Originally appeared in Fordham Law Review on October 1, 2016.
—by Saul P. Morgenstern, Jennifer B. Patterson and Terri A. Mazur, Antitrust Jurisprudence in the Second Circuit, 85 Fordham L. Rev. 111 (2016).
Although the U.S. Supreme Court ultimately defines the standards by which marketplace conduct is to be judged under the antitrust laws, and other circuit and district courts make significant contributions to the law's development, there is no question that the Second Circuit and the district courts within it often have led the way in developing the nation's antitrust jurisprudence. Routinely cited, the Second Circuit's decisions have often broken new analytical ground and either set the standard by which other courts judge similar questions or set the table for resolution by the Supreme Court.
A running thread through Second Circuit antitrust jurisprudence is a willingness to examine market participants' real-world conduct and the consequences of that conduct in seeking out the balance between incentivizing robust competition and protecting the market—and ultimately consumers—from distortions caused by anticompetitive conduct. Thus, the Second Circuit has arguably led the way in defining how we determine whether a monopoly violates the law and what constraints apply to the conduct of one who holds a lawfully acquired monopoly.
Similarly, the circuit has laid the groundwork for national adoption of a damages analysis for violations of the Robinson-Patman Act that recognized the difference between the harm Congress sought to remedy by that law and the harm caused by conspiracy and monopolization under sections 1 and 2 of the Sherman Act. In other areas, the court has provided important input into the national conversation about areas of antitrust law in the wake of Supreme Court decisions that changed the direction of the law, helping to fill in the blanks left by those decisions.
This Article collects and describes rulings that, in the authors' view, reflect these themes in Second Circuit antitrust jurisprudence. The court's long history in this substantive space, its likely continued exposure to critical antitrust questions, and the importance of this area of the law to our national economy assure that others will be examining and shedding further light on the Second Circuit's important work in antitrust well into the future.
The extent of the Second Circuit's influence is no more apparent than in cases of alleged monopolization. The words of the Sherman Act paint broad strokes, leaving to the courts the task of applying its guidance to the real world of commerce and markets. Section 2 of the Sherman Act is no exception, stating that it is unlawful to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize" trade or commerce.1 While the statute could be read to outlaw any monopoly, it did not take long for courts to realize that such a broad prohibition might cause more harm than good. Such prohibition could deprive businesses from attracting customers by rewarding their loyalty with good value, thereby removing an important incentive essential to robust competition. This inherent ambiguity left it to the courts to navigate the tension between preventing the unlawful acquisition of monopoly power and allowing monopolies formed through honest competition to exist and even to thrive. The Second Circuit jumped into that issue in United States v. Aluminum Co. of America 2 (Alcoa) and Berkey Photo, Inc. v. Eastman Kodak Co.,3 two opinions that have shaped this country's approach to monopolization in antitrust enforcement nationwide and laid the groundwork for later decisions on the boundaries imposed on what the owners of lawfully acquired monopolies may do.
