Attempted monopolization

Section 2 of the Sherman Act proscribes “attempt[s] to monopolize.”8 Establishing attempted monopolization requires proof “(1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.”9 It is “not necessary to show that success rewarded [the] attempt to monopolize;”10 rather, “when that intent and the consequent dangerous probability exist, this statute, like many others and like the common law in some cases, directs itself against the dangerous probability as well as against the completed result.”11

The same principles are applied in evaluating both attempt and monopolization claims.12 Conduct that is legal for a monopolist is also legal for an aspiring monopolist.13 But conduct that is illegal for a monopolist may be legal for a firm that lacks monopoly power because certain conduct may not have anticompetitive effects unless undertaken by a firm already possessing monopoly power.14

Specific intent to monopolize does not mean “an intent to compete vigorously;”15 rather, it entails “a specific intent to destroy competition or build monopoly.”16 Some courts have criticized the intent element as nebulous and a distraction from proper analysis of the potential competitive effects of the challenged conduct.17 One treatise concludes that “‘objective intent’ manifested by the use of prohibited means should be sufficient to satisfy the intent component of attempt to monopolize”18 and that “consciousness of wrong-doing is not itself important, except insofar as it (1) bears on the appraisal of ambiguous conduct or (2) limits the reach of the offense by those courts that improperly undervalue the power component of the attempt offense.”19

The “dangerous probability” inquiry requires consideration of “the relevant market and the defendant’s ability to lessen or destroy competition in that market.”20 In making these assessments, lower courts have relied on the same factors used to ascertain whether a defendant charged with monopolization has monopoly power,21 while recognizing that a lesser quantum of market power can suffice.22