What Antitrust Defendants Can Learn from Qualcomm’s Victory

April 27, 2021

In this era of antitrust overdrive, what strategies can overcome overzealous regulators and unsympathetic judges?

Many of the elements in Qualcomm’s victory over a Federal Trade Commission lawsuit are peculiar to that Gordian knot of a case. But there are some takeaways from Qualcomm’s experience that any business can adapt.

Qualcomm General Counsel Donald J. Rosenberg highlighted some of these elements in a recent Law 360 interview. Here are some of the takeaways we see from that interview:

1. Be prepared well in advance, anticipating challenges to come through long-term planning. This is especially important in a time when regulators and judges are applying exotic new theories to antitrust law.
   
2. Message early, often and consistently. In the case of Qualcomm, it highlighted its role as an “outsourced innovation lab” that supported technological development for much of the rest of the industry.
   
3. Be prepared for the long fight. “You have to always think about the possibility of losing or not completely winning at the district level,” Rosenberg said. “Making sure you have the right record and basis for the appellate review, which in this case worked spectacularly well.”
   
4. Keep it simple. Thomas C. Goldstein of Goldstein & Russell, brought in for the appeal, said he based his approach on a simple proposition:
   
   “Antitrust law is intended to protect consumers, not competitors. And the FTC just had no theory, and the district court had no findings, about how Qualcomm’s licensing practices harmed consumers.”

All of this may seem basic, but many have stumbled past the basics on their way to stumbling in court. As the U.S. Senate debates radical changes to antitrust law from both the left and the right, every corporation will need the kind of focus and discipline Qualcomm showed.