A. Establishing a Framework for Considering Monopolization Cases: Alcoa
Judge Learned Hand's 1945 opinion for the court in Alcoa serves as the basis for analysis of alleged section 2 violations of the Sherman Act. In that case, the Second Circuit had to decide whether Aluminum Company of America ("Alcoa") had monopolized the virgin aluminum ingot market—of which it controlled more than 90 percent—in violation of section 2.4 The case came before the Second Circuit after the trial court ruled that Alcoa had not monopolized the market.5 Judge Hand examined the distinction between acquiring a monopoly by competing successfully and acquiring a monopoly unlawfully.6
First, the court had to determine whether Alcoa was a monopoly by considering the company's size and control within the marketplace.7 The Alcoa opinion articulated a framework by which courts should consider whether a monopoly exists—a rubric that remains the standard today. Under this framework, courts must determine the relevant market in which the alleged monopolist operates and then assess the alleged monopolist's power within that defined market. Accordingly, different definitions of the relevant market could yield different conclusions regarding the existence of a monopoly.8 In Alcoa, if the market included only virgin aluminum ingot sold in the United States, purchasers would have little choice but to buy from Alcoa because the company had more than a 90 percent market share.9 If secondary aluminum ingot—aluminum salvaged from initial usage and repurposed—could be substituted for virgin aluminum, and therefore included in the relevant market, Alcoa's share would have fallen to 64 percent.10 Finally, if the part of Alcoa's ingot production that it fabricated into products—and therefore did not sell as ingot—were excluded from the market, then Alcoa's share would have fallen to about 33 percent.11
Judge Hand defined the relevant market as the total amount of virgin aluminum ingot available for sale in the United States, excluding secondary aluminum ingot and including Alcoa's captive sales, which resulted in a market share in the relevant market of more than 90 percent.12 The Alcoa decision set the standard for monopolization cases; courts must define the relevant market in order to determine the market power of a potential monopolist.13 Judge Hand reasoned that controlling 90 percent of the market allowed Alcoa to control prices within the market14 and thus found that Alcoa had sufficient market power to be a monopolist.
The opinion also set some broad guideposts as to what would, and would not, be sufficient market share to create risk of a monopoly, stating that "it is doubtful whether sixty or sixty-four percent would be enough [market share to constitute a monopoly]; and certainly thirty-three per cent is not."15 Judge Hand did not articulate the reasoning behind these guideposts, nor did he identify a threshold market share amount that would indicate a monopoly. Nevertheless, the Alcoa decision created an unprecedented framework for assessing whether a monopoly exists—a framework that remains the starting point in assessing monopolization claims. To this day, U.S. antitrust jurisprudence includes no fixed definition of how much market share indicates monopoly. Monopoly power is defined by Alcoa's rule: whether a company has the power to control prices and exclude competition.
The Alcoa decision is also notable for its discussion of the circumstances under which a monopolist is guilty of monopolization under section 2 of the Sherman Act, cementing the distinction between merely being a monopolist and having "monopolized" unlawfully in violation of section 2. Judge Hand noted that Alcoa "may not have achieved monopoly; monopoly may have been thrust upon it."16 In particular, Judge Hand's opinion argued against a reading of section 2 of the Sherman Act that would create a blanket prohibition of monopolies, identifying three scenarios in which a monopoly was "thrust upon" a company, rather than obtained through unlawful monopolizing activity by the company: First, a "natural monopoly," when the nature of the industry only supports one seller. Second, when changes to taste or cost drive a seller's competition out of the market. Third, when a seller becomes a monopoly by virtue of being the most successful competitor in a given market.17 In discussing this third scenario, Judge Hand noted that a strong argument can be made that, although the result may expose the public to the evils of monopoly, the Act does not mean to condemn the resultant of those very forces which it is its prime object to foster: finis opus coronat. The successful competitor, having been urged to compete, must not be turned upon when he wins.18
In considering whether a monopoly had been "thrust upon" Alcoa, Judge Hand reasoned that a company is not guilty of monopolization when it is but a "passive beneficiary of a monopoly."19 Judge Hand determined that Alcoa had not been a passive beneficiary because it had actively pursued its monopoly status by "progressively [embracing] each new opportunity as it opened" and thereby "fac[ing] every newcomer with new capacity already geared into a great organization, having the advantage of experience, trade connections and the elite of personnel."20 Thus, Judge Hand found Alcoa to have engaged in monopolization and thereby to have violated section 2 of the Sherman Act.21
Judge Hand's application of the principles he articulated to Alcoa arguably crossed the line he had drawn and created a per se rule prohibiting dominant firms within a market from using the benefit of their size and skill to compete in that market, even if their dominance has been won by fair and effective competition. As some critics have noted, "after Alcoa, the successful competitor may indeed be 'turned upon' because he may not compete."22 For that reason, the application of the principle to the specific facts in Alcoa has been revisited over time. However, Judge Hand's principle lives on—courts recognize that one can lawfully acquire monopoly power and that monopoly power is not an unfair reward for successful competition. As a result, Judge Hand's distinction between merely being a monopolist and unlawfully monopolizing under section 2 of the Sherman Act has been broadly cited by monopolization decisions issued throughout the country over many decades.
