. What was the risk/reward ratio for an IT manager who made a decision against IBM for presumed better technology or lower price? As any marketer will tell you it requires far less investment (sales resources, advertising,
) to sell a product and/or service to an existing customer than to locate, attract, interest and sell a new customer. In most industries sales to existing customers often represent the lion's share of revenue. Customers have a significant investment not only in product but also in training, customization, knowledge base and so forth. Multi-year contracts, particularly with technology upgrade clauses, can have a lock-in effect. There
is also a network effect with dominant products. If I want to communicate, share data or whatever with other individuals or firms, I have a significant incentive to use compatible products. What could be more compatible than using the very same product? The likelihood that the others have a product from the dominant supplier is high.
Large companies generally have a broader product portfolio than smaller possibly niche players. This enables them to offer bundles of products and services at prices that smaller players can not match when their products are bought separately from multiple suppliers.
Major manufacturers and retailers are also major purchasers of products and product components. These large firms will naturally seek to leverage their purchasing power to obtain favorable pricing and T's and C's. A customer would expect to pay less per unit for 10 units than 1 unit and considerably less for 100 unit. The larger customer would also expect more in the way of service (installation, training, customization, technical support). As an aside CRM vendors often tout the ability of their software to identify unprofitable customers who frequently are among the largest customers but of course there is the network or drag impact.
In November 2004 Frontline did a segment on Wal-Mart whose business model is based upon attracting customers by offering the least expensive products. In particular they recounted the relationship between Wal-Mart and RubberMaid, the leading producer of rubber products for the home. RubberMaid had a great reputation for high quality at reasonable prices. It had been named America's most admired company by Fortune magazine in both 1993 and 1994. The firm began to sell products to Wal-Mart. Over time Wal-Mart became its largest customer. When the price of its raw materials rose dramatically, RubberMaid needed to raise its prices. They went to Wal-Mart to arrange for a pass through of
its increased cost. Wal-Mart refused to accept the new prices and dropped many of RubberMaid's products. The loss of Wal-Mart as a major customer led to the demise of RubberMaid. The squeeze on prices has forced many Wal-Mart suppliers and Wal-Mart itself to increasingly turn to China as a source of products.
The issues presented in the previous paragraphs demonstrate that a dominant supplier by virtue of that dominance has considerable advantage over smaller competitors. One can add to that aggressive marketing and sales practices. The question becomes at what point that supplier's actions crosses over the line into violation of antitrust laws.
In a speech in February Deborah Platt Majoras, FTC Chairman, said
“In the crucible of the marketplace, companies may succeed by beating their competitors in price or quality, and perhaps even driving them out of business. In most instances, such market results are and should be perfectly legal. We focus on protecting competition, not competitors. It is only when firms seek to “stack the deck,” by taking actions outside the realm of competition on the merits, that the antitrust laws must be invoked. “Free” market does not mean free of responsibility.”
Does a monopoly harm consumers or the general public?
Those who believe the answer is yes argue that monopolies can charge higher prices, crush potential competitors and stifle innovation in efforts to retain their monopolistic position. Those who believe that the answer is no argue that history rather than theory proves that these fears are unwarranted. Leading companies recognize the potential of disruptive technologies and therefore invest heavily in R&D. Remember Bell Laboratories when AT&T had a monopoly in the telephone industry. Undeniably IBM and Intel have significant R&D operations. Leading companies recognize that charging artificially high prices invites competition from low cost suppliers and may limit the total available
AMD financial performance in last quarter.
On July 13th AMD reported sales of $1.260 billion and net income of $11 million for the quarter ending June 26th. Second quarter sales were flat compared to the second quarter of 2004 and increased three percent from the first quarter of 2005. The operating loss was $7 million as compared to operating income of $72 million in the second quarter of 2004 and an operating loss of $46 million in the first quarter of 2005.
Robert J. Rivet, AMD's chief financial officer, said
“Our microprocessor business delivered another record quarter driven by increased demand for AMD server and mobile processors from our largest global OEM customers. Once again we continued to gain momentum with microprocessor sales growth increasing 38 percent compared to the second quarter of 2004. The solid overall demand was enhanced by our newer processor offerings. Strong Dual-Core AMD Opteron processor sales contributed to an 89 percent revenue increase in our server products from the prior quarter. This demonstrates the acceptance of the AMD64 platform by enterprise customers. Likewise, the AMD Turion 64 processor captured more than 60 design wins and drove record mobile
sales in the thin-and-light mobile PC category.”
The lawsuit has just been announced. Intel will undoubtedly put forward a vigorous defense. There is no way of anticipating what further facts and legal arguments may emerge. Therefore it is premature to speculate on the possibly outcome of this matter.
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-- Jack Horgan, EDACafe.com Contributing Editor.