United States: Attempt To Monopolize Claim Fails Where Plaintiff Cannot Establish Approach To Monopoly Power In Properly Defined Relevant Market

Practitioners interested in the real world application of an attempt to monopolize claim under Section 2 of the Sherman Act, will find Savory Pie Guy a "good read" for the New Year. Savory Pie Guy, LLC v. Comtec Industries, Ltd., No. 14-CV-7527, 2016 U.S. Dist. LEXIS 179317 (S.D.N.Y. December 28, 2016). Since the passage of the Sherman Act in 1890, attempted monopolization as a distinct legal theory of liability has received scant attention. It is usually bundled with a set of other but related antitrust theories of liability, including concerted activities in restraint of trade, and often tying and refusal to deal claims. For most of its existence, the theory of attempted monopolization has been under-analyzed intellectually. Savory Pie Guy provides a good and succinct analysis of the distinct elements of an attempt to monopolize claim, and their inter-relationship to the over-arching concept of "monopolization."

In Savory Pie Guy, the District Court for the Southern District of New York makes clear that a determination of the Section 2 element of "dangerous probability" is a construct of the totality of facts, as in any determination of the ability to set prices and eliminate competition within a properly defined relevant market. Defendant Comtec Industries, Inc. ("Comtec") is a manufacturer of dough forming equipment. It refused to deal with customers that purchased dough forming equipment, parts or services from any of its competitors for use with its machines. Savory Pie Guy, LLC ("Savory Pie") is an entry-level producer of pastry products for sale to food establishments. On two occasions, it purchased customized die sets from Comtec. The die sets were ordered for use with a Comtec pressing machine that Savory Pie had purchased used on eBay. Comtec refused to respond to multiple requests for a subsequent order of customized die sets.

On one occasion, after attendance at an expo, Savory Pie requested a written quote from Comtec for the purchase of a new pressing machine displayed at the expo. Comtec refused to supply the machine. It notified Savory Pie that it had learned that it was using a Comtec press with parts that were not manufactured by Comtec, and that its refusal was based on its concern that the use of non-Comtec parts with its new machine was "unsafe". Thereafter, Savory Pie purchased another Comtec pressing machine from a third-party competitor of Comtec, InLine Pie.

Savory Pie thereafter brought an action under Section 2 of the Sherman Act alleging that Comtec unlawfully restrained trade for dough forming equipment, parts and services. It complained that Comtec was in violation of Section 2 of the Sherman Act by refusing to deal with customers who purchased dough forming equipment from Comtec's competitors, and was therefore guilty of an attempt to monopoloze.

The District Court held that Savory Pie's claims of attempted monopolization failed. Savory Pie could not prove that Comtec held monopoly power in a properly defined relevant market. The court concluded that despite Comtec's high market share, in excess of 50%, the evidence did not support the conclusion that Comtec could control prices and exclude competition. The court held that the there was insufficient proof of barriers to entry into the market, and that Savory Pie was able to satisfy its needs by purchasing equipment and services from third-party competitors of Comtec. Accordingly, there was no proof that Comtec could control prices and exclude competition.

Translated into the vernacular, the court held that there was insufficient evidence to show that Comtec had a "dangerous probability of achieving monopoly power" through its refusals to deal with Savory Pie. This was because at least one competitor had entered the market during the period in question, and that there were third-party companies who could support Comtec's machines, and thus the supply needs of companies such as Savory Pie Guy. Therefore, Comtec's 50% market share was insufficient to warrant a conclusion that its refusals to deal created a "dangerous probability" that it would monopolize the market through the complained of refusals to deal. Accordingly, summary judgment was granted and the action dismissed.

In its analysis, the District Court cited Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993). Spectrum Sports had disapproved the rulings of the Ninth Circuit in its decision in Lessig v. Tidewater Oil Co., 327 F.2d 459 (9th Cir. 1964), and held that a specific intent to achieve monopoly power and a subsequent dangerous probability of monopolization required proof that the alleged unfair or predatory conduct occurred within a relevant market context, where it could be found that the defendant possessed, or would dangerously approach, market power. Namely, the power to control prices and exclude entry into the market.

In Spectrum Sports, the Supreme Court cited to the foundational Section 2 case decided by Justice Holmes in Swift & Co. v. United States, 196 U.S. 375 (1905). There, the Supreme Court held that intent alone is insufficient to establish a dangerous probability of success. Rather, it requires inquiry into the relevant product and geographic markets, and an appropriate measurement of the defendants' economic power in that market. Spectrum Sports held that Lessig and its progeny were inconsistent with the Sherman Act's purpose of protecting the public from market failures, and that the Sherman Act directed itself only against conduct that unfairly tends to destroy competition.

Swift & Co. itself is a "good read" in that Justice Holmes found his prior decision in Commonwealth v. Peaslee, 59 N.E. 55, 177 Mass. 267 (1901) to be instructive. An "attempt to monopolize" is an attempt to commit a substantive crime. There, Justice Holmes writing as the Chief Justice of the Massachusetts Supreme Judicial Court, held that in an attempt to monopolize case, the question is whether the defendant's acts come near enough to the accomplishment of the substantive offense of monopolization to be punishable. Peaslee made clear that the statute does not punish every act directed towards the commencement of the substantive crime, but only if such acts that are done in an attempt to commit it, and at least come dangerously close to its consummation. As stated by Justice Holmes, preparation is not an attempt. . . . it is a question of degree. If the preparation comes very near to the accomplishment of the act, the attempt to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.

Id. at 272; see also Don T. Hibner, Jr., Attempts to Monopolize: A Concept in Search of Analysis, 34 Antitrust L.J. 165 (1967).

Savory Pie is a good read, and a contribution to our jurisprudential understanding of Section 2 of the Sherman Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
24 Oct 2017, Seminar, Los Angeles, United States

Presented by The American Bar Association White Collar Crime Committee.

24 Oct 2017, Conference, Los Angeles, United States

Corporate transactions are not just in the domain of M&A corporate attorneys. This program will cover the important role of employment and benefits counsel in shaping mergers and acquisitions. The presenters will provide practical guidance on conducting due diligence of labor, employment, employee benefits and executive compensation arrangements of target companies.

25 Oct 2017, Business Breakfast, New York, United States

Please join us for a complimentary breakfast program and networking with private equity investment banking professionals to discuss private equity activity and prospective deal flow opportunities in the technology industry.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.