B. The Next Phase in Determining a Test for Unlawful Monopolization: Berkey
Alcoa generally went unchallenged across circuits until 1979, when the Second Circuit issued its historic antitrust opinion in Berkey, written by then-Chief Judge Kaufman.23 Kodak was a fully integrated manufacturer of cameras, light-sensitive film, photographic paper on which the film could be printed, and the various processing chemicals used to develop film and paper.24 Kodak was a leader in the industry and regularly introduced new products, including new types of amateur cameras and films, often in new sizes.25 Berkey was a much smaller competitor in those markets and complained that Kodak's introduction of new products without warning allowed Kodak to thwart competition by preventing others from offering competing products on a timely basis.
It was uncontested in Berkey that Kodak had a monopoly in the sale of cameras, film, and color paper.26 However, Berkey presented an opportunity for the court to revisit the issue of when a monopoly is lawfully acquired and thus address whether and how section 2 of the Sherman Act limited a dominant company's ability to compete. The Berkey Court began by abandoning Alcoa's arguably narrow view of when a monopoly is lawfully acquired, stating that "[a]s an operative rule of law . . . the 'thrust upon' phrase does not suffice."27 Instead, based on a comprehensive analysis of previous case law discussing the facets of section 2 of the Sherman Act, the court recognized that even a monopolist should be permitted to compete and not be limited to succeeding by accident.28
As a preliminary matter, the Berkey Court adopted the Supreme Court's rule in United States v. E.I. du Pont de Nemours & Co.29 that the first step in analyzing a section 2 claim is to define the relevant market.30 Consistent with Judge Hand's approach in Alcoa, the du Pont Court's analysis of whether a monopoly existed began with the Court's determination of the appropriate market. The Berkey Court similarly adopted the Supreme Court's 1966 pronouncement in United States v. Grinnell Corp.31 that "after monopoly . . . power is found, the second element of the [section] 2 offense is 'the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.'"32 Grinnell's articulation of the section 2 offense was, of course, a slightly different way of stating the principle Judge Hand articulated in Alcoa—a monopoly won by competing effectively is not unlawful.33 Expanding on the jurisprudence of Alcoa and Grinnell, the Berkey Court then went a step further, holding that "the law's hostility to monopoly power extends beyond the means of its acquisition. Even if that power has been legitimately acquired, the monopolist may not wield it to prevent or impede competition."34 The Second Circuit in Berkey thus articulated a gloss on the Alcoa-Grinnell principle. While a lawful monopolist was free to reap the benefits of success, it could not use its monopoly power to entrench itself: The mere possession of monopoly power does not ipso facto condemn a market participant. But, to avoid the proscriptions of [section] 2, the firm must refrain at all times from conduct directed at smothering competition. This doctrine has two branches. Unlawfully acquired power remains anathema even when kept dormant. And it is no less true that a firm with legitimately achieved monopoly may not wield the resulting power to tighten its hold on the market.35
Having stated that broad principle, the Berkey Court examined whether Kodak's monopoly position obliged it to disclose its new product developments in the camera and film industries to competitors like Berkey in advance, enabling them to introduce compatible products when Kodak did, rather than forcing competitors to play catch up.36 The court determined that Kodak was not obligated to do so.37 The Berkey Court noted that withholding advance knowledge of one's new products and advancements is typically valid competitive conduct.38 The court observed that "a monopolist is permitted, and indeed encouraged, by [section] 2 to compete aggressively on the merits, any success that it may achieve through 'the process of invention and innovation' is clearly tolerated by the antitrust laws."39 Thus, the Berkey Court declined to require monopolists to help smaller firms, making it clear that lawfully acquired monopolies are entitled to the benefits of their dominant market share.
