Overview[edit | edit source]

Section 2 of the Sherman Act proscribes “attempt[s] to monopolize.” 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.”[1] It is “not necessary to show that success rewarded [the] attempt to monopolize;”[2] 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.”[3]

The same principles are applied in evaluating both attempt and monopolization claims.[4] Conduct that is legal for a monopolist is also legal for an aspiring monopolist.[5] 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.[6]

Specific intent to monopolize does not mean “an intent to compete vigorously;”[7] rather, it entails “a specific intent to destroy competition or build monopoly.”[8] Some courts have criticized the intent element as nebulous and a distraction from proper analysis of the potential competitive effects of the challenged conduct.[9] 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”[10] 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.”[11]

The “dangerous probability” inquiry requires consideration of “the relevant market and the defendant’s ability to lessen or destroy competition in that market.”[12] In making these assessments, lower courts have relied on the same factors used to ascertain whether a defendant charged with monopolization has monopoly power,[13] while recognizing that a lesser quantum of market power can suffice.[14]

References[edit | edit source]

  1. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993).
  2. Lorain Journal Co. v. United States, 342 U.S. 143, 153 (1951).
  3. Spectrum Sports, 506 U.S. at 455 (quoting Swift & Co. v. United States, 196 U.S. 375, 396 (1905)).
  4. See Section of Antitrust Law, American Bar Ass'n, Antitrust Law Developments 225, 307 (6th ed. 2007) (“The same principles used in the monopolization context to distinguish aggressive competition from anticompetitive exclusion thus apply in attempt cases.”).
  5. Olympia Equip. Leasing Co. v. Western Union Tel. Co., 797 F.2d 370, 373 (7th Cir. 1986) (Posner, J.) (citing 3 Phillip E. Areeda & Donald F. Turner, Antitrust Law ¶828a (1978)).
  6. United States v. Dentsply Int’l, Inc., 399 F.3d 181, 187 (3d Cir. 2005) (“Behavior that otherwise might comply with antitrust law may be impermissibly exclusionary when practiced by a monopolist.”); 3A Phillip E. Areeda & Herbert Hovenkanp, Antitrust Law ¶806e (2d ed. 2002).
  7. Spectrum Sports, 506 U.S. at 459; see also Areeda & Hovenkamp, ¶805b1, at 340 (“There is at least one kind of intent that the proscribed ‘specific intent’ clearly cannot include: the mere intention to prevail over one’s rivals. To declare that intention unlawful would defeat the antitrust goal of encouraging competition . . . which is heavily motivated by such an intent.” (footnote omitted)).
  8. Times-Picayune Publ’g Co. v. United States, 345 U.S. 594, 626 (1953).
  9. See, e.g., A.A. Poultry Farms, Inc. v. Rose Acre Farms, Inc., 881 F.2d 1396, 1402 (7th Cir. 1989) (Easterbrook, J.) (“Intent does not help to separate competition from attempted monopolization and invites juries to penalize hard competition. . . . Stripping intent away brings the real economic questions to the fore at the same time as it streamlines antitrust litigation.”).
  10. Areeda & Hovenkamp, ¶ 805b2, at 342.
  11. Id. ¶805a, at 339–40.
  12. Spectrum Sports, 506 U.S. at 456.
  13. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 81 (D.C. Cir. 2001) (en banc) (per curiam) (“Defining a market for an attempted monopolization claim involves the same steps as defining a market for a monopoly maintenance claim . . . .”); Section of Antitrust Law, at 312-17 (cataloging factors considered by courts, including, most importantly, market share and barriers to entry).
  14. See, e.g., Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d 1421, 1438 (9th Cir. 1995) (“[T]he minimum showing of market share required in an attempt case is a lower quantum than the minimum showing required in an actual monopolization case.”); Section of Antitrust Law, at 312.
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