In our recent blog symposium on Section 5 of the FTC Act, Latham & Watkins partner Tad Lipsky exposed one of antitrust’s dark little secrets: Nobody really knows what Sherman Act Section 2 forbids. The provision bans monopolization, attempted monopolization, and conspiracies to monopolize, and courts have articulated formal elements for each claim. But the element common to the two unilateral offenses—“exclusionary conduct”—remains essentially undefined. Lipsky writes:
123 years of Section 2 enforcement and the best our Supreme Court can do is the Grinnell standard, defining [exclusionary conduct] as the “willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.” Is this Grinnell definition that much better than [Section 5’s reference to] “unfair methods of competition”?
No, it’s not. Nor are any of the other commonly cited judicial definitions of exclusionary conduct, such as “competition not on the merits.” As Einer Elhauge has observed, such judicial definitions are not just vague but vacuous.
This is problematic because business planners need clarity. On some specific unilateral practices—straightforward price cuts and aggressive input-bidding, for example—courts have provided clear liability rules and safe harbors. But in a dynamic economy, business people are constantly coming up with new ideas for sales-enhancing practices that might have the effect of disadvantaging rivals, of “excluding” them from the market. Absent some general understanding of what constitutes an “unreasonably exclusionary” act, business people are likely to forego novel but efficient sales-enhancing practices, to the detriment of consumers.
In the last decade or so, commentators have proposed four generally applicable definitions of unreasonably exclusionary conduct. Judge Posner suggested that such conduct be defined as acts that could exclude an “equally efficient rival” from the perpetrator’s market (the “EER” approach). Post-Chicago theorists would equate unreasonably exclusionary conduct with unjustifiably “raising rivals’ costs” (the “RRC” approach). The Areeda-Hovenkamp treatise prescribes a balancing of the “consumer welfare effects” resulting from the practice at issue (“CWE-balancing”). And the U.S. Department of Justice has called for defining unreasonably exclusionary conduct as that which would make “no economic sense” apart from its tendency to enhance market power (the “NES” test, or “NEST”).
Each of these approaches, it turns out, is troubling. The EER approach is underdeterrent in that it fails to condemn practices that cause rivals to be less efficient than the perpetrator. The RRC, CWE-balancing, and NEST approaches turn out to be difficult to apply—and largely indeterminate—for any exclusion-causing conduct involving “degrees.” For example, a 15% loyalty rebate conditioned upon purchasing 70% of one’s requirements from the defendant requires a certain “degree” of loyalty and provides a certain “degree” of price reduction. It might well turn out that some degree of required loyalty (e.g., the increment from 60% to 70%) or some degree of discount (e.g., the increment from 10% to 15%) either (1) raised rivals’ costs unjustifiably (RRC) or (2) created greater consumer harm than benefit (CWE-balancing) or (3) made no economic sense but for its ability to enhance market power (NEST). Because the RRC, CWE-balancing, and NEST approaches appear to require marginal analysis of exclusion-causing conduct, they become fairly inadministrable and indeterminate when applied to conduct involving degrees, a category that includes most of the novel conduct for which a generally applicable exclusionary conduct definition would be useful. Because they provide little guidance and no reliable safe harbors, the RRC, CWE-balancing, and NEST approaches are likely to overdeter efficient, but novel, business practices.
In light of these and other difficulties with the proposed exclusionary conduct definitions, a number of scholars now advocate abandoning the search for a generally applicable definition and applying different liability standards to different types of behavior. Eschewal of universal standards, though, is also troubling. To the extent non-universalists are saying that there is no single definition of unreasonably exclusionary conduct—no common thread that runs through all instances of unreasonable exclusion—their position seems to violate rule of law norms. After all, the Court has told us that unreasonably exclusionary conduct is an element of monopolization and attempted monopolization. That means that the exclusionary conduct component of all Section 2 offenses must share something in common; otherwise, the “element” would consist of a non-exhaustive menu of unrelated features and would cease to be an element.
A less extreme “non-universalist” approach would concede that there is a single definition of unreasonably exclusionary conduct—that which reduces overall consumer welfare—but hold that there should be no universal test for identifying when a particular practice runs afoul of the definition. This more defensible position resembles “rule utilitarianism” in ethical theory. Rule utilitarians concede that morality is ultimately concerned with utility-maximization, but they would judge the morality of any particular act not on the basis of its actual consequences but instead according to whether it complies with a rule selected to maximize utility. Similarly, “soft” non-universalists would select liability tests for particular business practices on the basis of whether those tests maximize overall consumer welfare, but they would evaluate particular instances of exclusion-causing behavior on the basis of whether they comply with applicable liability tests, not whether they actually enhance consumer welfare.
Because it reduces to a version of CWE-balancing (though at the rule level rather than the act level), “soft” non-universalism is subject to the same criticisms as CWE-balancing in general: it is difficult to apply and indeterminate. Indeed, under a soft non-universal approach, a business planner considering a novel but efficient exclusion-causing practice would first have to predict the liability rule a reviewing court would adopt for the practice under consideration and then apply that rule. Talk about a lack of clarity and reliable safe harbors!
I have recently authored a paper that critiques the proposed definitions of unreasonably exclusionary conduct as well as the non-universalist approaches discussed above and, finding each position deficient, proposes an alternative approach. My approach would deem conduct to be unreasonably exclusionary if it would likely exclude from the perpetrator’s market a “competitive rival,” defined as a rival that is both as determined as the perpetrator and capable, at minimum efficient scale, of matching the perpetrator’s efficiency. This “exclusion of a competitive rival” approach, the paper demonstrates, identifies a common thread running through instances of unreasonable exclusion, comports with prevailing intuitions about what constitutes appropriate competition, generates clear guidance and reliable safe harbors, and would minimize the sum of decision and error costs resulting from monopolization doctrine.
A draft of the paper, which is slated to appear as an article in the North Carolina Law Review, is available on SSRN. Please download, and let me know if you have any comments.