Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993)

Court

Supreme Court

Date Decided

January 25, 1993

Vote

9-0

Victory For and Result

Defendant.

Circuit court reversed and remanded.[1]

Conduct at Issue

Industries

Medical Products, Sporting Goods, Equestrian Products

Themes and Important Topics

Statute(s) at Issue

Procedural Posture

On Appeal

Lower Court Opinions

McQuillan v. Sorbothane, Inc., 907 F.2d 154 (9th Cir. 1990), rev'd sub nom. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993).

Facts

Spectrum Sports and the McQuillans (d.b.a., Sorboturf Enterprises) were distributors of products made from a patented elastic polymer called Sorbothane which could be used in various medical, athletic, and equestrian products.[2]

The intellectual property rights to sorbothane are owned by BTR, Inc. {BTR}).[3] In 1982, BTR switched its distribution from five regional companies to one national distributor.[4] The McQuillans were selected to be the distributors of all sorbothane products.[5]

As a condition of the distribution contract, BTR wanted the McQuillans to divest their athletic shoe distributorship.[6] The McQuillans refused.[7] BTR then refused to sell sorbothane to the McQuillans.[8] The McQuillans business subsequently failed.[9] Spectrum Sports then became the national distributor of sorbothane athletic shoe inserts.[10] The McQuillans sued.

The Ninth Circuit Court of Appeals affirmed a jury verdict, and found - because the verdict did not specify the actual violation (i.e., monopolized, attempted to monopolize, or conspired to monopolize) - that an attempted monopolization claim had been established.[11]

The Ninth Circuit also held that it was not necessary for the plaintiff to show that the defendant had specific intent to monopolize a relevant market and that a plaintiff did not have to "present evidence of the relevant market or of the defendants' market power."[12] Instead, the Ninth Circuit allowed the jury to infer that the defendant had specific intent and a dangerous probability of success because there was "sufficient evidence from which the jury could conclude that {the defendants} engaged in unfair or predatory conduct{.}"[13]

Legal Question(s)

Question 1: What is the analysis for an attempted monopolization claim under Section 2 of the Sherman Act?

Majority Opinion (Justice White)

Question 1: What is the analysis for an attempted monopolization claim under Section 2 of the Sherman Act?

Answer:

For an actionable attempted monopolization claim, a plaintiff "must prove": [14]

  1. That the defendant has engaged in unfair, predatory, or anticompetitive conduct with
  2. A specific intent to monopolize and
  3. A dangerous probability of achieving monopoly power.[15]

Rationale:

The Supreme Court first discussed the attempt to monopolize provision under Section 2 of the Sherman Act in Swift & Co. v. United States, 196 U.S. 375 (1905).[16] Of critical importance in Swift & Co. v. United States, 196 U.S. 375 (1905) was the following passage:

"Where acts are not sufficient in themselves to produce a result which the law seeks to prevent—for instance, the monopoly—but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. Commonwealth v. Peaslee, 177 Massachusetts 267, 272 {59 N. E. 55, 56 (1901)}. But when that intent and the consequent dangerous probability exist, {the Sherman Act}, like many others and like the common law in some cases, directs itself against that dangerous probability as well as against the completed result."[17]

One aspect of the Supreme Court's analysis in Swift & Co. v. United States, 196 U.S. 375 (1905), as detailed in the selected passage above, was that "not every act done with intent to produce an unlawful result constitutes an attempt."[18] Instead, the Supreme Court stated in Swift & Co. v. United States, 196 U.S. 375 (1905) that "It is a question of proximity and degree."[19] In other words, "intent is necessary, but alone is not sufficient, to establish the dangerous probability of success that is the object of {Section 2 of the Sherman Act's} prohibition of attempts {to monopolize}."[20]

According to the Supreme Court, there is not much support - either in the case law or text of the law - for the assertion that, as what the Ninth Circuit held, only proof of "unfair or predatory conduct" (i.e., the kind of conduct the Sherman Act prohibits) is sufficient for a attempted monopolization claim.[21] Moreover, such a situation would be "contrary to the purpose and policy of the Sherman Act."[22]

Due to what the Supreme Court stated in Swift & Co. v. United States, 196 U.S. 375 (1905) and other Supreme Court decisions since that decision,[23] an actionable attempted monopolization claim requires that a plaintiff "must prove":[24]

