Section 2 of The Sherman Act

Chapter 3
A. Monopolization—General
1. Instruction 1: Elements
Plaintiff alleges that it was injured by defendant’s unlawful
monopolization of the [describe relevant market at issue]. To prevail on
this claim, plaintiff must prove each of the following elements by a
preponderance of the evidence:
(1) the alleged market is a valid antitrust market;
(2) defendant possessed monopoly power in that market;
(3) defendant willfully acquired or maintained monopoly power in
that market by engaging in anticompetitive conduct;
(4) defendant’s conduct occurred in or affected interstate [or foreign]
commerce; and
(5) plaintiff was injured in its business or property because of
defendant’s anticompetitive conduct.
If you find that plaintiff has failed to prove any of these elements, then
you must find for defendant and against plaintiff on this claim. If you find
that plaintiff has proved each of these elements by a preponderance of the
evidence, then you must find for plaintiff against defendant on this claim.
Interstate Commerce, Chapter I.D.
Injury and Causation, Chapter VI.A.1
Business or Property, Chapter VI.A.2
See generally Pacific Bell Tel. Co. v. linkLine Commc’ns., 555 U.S. 438
(2009); Verizon Commc’ns. v. Law Offices of Curtis V. Trinko, 540 U.S. 398
Section 2 of the Sherman Act 103
(2004); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977);
United States v. Grinnell Corp., 384 U.S. 563 (1966); LePage’s Inc. v. 3M, 324
F.3d 141 (3d Cir. 2003) (en banc); United States v. Microsoft Corp., 253 F.3d 34
(D.C. Cir. 2001).
The third element of this instruction uses the term “anticompetitive cond uct.”
Some cases have used other terminology, such as “predatory,” “restrictive,” or
“exclusionary” conduct. Although those other terms may be appropriate in certain
cases, and should be used where appropriate, the term “anticompetitive conduct”
is the most broadly applicable and least confusing term to describe the conduct
that is necessary for a violation of Section 2. See, e.g., Trinko, 540 U.S. at 407
(“[T]he possession of monopoly power will not be found unlawful unless it is
accompanied by an element of anticompetitive conduct.”).
104 Model Jury Instructions in Civil Antitrust Cases
2. Instruction 2: Monopoly Power Defined
To prove its monopolization claim, plaintiff must prove that defendant
has monopoly power in a relevant antitrust market.1 Monopoly power is
the power to control prices, restrict output, and exclude competition in a
relevant antitrust market.2 More precisely, a firm is a monopolist if it can
profitably raise prices substantially above the competitive level for a
significant period of time.3 However, possession of monopoly power, in
and of itself, is not unlawful.4
I will provide further instructions about how you may determine
whether plaintiff has met its burden of proving monopoly power in a
relevant market.
1. These instructions require plaintiff to establish monopoly power within
the context of a defined market. However, some courts have stated that the
requirement of a clearly defined relevant market may not apply where monopoly
power is proven through direct evidence, and where applicable the instructions
may be modified accordingly. See part A.3 (Relevant MarketGeneral) of this
2. See Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585,
595-96 (1985); United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377,
389 (1956). Although a number of courts have stated the test for determining
market power in the disjunctive (i.e., the power to control prices or exclude
competition), see, e.g., Am. Council of Certified Podiatric Physicians & Surgeons
v. Am. Bd. of Podiatric Surgery, 323 F.3d 366, 372 (6th Cir. 2003); PepsiCo, Inc.
v. Coca-Cola Co., 315 F.3d 101, 107 (2d Cir. 2002); Conwood Co. v. U.S.
Tobacco Co., 290 F.3d 768, 782 (6th Cir. 2002); United States v. Microsoft Corp.,
253 F.3d 34, 51 (D.C. Cir. 2001), some courts have suggested monopoly power
requires the ability to control prices and exclude competition, see 1 ABA SECTION
2012) [hereinafter ALD]. For example, the Tenth Circuit requires that plaintiff
establish both prongs of the test. See, e.g., City of Chanute v. Williams Natural
Gas Co., 955 F.2d 641, 654 (10th Cir. 1992), overruled on other grounds by
Systemcare, Inc. v. Wang Labs. Corp., 117 F.3d 1137, 1145 (10th Cir. 1997);
Shoppin’ Bag of Pueblo, Inc. v. Dillon Cos., 783 F.2d 159, 164 (10th Cir. 1986).
As a practical matter, the ability to control prices ultimately depends on the
absence of meaningful competition. ALD, supra note 2, at 229-237; see also du
Pont, 351 U.S. at 392 (“Price and competition are so intimately entwined that any
discussion of theory must treat them as one. It is inconceivable that price could be
controlled without power over competition or vice versa.”). Consequently, this
instruction adopts the conjunctive formation and places the focus on the ability to

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