Attempted monopolization

Attempted monopolization test (Spectrum Sports v. McQuillan): the plaintiff must demonstrate

1. Exclusionary conduct
2. Specific intent to monopolise: show D intended the harm or had knowledge of the reasonable likelihood of the harm (harm was not accidental nor coerced)
   • Can be inferred from (1)
3. Dangerous probability of success (achieving monopoly power)
   • Cannot be wholly inferred from (1) and (2)
   • Requires proof of likely harm in a relevant product and geographic market

Dangerous probability of success: the further the event is in the future, the more uncertain it is that recoupment will occur

Practical note: attempted monopolization will likely be alleged in all Section 2 cases, the intent element makes the attempt approach more promising than the need to show actual harm

Caselaw:

Spectrum Sports v. McQuillan (1993) (clarifies attempted monopolization test)

• Holding: specific intent can be inferred from exclusionary conduct, but not dangerous probability of success
  • P: argues that they infer specific intent and dangerous probability of success from exclusionary conduct
    • Court disagrees, but says that all three should be considered together under an integrated approach as a matter of inference
• Facts: D owns manufacturing and distribution rights to input to rubber horseshoes (sorbothane). D tells P that they must sell athletic distributorship to keep exclusive distribution rights for hoseshoes. P refuses to stop selling athletic shoes and P's distributorship is terminated. P sues alleging attempted monopolization under Section 2.

United States v. Am. Airlines, Inc.: see in unilateral facilitating conduct section, court found a violation of Section 2 for attempted monopolization