  1. That the defendant has engaged in unfair, predatory, or anticompetitive conduct with
  2. A specific intent to monopolize and
  3. A dangerous probability of achieving monopoly power.[25]

Rule(s) of Law

For a party to be liable for attempted monopolization under § 2 of the Sherman Act, a plaintiff is required to show that the defendant has a dangerous probability that they would monopolize a relevant market and a specific intent to monopolize.[26]

Open Questions and Implications from the Holding

A central feature of the Supreme Court's holding in Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993) is that the basis of its opinion (of rejecting the Ninth Circuit’s relaxed standard for attempted monopolization and creating the analysis for an attempted monopolization claim) is derived from statements made in prior decisions, primarily Swift & Co. v. United States, 196 U.S. 375 (1905), Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172 (1965), and Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984). This illustrates both the Supreme Court’s desire to adhere to prior holdings and provides a methodology for how the Court synthesizes those holdings to refine (or in its view in Spectrum Sports, restate) antitrust doctrine.

Other Themes and Important Quotes from the Decision

Majority Opinion (White)

"While § 1 of the Sherman Act forbids contracts or conspiracies in restraint of trade or commerce, § 2 addresses the actions of single firms that monopolize or attempt to monopolize, as well as conspiracies and combinations to monopolize."[27]

Plain Meaning: Section 1 of the Sherman Act targets conduct (contracts or conspiracies in restraint of trade or commerce) that involves multiple parties. Section 2 of the Sherman Act targets both single firms and multiple firms, but only if they monopolize, attempt to monopolize, or engage in conspiracies or combinations to monopolize.

Note: The Supreme Court is stating the kind of conduct that can violate Section 1 and 2 of the Sherman Act. The Supreme Court also notes that Section 1 of the Sherman Act requires multiple parties, whereas Section 2 can target a single firm and multiple firms.

Themes: {{Relationship between Section 1 and Section 2 of the Sherman Act}}.

"Section 2 {of the Sherman Act} does not define the elements of the offense of attempted monopolization. Nor is there much guidance to be had in the scant legislative history of that provision, which was added late in the legislative process. The legislative history does indicate that much of the interpretation of the necessarily broad principles of the {Sherman} Act was to be left for the courts in particular cases."[28]

Plain Meaning: Neither the (in its view spare) legislative history nor the text of the Sherman Act defines the elements of an attempted monopolization offense. However, the legislative history indicates that the principles of the Sherman Act are left for the federal courts to administer.

Note: This is an important point, but also incomplete and partially incorrect. Yes, during the legislative debates lawmakers did leave much of the administration and application of the Sherman Act to the federal courts. But the Sherman Act did not give the federal courts a blank check. The legislative history details specific kinds of harm that should be targeted and specific kinds of conduct that should be protected.[29]

Themes: {{Construction of the Sherman Act}}, {{Legislative History}}.

"Similarly, this Court reaffirmed in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), that 'Congress authorized Sherman Act scrutiny of single firms only when they pose a danger of monopolization. Judging unilateral conduct in this manner reduces the risk that the antitrust laws will dampen the competitive zeal of a single aggressive entrepreneur.' Id., at 768. Thus, the conduct of a single firm, governed by § 2, 'is unlawful only when it threatens actual monopolization.' Id., at 767. See also Lorain Journal Co. v. United States, 342 U.S. 143, 154 (1951); United States v. Griffith, 334 U. S. 100, 105-106 (1948); American Tobacco Co. v. United States, 328 U. S. 781, 785 (1946)."[30]

Plain Meaning: Single firm conduct is only draws the scrutiny of the Sherman Act if it creates a danger of monopolization. This limitation provides an important backstop to not inhibit other (ostensibly lawful) competition.

Note: Here the Supreme Court is reaffirming a point from Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984). While the Supreme Court acknowledges that the Sherman Act fundamentally incentivizes certain kinds of conduct by prohibiting other kinds of conduct, it does not detail exactly what kind of conduct is warranted and lawful beyond the assertion that the conduct should not threaten actual monopolization.

Themes: {{Section 2 of the Sherman Act}}, {{Violations of Section 2 of the Sherman Act}}, {{Competition}}.

