Attempt to Monopolize and Conspiracy to Monopolize

Section 2 of the Sherman Act reaches beyond the offense of ordinary
monopolization to prohibit both attempts and conspiracies to monopolize.1
Just as Section 2 does not specify specific types of unlawful
monopolization conduct, “[n]either the statutory text nor the legislative
history [of the Sherman Act] is particularly illuminating” as to what
constitutes an attempt or conspiracy to monopolize.2 Faced with this lack
of guidance, the first judges charged with giving meaning to Sherman Act
claims imported the concepts of “attempt” and “conspiracy” from criminal
law.3 This chapter sets forth the elements of attempted monopolization and
conspiracy to monopolize and examines how other countries have
grappled with similar types of claims.
A. Attempt to Monopolize
In Spectrum Sports v. McQuillan , the Supreme Court’s most recent
opportunity to consider allegations of attempted monopolization, the
Court held that to establish a claim for attempt to monopolize, the plaintiff
must demonstrate that (1) the defendant has engaged in predatory or
anticompetitive conduct4 with (2) a specific intent to monopolize and (3)
a dangerous probability of achieving monopoly power in a relevant
1. 15 U.S.C. § 2.
(3d ed. 2008).
3. See Michael D. Paley, Prosecuting Failed Attempts to Fix Prices as
Violations of the Mail and Wire Fraud Statutes: Elliot Ness Is Back!, 73
WASH. U. L.Q. 333, 343 (1995) (“In deciding cases of attempted
monopolization, courts frequently look to general principles of criminal
attempt law.”).
4. The phrase “predatory or anticompetitive” is used here because this is the
phrase that courts use to identify the first element of attempt to monopolize,
but this terminology should not be viewed as a substantive categorization.
208 Monopolization and Dominance Handbook
market.5 The Court in Spectrum Sports resolved much confusion in lower
courts regarding whether a plaintiff was required to establish that the
defendant must have had a dangerous probability of achieving monopoly
power in a properly-defined relevant market, with the Court firmly holding
that a dangerous probability of success and the definition of a relevant
market are essential elements of an attempted monopolization claim.6
The elements of attempted monopolization trace their origins to
Justice Holmes’ opinion in Swift & Co. v. United States.7 In Swift & Co.,
the defendants—who comprised approximately sixty percent of
corporations, firms, and individuals purchasing livestock and selling fresh
meat in the United States—were charged with attempting to monopolize
the market for fresh meat. On appeal, the defendants argued that the
charges should be dismissed, in part because several of the constituent acts
were lawful regardless of the defendants’ intent.8 The Supreme Court
disagreed, reasoning that:
5. See Spectrum Sports v. McQuillan, 506 U.S. 447, 456 (1993); Christy
Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir.
2009); Broadcom Corp. v. Qualcomm, Inc., 501 F.3d 297, 317 (3d Cir.
2007); HDC Medical, Inc. v. Minnetech Corp., 474 F.3d 543, 549 (8th Cir.
2007); Heerwagen v. Clear Channel Commc’ns, 435 F.3d 219, 227 (2d Cir.
2006); Spirit Airlines v. Northwest Airlines, 431 F.3d 917, 932 (6th Cir.
2005); Spanish Broad. Sys. of Fla. v. Clear Channel Commc’ns, 376 F.3d
1065, 1074 (11th Cir. 2004); In re Microsoft Corp. Antitrust Litig., 333
F.3d 517, 534 (4th Cir. 2003); Paladin Assocs. v. Montana Power Co., 328
F.3d 1145, 1163 n.22 (9th Cir. 2003); United States v. Microsoft Corp.,
253 F.3d 34, 80 (D.C. Cir. 2001) (en banc) (per curiam); Queen City Pizza
v. Domino’s Pizza, 124 F.3d 430, 442 (3d Cir. 1997); Abcor Corp. v. AM
Int’l, 916 F.2d 924, 926 (4th Cir. 1990); H.J., Inc. v. Int’l Tel. & Tel. Corp.,
867 F.2d 1531, 1540-41 (8th Cir. 1989); H.L. Hayden Co. of N.Y. v.
Siemens Med. Sys., 879 F.2d 1005, 1017 (2d Cir. 1989); Col. Interstate
Gas Co. v. Nat. Gas Pipeline Co. of Am., 885 F.2d 683, 693 (10th Cir.
1989); Int’l Dist. Ctrs. v. Walsh Trucking Co., 812 F.2d 786, 790 (2d Cir.
1987); Great Escape, Inc. v. Union City Body Co., 791 F.2d 532, 540 (7th
Cir. 1986); Transam. Computer Co. v. IBM, 698 F.2d 1377, 1382 (9th Cir.
6. 3B AREEDA & HOVENKAMP, supra note 2, ¶ 807(b).
7. 196 U.S. 375 (1905).
8. Id. at 395.

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