aftermarket constitutes a relevant product market separate from the market for the sale of the product.[1] If a hypothetical monopolist of an aftermarket (that is not a monopolist in the market for the product) could profitably raise prices above the competitive level by at least a small but significant and non-transitory amount, then competition from other aftermarket firms is not sufficient to prevent anticompetitive behavior in the aftermarket. Thus, it is sometimes appropriate to analyze competition in a separate relevant market comprising the aftermarket.
But in many situations, application of general principles of market definition leads to a conclusion that a relevant market is not limited to the product of a single manufacturer, which is consistent with the Supreme Court’s discussion of the issue. Rather, relevant product markets typically include the products of multiple manufacturers.[2] In a broader market, a single manufacturer’s market share may not be sufficient to establish monopoly power in the relevant market.
Anticompetitive conduct by a monopolist can take many forms.[3] Examples of potentially anticompetitive conduct described elsewhere as undermining competition from non-OEMs include refusals to deal, exclusive dealing, exclusionary design, and aggressive assertion of patent rights.[4] Conduct that can harm competition may fit into one or more categories,[5] but the underlying inquiry is whether the conduct harms consumers.[6]
While the Supreme Court recognizes that a monopolist’s refusal to deal with its rivals under narrowly circumscribed circumstances may constitute exclusionary conduct supporting a violation of Section 2,[7] the Court has cautioned against imposing antitrust liability on firms that would require them to do business with other companies, including rivals or potential rivals.[8]
- ↑ A relevant market includes all products “reasonably interchangeable by consumers for the same purposes.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395 (1956). The Supreme Court has defined monopoly power in a relevant market as “the power to control prices or exclude competition,” which can be shown through direct evidence or inferred where the defendant has a predominant share of a properly defined relevant market that is protected by entry barriers. See, e.g., United States v. Dentsply Int’l, Inc., 399 F.3d 181, 187 (3d Cir. 2005); Microsoft, 253 F.3d at 51.
- ↑ See, e.g., Town Sound & Custom Tops, Inc. v. Chrysler Motors, 959 F.2d. 468, 487–94 (3d Cir. 1992).
- ↑ The FTC has several pending cases challenging a variety of exclusionary conduct to maintain a monopoly in violation of the antitrust laws. See, e.g., FTC v. Surescripts, No. 19-1080 (D.D.C.) (complaint filed Apr. 17, 2019) (https://www.ftc.gov/system/files/documents/cases/surescripts_redacted_complaint_4-24-19.pdf); FTC et al. v. Vyera Pharmaceuticals, LLC et al., No. 20-706 (S.D.N.Y) (complaint filed Jan. 27, 2020; amended complaint filed Apr. 14, 2020) (https://www.ftc.gov/system/files/documents/cases/161_0001_vyera_amended_complaint.pdf); FTC v. Facebook, No. 1:20-cv-03590 (D.D.C.) (complaint filed Dec. 9, 2020) (https://www.ftc.gov/system/files/documents/cases/051_2021.01.21_revised_partially_redacted_complaint.pdf); FTC v. Endo Pharmaceuticals et al., No. 1:21-cv-00217 (D.D.C.) (complaint filed Jan. 25, 2021) (https://www.ftc.gov/system/files/documents/cases/redacted_complaint_0.pdf).
- ↑ See supra Section II and infra Section IV.
- ↑ Trinko, 540 U.S. at 414 (“the means of illicit exclusion, like the means of legitimate competition, are myriad.”) (internal quotes omitted).
- ↑ Microsoft, 253 F.3d at 58. See also Nynex Corp. v. Discon, Inc., 525 U.S. 128, 135 (1998) (plaintiffs “must allege and prove harm, not just to a single competitor, but to the competitive process, i.e., to competition itself.”).
- ↑ Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601–11 (1985); Otter Tail Power Co. v. United States, 410 U.S. 366, 378 (1973).
- ↑ Trinko, 540 U.S. at 400–11 (2004) (such limited exceptions reside “at or near the outer boundary of § 2 liability.”). See also United States v. Colgate & Co., 250 U.S. 300, 307 (1919).
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