Attempts and conspiracies

Section 2 of the Sherman Act forbids “attempts to monoplize”
In the American Tobacco case, the Supreme Court interprets this to mean ``employment of methods, means and practices which would, if successful, accomplish monopolization, and which through falling short, nevertheless approach so close as to create a dangerous probability of it”
That is, doing the following two things together is illegal
1. Exhibiting an intent to monopolize
2. Being dangerously close to monopolization
To show this, a plaintiff is required to prove three things
1. The defendent engaged in anticompetitive behavior
2. The defendant had specific intent to monopolize
3. The defendant has a high probability of achieving monopoly power

To show specific intent, the plaintiff must show the defendant’s behavior was meant to control the price in a relevant market, or exclude others from the market
- This behavior is sometimes hard to separate from normal business practices
Consider Union Leader Corp. v. Newspapers of New England (1959)
- In this case, the relevant market was only big enough for a single firm
- The firms in this market were trying to survive competition, not necessarily monopolize
- The courts ruled that competitive superiority resulting in monopolization is not an antitrust violation
The courts believed antitrust law should not “dampen the competitive zeal”
- Antitrust law protects the competitive process, not the competitors

Section 2 of the Sherman Act forbids attempts of two or more persons from conspiring to monopolize a market
To prove an illegal conspiracy to monopolize, two criteria must be met
1. Two or more persons took concerted actions with a specific intent to monoplize the market
2. These persons made at least one overt act in furtherance of the illegal scheme
Technically, the actions need not be successful
- In practice, antitrust enforcers don’t care about unsuccessful actions

To prosecute firms for attempts (conspiracies) to monopolize, the courts must determine if a firm in the relevant market has a dangerous probability of successfully acquiring monopoly power
The courts look at four factors
1. The relative size of the firm in question, in terms of its market share
2. The structure of the industry
3. The firm’s conduct and business practices
4. The performance of the firm and industry
Generally, the courts do not find a dangerous probability for a firm with less than 30% market share, and seldom find it for a firm with 30-50% market share