"The 'any part' clause {in Section 2 of the Sherman Act}, however, applies to charges of monopolization as well as to attempts to monopolize, and it is beyond doubt that the former requires proof of market power in a relevant market."[31]

Plain Meaning: "Any part," which is in the statutory text of the Sherman Act applies to both monopolization and attempted monopolization. At this point, it is clear that monopolization requires a proof of a defendant firm's market power in a relevant market.

Note: The Supreme Court still has to account for when each violation occurs. Meaning, the Supreme Court still needs to define what conduct and evidence is necessary for each violation such that each of them are clearly distinguishable. For example, exactly what conduct makes it an attempt to monopolize rather than just monopolization. The Supreme Court's decision in Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993), only provides parties the analysis required to show a claim, but does not actually establish clear legal boundaries.

Themes: {{Relevant Market}}, {{Jurisdictional Reach of Section 2 of the Sherman Act}}, {{Monopolization}}, {{Attempted Monopolization}}, {{Section 2 of the Sherman Act}}, {{Textual Analysis}}.

"{T}here is little, if any, support for it in the statute or the case law, and the notion that proof of unfair or predatory conduct alone is sufficient to make out the offense of attempted monopolization is contrary to the purpose and policy of the Sherman Act."[32]

Plain Meaning: There is little support that only proof of unfair or predatory conduct is sufficient for an attempted monopolization claim. If it were the case, it would be contrary to the purpose of the Sherman Act.

Note: The Supreme Court here is commenting on the broader analytical frameworks of the Sherman Act and what is necessary for there to be a violation. Here, the Supreme Court is saying that more than injurious conduct to an individual party is necessary for a violation. In general, as elaborated in this decision and many others, parties are required to show harm to "competition" for a violation to occur. It is notable that the Supreme Court acknowledges that conduct that is unfair or predatory (i.e., either one is/could be acceptable) is required for a violation to occur. This is an acknowledgment that unfair conduct can violate the Sherman Act.

Themes: {{Purpose of the Sherman Act}}, {{Unfair Competition}}, {{Injury}}.

"{F}ootnote {23 of United States v. E. I. du Pont de Nemours & Co. (Du Pont), 351 U.S. 377, 404 (1956)}, which appeared in analysis of the relevant market issue...rejected the Government's reliance on several cases, noting that "the scope of the market was not in issue" in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931). That reference merely reflected the fact that, in Story Parchment, which was not an attempt to monopolize case, the parties did not challenge the definition of the market adopted by the lower courts. Nor was Du Pont itself concerned with the issue in this case."[33]

Plain Meaning: Footnote 23 of United States v. E. I. du Pont de Nemours & Co. (Du Pont), 351 U.S. 377, 404 (1956) is not saying in an “attempt to monopolize” case, plaintiffs do not need to define the relevant market. Instead, Footnote 23 was saying that the Supreme Court's decision in Story Parchment Co. v. Paterson Parchment Paper Co. (1931), the market scope wasn’t contested. Additionally, the Du Point decision was not an attempted monopolization case.

Note: The last part of this passage is perhaps the most important part. The Supreme Court expresses, at least here, that it matters what kind of violation was at issue in a particular decision. This directly implicates what kinds of principles can be extracted from a decision and how they are applied to future lawsuits.

Themes: {{Relevant Market}}, {{Fact Fragmentation}}.

"The purpose of the {Sherman} Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself. It does so not out of solicitude for private concerns but out of concern for the public interest. See, e. g., Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977); Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 116-117 (1986); Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962). Thus, this Court and other courts have been careful to avoid constructions of § 2 which might chill competition, rather than foster it."[34]

Plain Meaning: The Sherman Act does not protect a business from individual injury, but instead the public from issues that injure market-wide competition.

Note: The Court here takes advantage of the vagueness of exactly what kind of "competition" it (or what is supposed to be the Sherman Act) is trying to foster with the enforcement of the Sherman Act. Critically, here, the Supreme Court notes that "unfair" competition - even though this is a Sherman Act decision - is unlawful under the Sherman Act, and, in the last clause of this passage, acknowledges that unfair competition can chill the kind of competition that should be fostered by the Sherman Act. Another point that arises is that the Supreme Court implicitly acknowledges a paradox of private enforcement - they are not just asserting their rights for themselves, but for everyone else. In short, they are doing the work for others, including their competitors.

