Part Three: Current Developments in Sherman Act Section 2 Exclusionary Conduct Cases

Wednesday, January 1st, 2003 at 12:00 am by Brendan Dowd, Andrew Frackman, Matthew Merrick
Brendan Dowd, Andrew Frackman, Matthew Merrick, Part Three: Current Developments in Sherman Act Section 2 Exclusionary Conduct Cases, 2003 Colum. Bus. L. Rev. 526

The problem of when conduct of a monopolist constitutes unlawful exclusionary conduct (or phrased another way in some circumstances, when a monopolist has a duty to deal with competitors) has been one of the perennial challenges of antitrust analysis and enforcement from the days of Standard Oil to those of Microsoft. Over the past 20 years, substantial progress has been made in applying economically justified reasoning and analysis to this question. However, much uncertainty remains. We address below some recent developments in the law of exclusionary conduct under section 2 of the Sherman Act (“section 2”), focusing on three areas of particular interest: (1) when do business torts become unlawful monopolistic conduct, (2) what limits exist on the bundling of products when the seller has a monopoly on one of the products, and (3) what are the appropriate limits on a patent holder’s refusal to license, if any.

Author Information

N/A