(91), In structuring a legal regime, it is important to consider the practical consequences of the regime and the relative magnitude and frequency of the different types of errors. . 509 U.S. 209, 222, 224 (1993). 295, 306 (arguing that "a monopolist has no incentive to support technological innovation that could undermine its dominant position in the market" and "having sunk investments in existing technology, it may well delay or refuse to pursue work on new technology until it has accounted for its past investments"); cf. Olympia Equip. See 2B Phillip E. Areeda et al., Antitrust Law ¶ 402 (3d ed. "); Frank H. Easterbrook, Vertical Arrangements and the Rule of Reason, 53 Antitrust L.J. 11. Leasing Co. v. W. Union Tel. "); Thomas E. Kauper, Section Two of the Sherman Act: The Search for Standards, 93 Geo. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 223 (1993). "); Mark S. Popofsky, Defining Exclusionary Conduct: Section 2, the Rule of Reason, and the Unifying Principle Underlying Antitrust Rules, 73 Antitrust L.J. "); Section of Antitrust Law, supra note 2, at 312­17 (cataloging factors considered by courts, including, most importantly, market share and barriers to entry). (12) Conduct that is legal for a monopolist is also legal for an aspiring monopolist. Building on Matsushita,(100) the Court in Brooke Group laid out a two-pronged, objective test for evaluating predatory-pricing claims. Co. v. United States, 356 U.S. 1, 4 (1958). Accordingly, mere harm to competitors is not a basis for antitrust liability. Courts should prize and encourage it. 27. L. Rev. The aggregate voting totals for the twelve antitrust cases decided over the past decade show ninety-one votes in favor of the judgment and only thirteen in dissent. Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 234 (1st Cir. . 75. which is heavily motivated by such an intent." (52) From the seminal case against Standard Oil in 1911,(53) through litigation resulting in the break-up of AT&T,(54) to the present-day enforcement in high-technology industries with the Microsoft case,(55) government enforcement of section 2 has benefitted U.S. consumers. 345, 345. (67) The Court explained that a Sherman Act "plaintiff . Share this: Transactions With Persons Other Than Clients. . Protection of Competition, Not Competitors, The focus on protecting the competitive process has special significance in distinguishing between lawful and unlawful unilateral conduct. Official websites use .gov Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004). 3-B Observance of Government’s policies Principles that Have Guided the Evolution of Section 2 Standards and Enforcement. (Salop) ("Monopolists have weaker innovation incentives than competitors. The long-standing requirement for monopolization is both "(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. . Prohibiting the mere possession of monopoly power is inconsistent with harnessing the competitive process to achieve economic growth. 103. 36. (98) Rules of per se illegality are not designed to achieve perfection; to the contrary, courts explicitly acknowledge the potential that they could from time to time penalize conduct that does not in fact harm consumer welfare, but the rule is nonetheless warranted so long as false positives are sufficiently rare and procompetitive benefits from conduct deterred by the rules are sufficiently small. 1623, 1623 (2005) ("Over its 114-year history, Section Two of the Sherman Act has been a source of puzzlement to lawyers, judges and scholars, a puzzlement derived in large part from the statute's extraordinary brevity." . There also are examples of conduct that is clearly legitimate, as when a firm introduces a new product that is simply better than its competitors' offerings. Standards of section 2 liability that underdeter not only shelter a single firm's exclusionary conduct, but also "empower other dominant firms to adopt the same strategy. United States v. AT&T, 552 F. Supp. 57. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993); United States v. Grinnell, 384 U.S. 563, 570­71 (1966). . 22. 1995) ("[T]he minimum showing of market share required in an attempt case is a lower quantum than the minimum showing required in an actual monopolization case. "); June 20 Hr'g Tr., supra note 29, at 29 (Barnett) ("The difficulty lies in cases . The big problem lies in this: competitive and exclusionary conduct look alike. (14), Specific intent to monopolize does not mean "an intent to compete vigorously;"(15) rather, it entails "a specific intent to destroy competition or build monopoly. But see May 1 Hr'g Tr., supra note 83, at 89 (Jacobson) (maintaining that false positives are more ephemeral than commonly suggested); id. The review focused on how well the rules had already been embraced by banks, but the FCA said the findings also apply to all solo-regulated firms which will be coming into the regime in December - including advice firms. The Purpose of Section 2 and Its Important Role in Sound Antitrust Enforcement. 9. . Because agency resources are finite, it is important to exercise enforcement discretion to best promote consumer welfare. at 458 (stating that "this Court and other courts have been careful to avoid constructions of § 2 which might chill competition, rather than foster it"); Matsushita Elec. Section 2 of the Sherman Act makes it unlawful for any person 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 . Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993). "(44), Assaults on the Competitive Process Should Be Condemned. 1247, 1249 (2005) ("In the vast majority of cases, exclusion is the result of conduct that has both efficiency properties and the tendency to exclude rivals."). . at 605 n.32 ("'[E]xclusionary' comprehends at the most behavior that not only (1) tends to impair the opportunities of rivals, but also (2) either does not further competition on the merits or does so in an unnecessarily restrictive way." Competition spurs companies to reduce costs, improve the quality of their products, invent new products, educate consumers, and engage in a wide range of other activity that benefits consumer welfare. The mere possession or exercise of monopoly power is not an offense; the law addresses only the anticompetitive acquisition or maintenance of such power (and certain related attempts). 13. . 70. very poorly defined"); July 18 Hr'g Tr., supra note 49, at 21 (Pitofsky) (identifying "the definition of exclusion under Section 2 . 5. Experience with section 2 enforcement teaches the importance of correctly distinguishing between aggressive competition and actions that exclude rivals and harm the competitive process. No part of this publication may be reproduced or used in any form without prior permission in writing from the editor. It is a vexing area, however, given that competitive conduct and exclusionary conduct often look alike. "); Areeda et al., supra note 27, ¶ 407; Peter C. Carstensen, False Positives in Identifying Liability for Exclusionary Conduct: Conceptual Error, Business Reality, and Aspen, 2008 Wis. L. Rev. 99. 15 U.S.C. 80. It is essential that staff understand the rules and how they apply to them.". /content/aba-cms-dotorg/en/groups/professional_responsibility/publications/model_code_of_judicial_conduct/model_code_of_judicial_conduct_canon_2/rule2_11disqualification. Its framers left the statute's centerpiece--what it means to "monopolize"--undefined, and the statutory language offers no further guidance in identifying prohibited conduct. See generally Trinko, 540 U.S. at 414 ("The cost of false positives counsels against an undue expansion of § 2 liability. . 34. Acquiring or maintaining monopoly power through assaults on the competitive process harms consumers and is to be condemned. § 2 (2000); see also 3 Areeda & Hovenkamp, supra note 14, ¶ 632, at 49 ("[T]he question whether judicial intervention under §2 requires more than monopoly is not answered by the words of the statute.

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