Themes: {{Purpose of the Sherman Act}}, {{Competition}}, {{Unfair Competition}}, {{Injury}}.

"It is sometimes difficult to distinguish robust competition from conduct with long-term anticompetitive effects; moreover, single-firm activity is unlike concerted activity covered by § 1, which 'inherently is fraught with anticompetitive risk.' Copperweld, 467 U.S., at 767-769. For these reasons, § 2 makes the conduct of a single firm unlawful only when it actually monopolizes or dangerously threatens to do so. Id., at 767. The concern that § 2 might be applied so as to further anticompetitive ends is plainly not met by inquiring only whether the defendant has engaged in 'unfair' or 'predatory' tactics. Such conduct may be sufficient to prove the necessary intent to monopolize, which is something more than an intent to compete vigorously, but demonstrating the dangerous probability of monopolization in an attempt case also requires inquiry into the relevant product and geographic market and the defendant's economic power in that market."[35]

Plain Meaning: Beneficial and harmful conduct are difficult to distinguish. Concerted (i.e., multi-party) activity has many features that make it prone to violate the Sherman Act. Violations of Section 2 require more than just predatory or unfair conduct, they need a dangerous probability of success which itself requirements defining a relevant market and an examination of the defendant's market power.

Note: Here again, the Supreme Court is acknowledging the difficultly of determining and distinguishing between lawful and unlawful conduct, but does not provide much guidance on solving that problem.

Themes: {{Purpose of the Sherman Act}}, {{Competition}}, {{Relationship between Section 1 and Section 2 of the Sherman Act}}, {{Competition vs. Cooperation}}, {{Unfair Competition}}, {{Injury}}.

Disclosure About Case Briefs

This document is not legal advice. Case briefs are merely summations of legal opinions and are not to be used as a substitute for obtaining legal counsel or reading the opinion and drawing your own conclusions as to its meaning and significance. Interpretations of legal rulings may vary significantly. If you are seeking legal advice, consult a licensed attorney.

Links

Footnotes

  1. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459-60 (1993) ("In this case, the trial instructions allowed the jury to infer specific intent and dangerous probability of success from the defendants' predatory conduct, without any proof of the relevant market or of a realistic probability that the defendants could achieve monopoly power in that market. In this respect, the instructions misconstrued § 2 {of the Sherman Act}, as did the {Ninth Circuit} Court of Appeals in affirming the judgment of the District Court. Since the affirmance of the § 2 judgment against petitioners rested solely on the legally erroneous conclusion that petitioners had attempted to monopolize in violation of § 2 and since the jury's verdict did not negate the possibility that the § 2 verdict rested on the attempt to monopolize ground alone, the judgment of the Court of Appeals is reversed, Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 370 U.S. 19, 29-30 (1962), and the case is remanded for further proceedings consistent with this opinion."). In plain language, the Supreme Court is saying that because the jury’s verdict could have been based entirely on that mistaken legal theory (here the jury instructions let the jury assume the defendants had an intent and ability to monopolize just because their behavior looked predatory), the Ninth Circuit Court of Appeals' ruling is revered and remanded to be reconsidered under the correct legal standard which the Supreme Court provided in its Spectrum Sports decision. The jury instructions are listed in footnote 4 of Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993). Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 452 n. 4 (1993). See also Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 451 n. 3 (1993) (special verdict form instructions). ↩︎

  2. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 449 (1993). ↩︎

  3. Spectrum Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 449 (1993). ↩︎

  4. BTR's subsidiaries actually made these decisions. For purposes of simplicity, BTR, Inc. and its subsidiaries will be referred to just as "BTR." Originally, Hamilton-Kent Manufacturing Company (Hamilton-Kent) owned all manufacturing and distribution rights to sorbothane. Sorbothane, Inc. (S. I.), another subsidiary of BTR, eventually obtained the sorbothan business. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 449-50 (1993). ↩︎

  5. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 449 (1993). ↩︎

  6. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 450 (1993) ("In April 1982, Hamilton-Kent told respondents that it wanted them to relinquish their athletic shoe distributorship as a condition for retaining the right to develop and distribute equestrian products."); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 450 (1993) ("In May {1982}, the marketing manager of S. I. again made clear that respondents had to sell their athletic distributorship to keep their equestrian distribution rights."). ↩︎

