Attempts to Monopolize

• Author: Barry E. Hawk
• DOI: 10.1177/0003603X17735196
• Published date: 01 December 2017
• Date: 01 December 2017
• Subject Matter: Articles

Article

Attempts to Monopolize:

An American Anomaly

Barry E. Hawk*

Abstract

Laws, like gardens, need occasional pruning to remove doctrinal clutter and costly weeds. The

attempt to monopolize provision of Section 2 of the Sherman Act is a prime candidate for pruning

and should be repealed. The decriminalization of Section 2 makes the attempt to monopolize

provision no longer appropriate. The attempt provision fills no important gap in antitrust

enforcement and generates unnecessary and significant costs and doctrinal complexities that burden

litigation. So long as the attempt to monopolize provision remains in place, courts should discard

specific intent as an element of the claim. “Specific intent” is incoherent, confusing, potentially

prejudicial, and an unnecessary legal fiction. It erroneously suggests to the factfinder that an intention

to gain monopoly p ower itself make s the challenged c onduct an unlawfu l attempt to monop olize.

Evidence of subjective intention (state of mind) should be admissible only as relevant to a specific

material issue such as the legitimacy of asserted business justifications or competitive effects. The

probative weight of evidence of intent or state of mind should be limited to the issue for which it was

admitted.

Keywords

attempts to monopolize, specific intent, intent, monopolization

Section 2 of the Sherman Act prohibits actual monopolization, attempt to monopolize and conspiracy

to monopolize. In 1890, all three were made criminal offenses as well as civil violations. In Spectrum

Sports, the Court enunciated three requirements for proof of attempt to monopolize: (1) 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

The attempt to monopolize provision is an anomaly in the competition law world. The actual

monopolization provision of Section 2 has the commonly found foreign analogue of prohibition of

*

School of Law, Fordham University, New York, NY, USA

Corresponding Author:

Barry E. Hawk, 35 Eagle Mountain Road, Tuxedo Park, NY 10987, USA.

Email: bhawk1@law.fordham.edu

1. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993).

The Antitrust Bulletin

2017, Vol. 62(4) 815-844

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abuse of a dominant position like Article 102 of the Treaty on the Functioning of the European Union.

Generally speaking, Section 2 actual monopolization and statutes like Article 102 require monopoly

power or a dominant position plus monopolizing/abusive conduct.

2

But very few analogues to Section

2’s attempt to monopolize provision are found among the over 100 jurisdictions with antitrust or

competition laws.

3

Neither the most prevalent law regulating unilateral dominant fir m conduct—

Article 102 of the EU Treaty—nor its numerous clones throughout the world prohibit attempts to

acquire a dominant position or to abuse a dominant position.

4

Failure to adopt a law prohibiting an

attempt to acquire or abuse a dominant position is a wise decision.

This article is structured around three sets of conclusions:

I. The attempt to monopolize provision should be legislatively repealed. The decriminalization

of Section 2 makes the attempt to monopolize provision no longer appropriate. The attempt

provision fills no important gap in antitrust enforcement and generates unnecessary and sig-

nificant costs and doctrinal complexities that burden litigation.

II. So long as the attempt to monopolize provision remains in place, courts should discard specific

intent as an element of the claim.

A. Modern criminal law principles fail to support a specific intent requirement.

B. “Specific intent” is incoherent, confusing, potentially prejudicial, and an unnecessary

legal fiction. It erroneously suggests to the factfinder that an intention to gain monopoly

power itself makes the challenged conduct an unlawful attempt to monopolize. It is an

unnecessary legal fiction that distracts attention away from the gravamen of the inquiry:

evaluation of conduct.

C. Specific intent aggravates the doctrinal uncertainties under Section 2 that arise from the

difficulty of distinguishing lawful business conduct and unlawful business conduct. The

standard for attempted monopolization should correlate with the completed offense of

actual monopolization: “anticompetitive” conduct plus significant but less than monopoly

power market power (“dangerous probability”).

III. Evidence of subjective intent (sta te of mind) should be admissible only as relevant to a

specific material issue such as the legitimacy of asserted business justifications or competitive

effects. The probative weight of evidence of intent or state of mind should be limited to the

issue for which it was admitted. With elimination of specific intent as an element of the

attempt to monopolize claim, evidence of intent should not be admitted unanchored to a

specific material issue.

2. Hawk, Article 82 and Section 2: Abuse and Monopolizing Conduct,in 2ISSUES IN COMPETITION LAW &POLICY 871 (Wayne D.

Collins ed., 2008). Section 2 and its foreign counterparts are not identical in scope. For example, one difference between

Section 2 actual monopolization and the EU Article 102 is that Section 2 prohibits the acquisition of monopoly power in

certain cases and Article 102 does not.

3. Some jurisdictions like the EU require considerably less market power for a dominant position than is required under Section

2 actual monopolization. In this way they can reach abusive unilateral conduct tha t falls under Section 2’s attempt to

monopolize provision. In a similar vein, the ICN recommendation on unilateral conduct speaks in terms of proof of

substantial market power and not dominance.

4. A few foreign jurisdictions like Russia do prohibit attempts to monopolize or abuse a dominant position. Other jurisdictions

regulate unilateral conduct by firms lacking dominance or monopoly power under other competition laws like bans on

restrictive practices or under noncompetition laws.

816 The Antitrust Bulletin 62(4)