(12) Conduct that is legal for a monopolist is also legal for an aspiring monopolist. The same principles are applied in evaluating both attempt and monopolization claims. Section 2 also proscribes "attempt to monopolize." (8) Establishing attempted monop-olization 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 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)Īttempted monopolization requires (1) anticompetitive conduct, (2) a specific intent to monopolize, and (3) a dangerous probability of achieving monopoly power. A wide range of unilateral conduct has been challenged under section 2, and it often can be difficult to determine whether the conduct of a firm with monopoly power is anticompetitive. This element includes both conduct used to acquire a monopoly unlawfully and conduct used to maintain a monopoly unlawfully. (6)īut, as the second element makes clear, "the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct." (7) Such conduct often is described as "exclusionary" or "predatory" conduct. Regarding the first element, it is "settled law" that the offense of monopolization requires "the possession of monopoly power in the relevant market." (5) As discussed in chapter 2, monopoly power means substantial market power that is durable rather than fleeting-market power being the ability to raise prices profitability above those that would be charged in a competitive market. Monopolization requires (1) monopoly power and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. The long-standing requirement for monopolization is both "(1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." (4) (3)Īt its core, section 2 makes it illegal to acquire or maintain monopoly power through improper means. Section 2 establishes three offenses, commonly termed "monopolization," "attempted monopolization," and "conspiracy to monopolize." (2) Although this report and most of the legal and economic debate focus specifically on the two forms of monopolization-monopoly acquisition and monopoly maintenance-much of the discussion applies to the attempt offense as well. Section 2 of the Sherman Act makes it unlawful for any person to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations. Part III identifies key enforcement principles that flow from the U.S. Part II discusses the purpose of section 2 and the important role it plays in U.S. Part I describes the elements of the primary section 2 offenses-monopolization and attempted monopolization. This chapter provides an overview of section 2 and its application to single-firm conduct. Return to Table of Contents Chapter 1 - SINGLE-FIRM CONDUCT AND SECTION 2 Update: Justice Department Withdraws Report on Antitrust Monopoly Law ()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |