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Technology Stocks : Dell Technologies Inc. -- Ignore unavailable to you. Want to Upgrade?

To: rudedog who wrote (68061)	9/29/1998 12:19:00 AM
From: nihil	Read Replies (1) \| Respond to of 176387

RE: PCI-X It certainly is complex, and the fact that it takes more than a couple of messages among intelligent people proves it. I am (obviously) not a patent or antitrust attorney either. As long as there is no explicit agreement among firms to fix prices (even "fair prices"), divide the market, or destroy or exclude competition such a dispute would fall under the "rule of reason" in which the judge would have to decide as a matter of law whether restraint included in the agreement (or conspiracy) was ancillary or incidental to legal or even commendable purposes (such as bringing new technology to market). This judgment is usually based (in part) on whether the alleged conspirators used the smallest degree of constraint compatible with their legal objective. In this case, the question would be was the exclusion or penalization of Dell necessary for them to obtain a reasonable return (not necessarily the maximum return) on their investment? It would doubtless be decided (at least on appeal) that such a constraint was unnecessary even if it was not the purpose of the agreement (which it probably isn't), and that the agreement could have been implemented by a negotiated fee schedule that would permit the other server companies to participate on equitable terms. In fact, before it sued, Dell, if it expected to win, would demand participation and offer to pay a reasonable fee to be negotiated. If a reasonable fee could not be negotiated, Dell would sue, petitioning for summary judgment, arguing that failure of negotiations made it a per se price fixing violation, and that continued exclusion would create irreversible damages. If the judge did not grant summary judgment, Dell could then discover all of the relevant server research and business documentation of the conspirators. Everyone could spend millions, and there would be a negotiated settlement unless Dell found that there was in fact a criminal conspiracy aimed at destroying Dell. Thanks for the discussion. Lots of people do things they can't expect to get away with, but it amazes me that they record self-destructive remarks and records the way they do (e.g. Gates and Balmer). Think I'll go clean out my files.