471 U.S. 1007 | SCOTUS | 1985
Dissenting Opinion
dissenting.
In this case, the United States Court of Appeals for the Ninth Circuit affirmed a jury verdict that petitioner had attempted to monopolize in violation of §2 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 2, and was therefore liable to respondents for treble damages. 721 F. 2d 1207 (1983). Ordinarily, a finding of attempted monopolization depends on a showing that there was a dangerous probability that the defendant would succeed in monopolizing a relevant market. See Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U. S. 172, 177 (1965); Swift & Co. v. United States, 196 U. S. 375, 396 (1905); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F. 2d 263, 271-275 (CA2 1979), cert. denied, 444 U. S. 1093 (1980). In this case, the jury found that the relevant submarket that petitioner had attempted to monopolize consisted of sales of “Mobil-branded and non-Mobil-branded oil, lubricants, and [tires, batteries, accessories and specialties] to Mobil dealers.”
On appeal, petitioner contended that, as a matter of law, sales to Mobil dealers only could not constitute a relevant submarket. The Court of Appeals found it unnecessary to address this contention, for it concluded that the finding of attempted monopolization could be sustained without reference to the effects of petitioner’s conduct in any relevant market. The court relied in part on the Ninth Circuit’s earlier ruling in Lessig v. Tidewater Oil Co., 327
Sections 1 and 2 of the Sherman Act are directed to different sorts of threats to competition in our economy. Section 1 proscribes concerted action — contracts, combinations, and conspiracies in restraint of trade. Such concerted action is so inherently threatening to competition that in certain instances it is forbidden without regard to whether it has actually damaged competition in a particular market. Section 2 regulates unilateral conduct by outlawing monopolization and attempted monopolization. Because unilateral conduct is far less likely than concerted action to pose a threat to competition, “[t]he conduct of a single firm is governed by §2 alone and is unlawful only when it threatens actual monopolization.” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 767 (1984).
Because the Lessig doctrine allows a violation of § 2 to be found on the basis of a per se violation of § 1, without regard to the effect of a defendant’s conduct in any relevant market, it appears to be in tension with these principles. In addition, the doctrine, although accepted within the Ninth Circuit for over 20 years, has been explicitly rejected by a number of Courts of Appeals outside the Ninth Circuit. See Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 637 F. 2d 105, 117 (CA3 1980), cert. denied, 451 U. S. 911 (1981); Photovest Corp. v. Fotomat Corp., 606 F. 2d 704, 711-712 (CA7 1979), cert. denied, 445 U. S. 917 (1980); Spectrofuge Corp. v. Beckman Instruments, Inc., 575 F. 2d 256, 276, and n. 69 (CA5 1978), cert. denied, 440 U. S. 939 (1979); FLM Collision Parts, Inc. v. Ford Motor Co., 543 F. 2d 1019,
Lead Opinion
C. A. 9th Cir. Certiorari denied.