  7. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 450 (1993) ("Respondents refused to sell and continued to distribute athletic shoe inserts."). ↩︎

  8. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 450 (1993) ("In August 1983, S. I. informed respondents that it would no longer accept their orders. Spectrum thereupon became national distributor of sorbothane athletic shoe inserts. Respondents sought to obtain sorbothane from the BTR's British subsidiary, but were informed by that subsidiary that it would not sell sorbothane in the United States.") (citations omitted). ↩︎

  9. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 450 (1993). ↩︎

  10. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 450 (1993). ↩︎

  11. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 452 (1993). ↩︎

  12. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 452-53 (1993). Specifically, the Ninth Circuit relied on its previous decision Lessig v. Tidewater Oil Co., 327 F. 2d 459 (9th Cir. 1964), cert. denied, 377 U.S. 993 (1964), and its progeny for its ruling. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 453 (1993). ↩︎

  13. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 453 (1993) (quoting the Ninth Circuits opinion). Note that at the time the Ninth Circuits' holding was in conflict with every other circuit. Every other circuit held "that proving an attempt to monopolize requires proof of a dangerous probability of monopolization of a relevant market." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 453 (1993); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 453 n. 5 (1993) (citing cases from other circuits). ↩︎

  14. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993). ↩︎

  15. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459 (1993) ("We hold that petitioners may not be liable for attempted monopolization under § 2 of the Sherman Act absent proof of a dangerous probability that they would monopolize a particular market and specific intent to monopolize."). ↩︎

  16. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 454-55 (1993). ↩︎

  17. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455 (1993) (quoting Swift & Co. v. United States, 196 U.S. 375, 396 (1905)). ↩︎

  18. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455 (1993). ↩︎

  19. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455 (1993) (quoting Swift & Co. v. United States, 196 U.S. 375, 402 (1905)). ↩︎

  20. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455 (1993). See also Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455 n.7 (1993) (describing Justice Holmes dissent in Hyde v. United States, 225 U.S. 347 (1912) where the Supreme Court asserts that in that decision Holmes confirmed his what he meant in his Swift & Co. v. United States, 196 U.S. 375, 402 (1905) opinion). In Hyde v. United States, 225 U.S. 347 (1912), Holmes stated "combination, intention and overt act may all be present without amounting to a criminal attempt. . . .There must be dangerous proximity to success." Hyde v. United States, 225 U.S. 347, 387-88 (1912) (Holmes, J., dissenting). Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 457-58 (1993) (quoting Swift & Co. v. United States, 196 U.S. 375, 402 (1905) for the assertion that the Ninth Circuit's Lessig v. Tidewater Oil Co., 327 F. 2d 459 (9th Cir. 1964) decision, which the Ninth Circuit relied on for its holding that led to the Supreme Court's Spectrum Sports decision, is wrong because the quote from Swift & Co. v. United States, 196 U.S. 375, 402 (1905) asserts that a dangerous probability of success for attempted monopolization requires more evidence than a defendant's intent). ↩︎

  21. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993). ↩︎

  22. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993). The Supreme Court explains the purpose and policy of the Sherman Act later in the opinion. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993). This specific aspect of the opinion is explained in more detail in this brief below. ↩︎

  23. The Supreme Court cited Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177 (1965) and Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) as support for its assertion that showing there is a dangerous probability of actual monopolization requires defining the relevant market and an examination of market power. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455-56 (1993) (citing Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177 (1965); Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-68 (1984)).

    In Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177 (1965), the Supreme Court stated "{w}ithout a definition of that market there is no way to measure {the defendant's} ability to lessen or destroy competition." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455-56 (1993) (quoting Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177 (1965)).

    In Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-68 (1984), the Supreme Court stated that "Congress authorized Sherman Act scrutiny of single firms only when they pose a danger of monopolization. Judging unilateral conduct in this manner reduces the risk that the antitrust laws will dampen the competitive zeal of a single aggressive entrepreneur." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455-56 (1993) (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-68 (1984)).

