Section 2 of the Sherman Act and associated monopolization law play
an important role in promoting competitive markets by policing
anticompetitive unilateral conduct by dominant firms. More specifically,
Section 2 makes it an offense 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. . . .”1 When interpreting this statutory language, it has become
axiomatic under modern U.S. law that mere possession of a monopoly or
dominant position is not unlawful. In 1966, the Supreme Court laid out the
modern framework for applying Section 2 in United States v. Grinnell
The offense of monopoly under § 2 of the Sherman Act has two
elements: (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
Accordingly, to violate Section 2 a dominant firm needs to employ
anticompetitive conduct that either led to the monopoly position or
somehow keeps or extends it in an unlawful way, rather than securing its
dominance by winning (or continuing to win) on the merits by supplying
a preferred product or service offering.4 In particular, the Supreme Court
recognizes that the application of Section 2 should not “dampen the
1. 15 U.S.C. § 2.
2. 384 U.S. 563 (1966).
3. Id. at 570.
4. See, e.g., United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir.
2001) (en banc) (per curiam); Pacific Bell Tel. Co. v. linkLine Commc’ns,
129 S. Ct. 1109, 1118 (2009); Allied Orthopedic Appliances Inc. v. Ty co
Health Care Grp. LP, 592 F.3d 991, 998-1000 (9th Cir. 2010).

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