Introduction

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CHAPTER I

INTRODUCTION

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

Corp.2:

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

accident.3

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).