14 Pages Posted: 19 Sep 2009 Last revised: 8 Oct 2009
Date Written: September 17, 2009
There is an oft-repeated maxim that a monopolist’s conduct must be examined in its totality since it is “the mix of various ingredients... in a monopoly broth that produces the unsavory flavor.” This maxim is subject to use and abuse. In this symposium essay, I propose three principles for a correct normative understanding of the “monopoly broth” maxim. First, independently lawful conduct - such as above-cost pricing, refusals to deal, or functionality-enhancing product innovations - should never be added to a “broth” to create liability. Second, where the legality of certain conduct - particularly exclusive dealing, tying, and similar conduct - turns on the degree of market foreclosure, aggregating the defendant’s various exclusive-dealing-like practices is necessary to determine legality. Finally, where the defendant commits independently unlawful acts “such as torts, crimes, breaches of contract, or regulatory violations” that purportedly serve to monopolize the market, the conduct should only be combined in a “broth” for litigation purposes if the plaintiff offers a robust explanation of the synergistic effects of the disparate forms of bad behavior.
Keywords: monopoly broth
JEL Classification: K21
Suggested Citation: Suggested Citation
Crane, Daniel A., Monopoly Broth Makes Bad Soup (September 17, 2009). Antitrust Law Journal, Forthcoming; University of Michigan Public Law Working Paper No. 163; U of Michigan Law & Economics, Olin Working Paper No. 09-020. Available at SSRN: https://ssrn.com/abstract=1474954