31
CHAPTER II
MONOPOLIZATION AND RELATED OFFENSES
A. Introduction
This Chapter discusses a number of decisions involving Sherman Act
Section 2 and related monopolization claims. Section 2 enforcement
continues to be a notable focus of government and private litigation, and a
number of significant rulings have issued over the course of 2024
addressing the framework for evaluating monopolization claims,
particularly with respect to digital technology platforms.
B. Monopoly Power
To establish claims under Section 2 of the Sherman Act, a plaintiff
must prove both possession of monopoly power in a relevant market and
anticompetitive conduct.1 The standards for proving monopoly power are
well-established, as the court stated in the widely anticipated United States
v. Google LLC (Search) decision.2 Monopoly power can be proven
through direct evidence, that is, evidence establishing that an entity has the
power to “control prices or exclude competition”3 or “profitably raise
prices substantially above the competitive level.”4 Such direct evidence,
however, is “rarely available.”5 And so, in most monopolization cases,
courts apply a “structural approach” to assessing whether a defendant
possesses monopoly power in a relevant market.6
1. FTC v. Amazon.com, Inc., 2024 U.S. Dist. LEXIS 185792, at *15 (W.D.
Wash. 2024) (citing Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 998 (9th
Cir. 2023)).
2. United States v. Google LLC, 2024 U.S. Dist. LEXIS 138798, at *228-29
(D.D.C. 2024).
3. United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391 (1956).
4. United States v. Microsoft corp., 253 F.3d 34, 51 (D.C. Cir. 2001).
5. Google, 2024 U.S. Dist. LEXIS 138798, at *228 (citing Microsoft, 253
F.3d at 51).
6. Google, 2024 U.S. Dist. LEXIS 138798, at *229.
32 2024 Annual Review of Antitrust Law Development
1. Definition of the Relevant Market
A relevant market is defined as “the area of effective competition,”7
and assessed based on whether products in the market are “reasonably
interchangeable by consumers for the same purpose.”8 Traditionally,
courts consider both “practical indicia,”9 as described by the Supreme
Court in Brown Shoe v. United States10 and quantitative factors11 to
determine whether proposed economic substitutes exist within the same
market.12
The court in United States v. Google LLC (Search) applied this
framework to assess whether the relevant market was, as the government
proposed—the “general search services” market—or, as Google
7. Id. (citing Ohio v. American Express Co., 585 U.S. 529, 543 (2018)).
8. Id. (citing Microsoft, 253 F.3d. at 52); see also FTC v. Meta Platforms,
Inc., 2024 U.S. Dist. LEXIS 205748, at *28-29 (D.D.C. 2024) (“Whether
products are ‘reasonably interchangeable’ with one another depends on
two factors: functional interchangeability—i.e., ‘whether buyers view
similar products as substitutes,’ [. . .]—and cross-elasticity of demand—
i.e., whether a slight increase in the price of one product causes a
considerable number of customers to switch to a different product.”
(citation omitted)).
9. These “practical indicia” include: “(1) industry or public recognition, (2)
the product’s peculiar characteristics and uses, (3) unique production
facilities, (4) distinct customers, (5) distinct prices, (6) sensitivity to price
changes, and (7) specialized vendors.” Google, 2024 U.S. Dist. LEXIS
138798, at *231 (citing Brown Shoe Co. v. United States, 370 U.S. 294,
325 (1962)). See also Meta Platforms, 2024 U.S. Dist. LEXIS 205748, at
*30 (“Because these Brown Shoe factors are simply ‘evidentiary proxies
for direct proof’ of substitutability and cross-elasticity of demand,
submarkets can exist even if only some of these factors are present.”
(cleaned up)).
11. As part of the market definition exercise, parties’ expert economists will
sometimes conduct a “hypothetical monopolist” test. The analysis focuses
on whether a hypothetical monopolist with control over certain products
“could profitably raise prices” for those products. If the answer is no, the
product that is the next-best substitute will be added to the market. Google,
2024 U.S. Dist. LEXIS 138798, at *232 (citing FTC v. Sysco, 113 F. Supp.
3d 1, 33 (D.C. Cir. 2015)).
12. See Meta Platforms, 2024 U.S. Dist. LEXIS 205748, at *33 (characterizing
the Brown Shoe factors as “old school antitrust law” that “nonetheless
‘bind[s] the court’” and analyzing the proposed market under those
factors).
