1. Whether deceptive conduct that significantly contributes to a defendant’s acquisition of monopoly power violates Section 2 of the Sherman Act.
2. Whether deceptive conduct that distorts the competitive process in a market, with the effect of avoiding the imposition of pricing constraints that would otherwise exist because of that process, is anticompetitive under Section 2 of the Sherman Act.
The FTC also argues that the D.C. Circuit’s decision is “at odds” with the Third Circuit’s analysis in Broadcom which creates a “conflict” on causation issues related to competitive harm which “cuts to the core of the analysis of harm to the competitive process.” Commentary later.