The Berkey Court did, however, recognize limits to using lawfully acquired power in one market to acquire dominance in other markets. Stating that "[i]t is clear that a firm may not employ its market position as a lever to create—or attempt to create—a monopoly in another market," the Berkey Court examined whether Kodak had leveraged its monopoly power in the film and camera markets to gain illicit advantages in the photofinishing equipment market, where Kodak was not a monopolist.40 The Berkey Court determined that Kodak did not gain competitive advantage in the photofinishing market when it introduced Kodacolor II film, which required a new photofinishing process, along with its 110 camera.41 Further, the Berkey Court clarified that, because Kodak was an integrated firm, the advantages the company gained from selling equipment required for the new photofinishing process used in its new film and camera did not constitute monopolization.42
The Berkey decision clarified many important principles within the law of monopolization. It established that a monopolist may compete vigorously on the merits with smaller rivals and may capitalize on economies of scale resulting from its larger size.43This was a shift from earlier thinking, as seen in Alcoa, that a monopoly had to exercise special restraint.44 Instead, the Berkey decision employed competition laws to promote economic efficiency rather than to shield inefficient competitors. However, while a monopolist may exploit efficiencies arising from its integration in multiple markets, the Second Circuit made clear that there was a limit: a monopolist may not use its monopoly power to block competition or to grow its power in other markets in which it does not have monopoly power. Because it found for Kodak on the facts, the Berkey Court did not have the opportunity to articulate where that limit lies.45 That task was left to later cases, many of which—including those in other circuits—to this day still start their analysis where Berkey left off.46
C. Regulating the Behavior of a Monopolist: What Constitutes Illicit Monopolization?
Since Alcoa and Berkey, the Second Circuit has, on several occasions, had the opportunity to define the lawful limits on what lawful monopolists may do to "protect their turf."
1. Predatory Pricing
In 1981, in Northeastern Telephone Co. v. American Telephone & Telegraph Co.47(AT&T), Judge Kaufman of the Second Circuit applied the rationale of Berkey to consider the difference between "engag[ing] in vigorous competition" and "subvert[ing] the competitive process by unfair or unreasonable means."48 In AT&T, the plaintiff, Northeastern Telephone Company, a relatively small supplier of telephone equipment, alleged that the defendants AT&T and its affiliates serving the Connecticut area were selling their public branch exchanges (PBX) and key telephones below cost, and that the two-tier pricing schemes that the defendants were offering to certain business customers were anticompetitive.49 The Second Circuit considered whether such activities constituted "predatory pricing," which it defined as "the deliberate sacrifice of present revenues for the purpose of driving rivals out of the market and then recouping the losses through higher profits earned in the absence of competition."50 The court acknowledged that "[p]redatory pricing is difficult to distinguish from vigorous price competition" and is likely rare.51 The court also expressed concern that "[i]nadvertently condemning [price] competition as an instance of predation [would] undoubtedly chill the very behavior the antitrust laws seek to promote."52 Thus, in AT&T, the court found that, while predatory pricing was certainly anticompetitive, "the rarity of the phenomenon" must inform a court's definition of such activity.53
Balancing these considerations, the Second Circuit shied away from creating a complex analysis for determining predatory pricing.54 Instead, the court endorsed a bright-line rule directing courts to compare a firm's marginal costs to the prices it charges to determine whether those prices are predatory.55 If average or typical marginal costs exceed prices, those prices are presumptively predatory.56 If not, they are presumptively competitive.57
Applying this newly articulated test for determining whether the defendants had engaged in predatory pricing, the court in AT&T found no showing that the defendants' conduct was beyond the bounds of competitive propriety as laid out in Berkey, noting that the record contained no evidence that the defendants had priced below marginal cost.58 The court noted, however, that pricing schemes similar to those of the AT&T defendants might be predatory if a plaintiff could show that a defendant omitted direct costs, the inclusion of which would cause marginal cost to exceed price.59 The court rejected the plaintiff's assertion that average or fully distributed costs should be considered.60 Throughout its AT&T decision, the Second Circuit tied the determination of predatory pricing to marginal cost, a crucial step in the development of the law in this area.61
2. "Product Hopping"
A patent is effectively a limited-duration lawful monopoly over the market for the patented invention. When a patent is close to expiring, some companies seek to preserve their market position by inducing customers to transition to a new product, or new version of the product that is protected by a longer-term patent. Recently, in New York ex rel. Schneiderman v. Actavis PLC,62 the Second Circuit became the first circuit to explore when "product improvement" crosses the line into "product hopping" in violation of section 1 or 2 of the Sherman Act.63 For years, Actavis had marketed Namenda IR, a treatment for Alzheimer's disease taken twice a day.64 As the patent term for Namenda IR was coming to an end, Actavis introduced Namenda XR, a formulation that could be taken once daily—an improvement in the eyes of some.65 Namenda XR enjoys patent protection through 2029.66
Typically, when a pharmaceutical patent term expires, generic manufacturers enter the market, and pharmacists are either permitted or required to fill prescriptions with lower-cost generic versions of the originally patented drug.67 Thus, patients taking Namenda IR after July 2015 would, in many instances, receive a less-expensive generic version if one were introduced. However, for regulatory reasons, pharmacies would not be permitted to substitute a generic version of Namenda IR for a Namenda XR prescription.68
As the patent term on Namenda IR was close to expiring, Actavis used both "soft-switch" and "hard-switch" strategies to transition Namenda IR patients to Namenda XR.69 Its soft-switch strategies included marketing Namenda XR aggressively to doctors and patients and selling it at a discount.70 Its hard-switch strategy was to take Namenda IR off the market near the end of its patent term, before generics could enter the market, forcing patients who wanted continuity of treatment to switch to Namenda XR, and to provide Namenda IR only through a mail order pharmacy—but only where continued treatment was "medically necessary."71 New York State sought a preliminary injunction against the hard-switch strategy, which the trial court granted.72
The Second Circuit, in an opinion by Judge John Walker, affirmed the preliminary injunction, analyzing Actavis's conduct under Berkey, which held that a monopolist's introduction of a new product is not anticompetitive unless it compels consumers to purchase the new product.73 In the Second Circuit's view, Actavis's hard-switch strategy crossed this line.74 Although the court did not explicitly rule on this issue, its reasoning implicitly endorsed the soft-switch strategy.75 Because evidence that Actavis sought to force the market to switch to the new product before generic substitution could occur made it substantially likely that New York State would succeed on the merits of its monopolization and attempted monopolization claims, the Second Circuit found that it was not an abuse of discretion for the trial court to grant the preliminary injunction.76 The Second Circuit's ruling was consistent with several previous decisions by district courts in other cases involving alleged "product hopping."77
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1 15 U.S.C. § 2 (2012).
2 148 F.2d 416 (2d Cir. 1945).
3 603 F.2d 263 (2d Cir. 1979).
4 Alcoa, 148 F.2d at 423.
5 Id. at 436.
6 Id. at 429.
7 See id. at 429–30.
8 Id. at 424–25.
9 Id. at 425.
10 See id. at 424.
12 Id. at 425.
13 See id. at 422–32.
14 Id. at 425.
15 Id. at 424.
16 Id. at 429 (emphases added).
17 See id. at 429–30.
18 Id. at 430.
20 Id. at 431.
21 See id.
22 Edward D. Cavanagh, Antitrust in the Second Circuit, 65 ST. JOHN'S L. REV. 795, 799 (1991).
23 Berkey Photo Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979).
24 Before the invention of digital cameras, which capture photographs on a built-in sensor, photographers relied on plastic film coated with chemicals that, when exposed to light, recorded images that became visible (in negative image) when treated with other chemicals. Those images could be projected onto similarly coated paper, which could then be treated to develop the image as it appeared in the real world (i.e., the opposite of the negative image on the film). Thus, to take photographs, a photographer needed a camera and film, and someone (either the photographer or a photofinishing lab) had to develop the film and print paper photographs to finish the process. Kodak made and sold all of the necessary products and offered photofinishing services to amateurs who could not, or did not want to, do it themselves after taking pictures.
25 See Berkey, 603 F.2d at 269.
26 Id. at 269–71.
27 Id. at 274.
28 Id. at 274–75.
29 351 U.S. 377 (1956). In du Pont, the dissenting opinion identifies Judge Hand's Alcoa decision as a "landmark section 2 case." Id. at 424 (Warren, C.J., dissenting).
30 See Berkey, 603 F.2d at 268–69 (citing du Pont, 351 U.S. at 391–93).
31 384 U.S. 563 (1966).
32 Berkey, 603 F.2d at 274 (quoting Grinnell, 384 U.S. at 570–71).
33 Grinnell, 384 U.S. at 571.
35 Id. at 275.
36 See id. at 279–85.
37 Id. at 284.
38 Id. at 281.
40 Id. at 275 (citing United States v. Griffith, 334 U.S. 100 (1948); SmithKline Corp. v. Eli Lilly & Co., 575 F.2d 1056 (3d Cir. 1978)).
41 Id. at 281.
43 See id.
44 United States v. Aluminum Co. of Am. (Alcoa), 148 F.2d 416, 423 (2d Cir. 1945).
45 Cavanagh, supra note 22, at 807.
46 See, e.g., Catlin v. Wash. Energy Co., 791 F.2d 1343 (9th Cir. 1986).
47 651 F.2d 76 (2d Cir. 1981).
48 Id. at 79.
49 See id. at 81.
50 Id. at 86 (quoting Phillip E. Areeda & Donald F. Turner, Predatory Pricing and Related Practices Under Section 2 of the Sherman Act, 88 HARV. L. REV. 697, 698 (1975)).
Id. at 88.
53 See id.
57 Id. at 90–91.
58 Id.at 91.
59 Id. at 89–90.
60 The Second Circuit's AT&T decision has been discussed with approval by other circuits addressing similar questions regarding predatory pricing. See, e.g., United States. v. AMR Corp., 335 F.3d 1109 (10th Cir. 2003); MCI Commc'ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081 (7th Cir. 1983).
61 787 F.3d 638 (2d Cir. 2015).
62 Id. at 643 n.2. An appeal on product hopping claims has recently been filed in the Third Circuit. See Mylan Pharm. Inc., v. Warner Chilcott Pub. Ltd., No. 12-3824, 2015 WL 1736957 (E.D. Pa. Apr. 16, 2015), appeal docketed, No. 15-2236 (3d Cir. May 20, 2015).
63 Actavis PLC, 787 F.3d at 646.
64 See id.
65 See id. at 647.
66 Id. at 645 & n.7.
67 See id. at 647.
68 Id. at 647–48.
70 Id. at 648.
71 Id. at 649.
72 Id. at 653 (citing Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 287 n.39 (2d Cir. 1979)).
73 Id. at 654.
74 See id.
75 Id. at 651.
76 See, e.g., Mylan Pharm., Inc. v. Warner Chilcott Pub. Ltd., No. 12-3824, 2015 WL 1736957 (E.D. Pa. Apr. 16, 2015) (granting summary judgment to the defendant even though it withdrew an old product from the market, because the relevant market contained a variety of similar products); In re Suboxone Antitrust Litig., 64 F. Supp. 3d 665, 685 (E.D. Pa. 2014) (holding that allegations that a pharmaceutical company threatened to remove a product from the market and did remove it a few weeks after entry of generic into market stated a viable Sherman Act claim); Walgreen Co. v. AstraZeneca Pharm. L.P., 534 F. Supp. 2d 146, 150–52 (D.D.C. 2008) (dismissing Sherman Act claims because the plaintiffs had not alleged that any consumer choices were eliminated).
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