Chapter III Mergers and Acquisitions
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MONOPOLIZATION AND RELATED OFFENSES
Many civil monopolization cases in 2022 involved challenges to
technology platforms, including Google, Amazon, Facebook, and Apple,
although most of these matters remain ongoing, without any major
resolutions or appellate decisions. One major development moving
monopolization law forward in 2022 was the Department of Justice’s
(DOJ) delivery on its threat to bring a criminal Section 2 case.1 For the
first time in over four decades, the DOJ brought a criminal Section 2 claim
for attempted monopolization against an individual who proposed an
unconsummated market allocation.
Definition of the Relevant Market
While adherents to Neo-Brandeisian theories of antitrust place less
emphasis on dogmatic concepts like market definition,2 courts continue to
hold that defining a relevant product market is a threshold requirement in
1. Dep’t of Justice, Assistant Attorney General Jonathan Kanter Delivers
Opening Remarks at 2022 Spring Enforcers Summit (Apr. 4, 2022),
available at https://www.justice.gov/opa/speech/assistant-attorney-
general-jonathan-kanter-delivers-opening-remarks-2022-spring-enforcers
(announcing that the DOJ “will aggressively pursue enforcement of the
criminal antitrust laws to protect consumers, workers and businesses
harmed by unlawful collusion and monopolization”).
2 Dep’t of Justice, Assistant Attorney General Jonathan Kanter Delivers
Remarks on Modernizing Merger Guidelines (Jan. 18, 2022), available at
https://www.justice.gov/opa/speech/assistant-attorney-general-jonathan-
kanter-delivers-remarks-modernizing-merger-guidelines (“In a dynamic,
multi-dimensional economy, the static formalism of market definition may
not always be the most reliable tool for assessing the potential harms of
mergers.”).
50 2022 Annual Review of Antitrust Law Development
Section 2 cases.3 The boundaries of a relevant product market are
determined principally by the reasonable interchangeability of use of the
products; products that are reasonably interchangeable in use generally
compete with each other and are thus part of the same market.4 To assess
interchangeability, courts will look at the cross-elasticity of demand—the
rate at which consumers will switch to one product in response to a price
increase in another product.5
At the pleadings stage, a plaintiff’s relevant market allegations must
be “plausible,” and “must bear a rational relation to the methodology
courts prescribe to define a market for antitrust purposes—analysis of
interchangeability of use or the elasticity of demand.”6 The Ninth Circuit,
3. See, e.g., Comprehensive Sec. v. Metro. Gov’t of Nashville & Davidson
Cnty., 2022 U.S. App. LEXIS 6050, at *4 (6th Cir. 2022) (observing that
defining a relevant market is a “threshold inquiry” for both monopolization
and attempted monopolization claims).
4. See US Airways v. Sabre Holdings Corp., 2022 U.S. Dist. LEXIS 53622
(S.D.N.Y. 2022) (denying summary judgment because court found genuine
factual dispute over whether defendants’ global distribution system was
interchangeable with other such systems). But see Uhlig LLC v.
CoreLogic, Inc., 2022 U.S. Dist. LEXIS 179886, at *20 (D. Kan. 2022)
(dismissing complaint because the alleged market definition was
“underinclusive” and “fail[ed] to include competitive substitutes”).
5. See Witches Brew Tours v. New Orleans Archdiocesan Cemeteries, 2022
U.S. Dist. LEXIS 149827, at *20, *28 (E.D. La. 2022) (dismissing
complaint that was devoid of allegations concerning the extent to which
defendants’ tour was interchangeable in use, or the degree of cross-
elasticity of demand with other products); Rebotix Repair, LLC v. Intuitive
Surgical, 2022 U.S. Dist. LEXIS 142861, at *35-36 (M.D. Fla. 2022)
(denying summary judgment because there was a genuine dispute of
material fact over whether repair and replacement of surgical robots has
separate demand and is a separate product from the surgical robots
themselves).
(finding plaintiffs adequately alleged a social network market was a
submarket of the social media market based on price, use, and other
qualities); see also Caccuri v. Sony Interactive Ent., 2022 U.S. Dist. LEXIS
125848, at *11 (N.D. Cal. 2022) (denying motion to dismiss because
plaintiffs plausibly alleged a single brand aftermarket theory for games that
can be played on the PlayStation console); Philips N. Am. LLC v.
Advanced Imaging Servs., 2022 U.S. Dist. LEXIS 71283, at *8-10 (E.D.
Cal. 2022) (denying motion to dismiss because plaintiff plausibly alleged
that there was a distinct product market for companies that service Philips’s
CT and MRI machines because service for Philips’s equipment is not
Monopolization and Related Offenses 51
in Dreamstime.com v. Google LLC,7 however, found the plaintiff’s
complaint to be insufficient because the “online search advertising”
market named in the complaint was not the one in which alleged
anticompetitive conduct occurred. On appeal, the plaintiff challenged the
district court’s finding that the online search advertising market was the
sole relevant market, arguing that “online, organic search” was also a
relevant market.8 The Ninth Circuit found that the district court repeatedly
offered the plaintiff the opportunity to define the relevant market as
including the online search market and, “at every turn, [the plaintiff]
expressly disavowed any intent to do so.”9
The Sixth Circuit affirmed the dismissal of Section 2 claims following
a bench trial in Comprehensive Security v. Metropolitan Government of
Nashville & Davidson County10 because the plaintiffs did not establish a
relevant product market. Specifically, the plaintiffs failed to adduce
evidence through expert witness testimony identifying what services were
sold by the defendant, what the market concentration was, or what the
individual market shares of sales were. The court concluded that these
were “core inquiries for the market analysis” under the Supreme Court’s
seminal decision on product market definition in Brown Shoe Co. v. United
States.11
In addition to establishing a relevant product market, a traditional
Section 2 case analysis requires the plaintiff to establish a relevant
geographic market, i.e., all physical territories in which actual or potential
producers are located and to which customers can reasonably turn for
sources of supply.12 To determine the scope of the relevant geographic
interchangeable with other manufacturers’ service); AliveCor, Inc. v.
dismiss in part because AliveCor plausibly alleged an aftermarket in
Apple’s watchOS heart rate analysis market); Frame-Wilson v.
motion to dismiss because plaintiffs plausibly alleged that the retail e-
commerce market was a facially sustainable submarket, recognized in the
U.S. retail market by government agencies, economists, customers, and
retailers).
7. 54 F.4th 1130, 1140 (9th Cir. 2022).
8. Id. at 1138.
9. Id.
10. 2022 U.S. App. LEXIS 6050, at *14-15 (6th Cir. 2022).
11. Id. (citing Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962)).
(N.D. Cal. 2022).
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