It should be clarified that the special mechanism in the hand did not determine who would be the winner who would provide the contents of the equipment to the customer. Contrary to what was claimed, he did not negate the competition between the suppliers. Even if, in one case or another, the granting of a special hand to a certain supplier gave him an advantage and priority and increased his chances of winning in a way that could have projected on the intensity of the competition, this would not have guaranteed him the win or eliminated the competition as claimed (see also paragraph 1077 ff. below; in the testimony of Urshitzer to which Wei referred at paragraph 60 of her summaries in this context, p. 2567, s. 1-31, p. 2591, there is no what you find in it; And Orshitzer himself refers to the fact that the special in hand increases the chances of winning and does not guarantee it; Even if the priority is intended in some cases to give the supplier an advantage due to his investment, there is no basis for it being intended to guarantee him a win without any competition). In any event, this does not justify or legitimize coordination.
As we will see below, and beyond what is required, in practice there was a possibility of competition even when a certain supplier received a special in hand. Even in this state of affairs, there was competition and uncertainty. In these cases as well, the coordination sought to remove such a concern in a manner that might harm competition (see paragraph 1077 onwards below).
Therefore, these arguments of the defense must be rejected.
- The defendants claimed that on the relevant dates of the indictment – between 2009 and 2012 – IBM refrained from requesting an exemption for the special mechanism in hand, and since it continued to act to provide discounts under the special mechanism in hand, it acted illegally and in a manner that establishes a basis for a claim of selective enforcement (e.g., paragraphs 61 and 67 of the Wii summaries; paragraphs 37-38 of the Harel summaries; Triple C a different argument with respect to the factual situation, Paragraph 157 of its summaries).
Indeed, it seems that there is substance to the defense's arguments with respect to the factual situation. From the evidence presented, it appears that the exemption request filed by IBM in 2008 and the subsequent exemption decision did not relate to the special mechanism by hand. As stated, the reason for this was not clarified (see paragraph 1064 above).