Monopoly Power

Having reviewed the economic principles and methods used to
analyze market power, Chapter III turns to how courts have approached
the same issues in creating legal standards for unlawful monopolization
practices. Chapter III begins with a discussion of how courts have defined
possession of “monopoly power” as an element of monopolization law.
The chapter next examines the difference between market power in an
economic sense and monopoly power, as well as how courts identify the
existence of monopoly power by defining a relevant market and examining
other evidence. Finally, Chapter III concludes with a discussion of how
courts have evaluated buyer-side monopoly power: monopsony power.
A. Monopoly Power as a Legal Requirement
Section 2 of the Sherman Act prohibits three types of conduct:
monopolization, attempts to monopolize, and conspiracies or
combinations to monopolize.1 Common to all Section 2 claims is a
consideration of whether a party has (or will have) “monopoly power,”
which the courts have defined as “the power to control prices or exclude
1. 15 U.S.C. § 2 (“Every person who shall 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, shall be deemed guilty of a felony . . .”).
2. See United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391
LAW DEVELOPMENTS 223-24 (8th ed. 2017) [hereinafter ALD8]
(collecting cases). See Chapters IV and VI for further discussion of
monopoly power as an essential element of the § 2 offenses of
monopolization and attempt to monopolize, respectively. See also ABA
44 Monopolization and Dominance Handbook
The specific role of monopoly power in each of these Section 2
offenses is discussed below.
1. Monopolization
To prevail on a monopolization claim, a plaintiff must show “the
possession of monopoly power in the relevant market . . . accompanied by
an element of anticompetitive conduct.”3 In other words, a defendant must
not only possess monopoly power, but also must have acquired or
maintained that power through anticompetitive means.
2. Attempt to Monopolize
Monopoly power also plays a significant role in attempted
monopolization claims under Section 2. A plaintiff must show three
elements to prevail on an attempted monopolization claim: “(1) that 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.”4 Monopoly power is typically analyzed as part of the
third element, and while the methods of establishing a probability of
achieving monopoly power are the same as in a case of actual
3. Verizon Commc’ns v. Law Offices of Curtis V. Trinko, 54 0 U.S. 398, 407
(2004) (emphasis omitted) (citing United States v. Grinnell Corp., 384 U.S.
563, 570-71 (1966)). Courts have also required some causal connection
between the alleged anticompetitive conduct and the antitrust injury. See,
e.g., Austin v. McNamara, 979 F.2d 728, 739 (9th Cir. 1992) (noting
plaintiff must prove “defendants’ (1) possession of monopoly power in a
relevant market; (2) willful acquisition or maintenance (‘use’) of that
power; and (3) causal antitrust injury.”) (internal quotations omitted).
4. Spectrum Sports v. McQuillan, 506 U.S. 447, 456 (1993); see also ALD8,
supra note 2, at 325 (citing Duty Free Ams., Inc. v. Estée Lauder Cos., 797
F.3d 1248, 1263 (11th Cir. 2015); Kolon Indus. v. E.I. du Pont de Nemours
& Co., 748 F.3d 160, 177 (4th Cir. 2014); Díaz Aviation Corp . v. Airport
Aviation Servs., 716 F.3d 256, 265 (1st Cir. 2013); Mercatus Grp. v. Lake
Forest Hosp., 641 F.3d 834, 854 (7th Cir. 2011)). A plaintiff must also have
suffered “antitrust injury” as a result of the defendant’s alleged
misconduct. See, e.g., Schuylkill Energy Res. v. Pa. Power & Light, 113
F.3d 405, 414 n.9 (3d Cir. 1997) (“[W]hen an antitrust defendant’s conduct
cannot be linked to antitrust injury, the fact that the conduct may be
otherwise undesirable is not a concern of the antitrust laws.”).

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