    The Court also cites Lorain Journal Co. v. United States, 342 U.S. 143, 154 (1951); United States v. Griffith, 334 U.S. 100, 105-106 (1948); American Tobacco Co. v. United States, 328 U.S. 781, 785 (1946) for the assertion that single firm conduct is "unlawful only when it threatens actual monopolization." Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993) (quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767 (1984)). ↩︎

  24. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455, 456 (1993). ↩︎

  25. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459 (1993) ("We hold that petitioners may not be liable for attempted monopolization under § 2 of the Sherman Act absent proof of a dangerous probability that they would monopolize a particular market and specific intent to monopolize."). ↩︎

  26. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459 (1993) ("We hold that petitioners may not be liable for attempted monopolization under § 2 of the Sherman Act absent proof of a dangerous probability that they would monopolize a particular market and specific intent to monopolize."); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993) ("Consistent with our cases, it is generally required that to demonstrate attempted monopolization a plaintiff must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power.") (citing 3 P. Areeda & D. Turner, Antitrust Law ¶ 820, at 312 (1978)); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993) ("The purpose of the {Sherman} Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself."); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 455 (1993) ("The Court's decisions since {Swift Co. v. United States, 196 U.S. 375, 402 (1905)} have reflected the view that the plaintiff charging attempted monopolization must prove a dangerous probability of actual monopolization, which has generally required a definition of the relevant market and examination of market power.") (then discussing Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 177 (1965) and Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 768 (1984) as examples of some of the Supreme Court's decisions since Swift discussing attempted monopolization requiring a definition of the relevant market and examining a firm's market power); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993) (Concerning, a dangerous probability of monopolization, "courts have found it necessary to consider the relevant market and the defendant's ability to lessen or destroy competition in that market."); id. at 456 n. 8 (citing example cases); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993) ("demonstrating the dangerous probability of monopolization in an attempt case also requires inquiry into the relevant product and geographic market and the defendant's economic power in that market."). ↩︎

  27. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 454 (1993). ↩︎

  28. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 454 (1993) (citations omitted). The Supreme Court cites the Sherman Act congressional record, Earl Kintner's compilation of legislation history, and the Areeda & Turner Treatise. ↩︎

  29. For the single best source on this point, see Sanjukta Paul, Recovering the Moral Economy Foundations of the Sherman Act, 131 Yale L.J. 175 (2021). ↩︎

  30. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993). ↩︎

  31. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 457 (1993) (citing United States v. Grinnell Corp., 384 U.S. 563, 570-571 (1966); United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 404 (1956)). See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 456 n.9 (1993) (discussing United States v. Yellow Cab Co., 332 U.S. 218 (1947), and explaining that the "any part" language in Section 2 of the Sherman Act is expansive such that "it is immaterial how large an amount of interstate trade is affected, or how important that part of commerce is in relation to the entire amount of that type of commerce in the Nation," but parties are still required to define a relevant market and show a firm's market power.). ↩︎

  32. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 457 (1993). ↩︎

  33. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993). ↩︎

  34. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459 (1993).
    The specific quote in Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962) the Supreme Court is referencing is "Taken as a whole, the legislative history {of the Celler-Kefauver Act of 1950} illuminates congressional concern with the protection of competition, not competitors, and its desire to restrain mergers only to the extent that such combinations may tend to lessen competition."

    The specific quote in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) the Supreme Court is referencing is the same quote in Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962).

    The specific quote in Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 116-117 (1986) the Supreme Court is referencing is "We find respondent's proposed construction of § 7 {of the Clayton Act} too broad, for reasons that Brunswick illustrates. Brunswick holds that the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws. The kind of competition that Monfort {the Respondent} alleges here, competition for increased market share, is not activity forbidden by the antitrust laws. It is simply, as petitioners claim, vigorous competition. To hold that the antitrust laws protect competitors from the loss of profits due to such price competition would, in effect, render illegal any decision by a firm to cut prices in order to increase market share. The antitrust laws require no such perverse result, for '{i}t is in the interest of competition to permit dominant firms to engage in vigorous competition, including price competition.' Arthur S. Langenderfer, Inc. v. S. E. Johnson Co., 729 F. 2d 1050, 1057 (CA6), cert. denied, 469 U. S. 1036 (1984). The logic of Brunswick compels the conclusion that the threat of loss of profits due to possible price competition following a merger does not constitute a threat of antitrust injury." ↩︎

  35. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993). ↩︎