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Joseph Angland, Oct 1, 2008
A key element in a claim for actual or attempted monopolization is that the defendant used improper means to acquire, maintain, or attempt to acquire monopoly power. The cases use a plethora of adjectives to describe this improper behavior including “exclusionary,” “predatory,” and “anticompetitive” but do not provide a general, workable definition that distinguishes the behavior that Section 2 of the Sherman Act condemns from that which it tolerates or even encourages. The cases provide several rules that permit the evaluation of particular types of conduct (e.g., predatory pricing), but they do not articulate an overarching theory that reconciles these conduct-specific rules, informs how they should be applied, and governs the lacunae where no such rule applies. To some legal and economic commentators, the articulation of an all embracing rule that defines exclusionary conduct has become the Holy Grail of antitrust law, or at least of Section 2. Thoughtful articles have advocated myriad competing tests, but no test has emerged as a consensus choice. Moreover, equally thoughtful commentators have suggested that different species of conduct should not all be governed by the same test for distinguishing the exclusionary from the benign. Given this background, the position that the Department of Justice (“DOJ”) would take on this issue was eagerly awaited especially because many of the strongest advocates of the competing tests participated in the hearings that culminated in the DOJ’s recent report.
