Antitrust Restoration from California Anchored by a New Monopolization Synthesis

COMPETITION | VOLUME 33, NUMBER 1, SPRING 2023

16 Pages Posted: 16 Oct 2023

Date Written: September 1, 2023

Abstract

California is past due for an anti-monopoly law. With federal antitrust legislation stalled and monopolization cases slowly wending through the courts, the Law Revision Commission has begun considering how to amend the Cartwright Act to prohibit antitrust violations committed by a single firm. The attention is well deserved: Many U.S. markets are now effectively controlled by a company or small set of companies.

The new law should adopt specific principles and presumptions, rather than remaining vague like the Sherman Act. Monopolization standards have become “not just vague but vacuous”—a description that is “hard to disagree with.” An FTC official told The New Yorker: “You really have to be an expert, or hire an expert attorney, if you feel like one of these companies is acting inappropriately. The law only works when it is simple enough for the little guy to bring an action on their own.”

The increased acknowledgment of excessive concentration creates an opportunity to codify earlier, twentieth-century approaches to monopoly power, market definition, and remedies. California’s business code and common law already can be applied to curtail market dominance and exclusionary conduct, which may explain why no legislation followed the California Supreme Court’s holding in 1988 that the Cartwright Act’s ban on trusts does not extend to single-firm conduct. As that very decision shows, however, California’s competition laws are distinct from (and in certain cases may reach further than) federal law. But neither state nor federal law has proved capable of holding back the tide of consolidation.

The present antitrust moment is California’s to meet. The new law should establish a presumption of illegality upon a showing that the defendant holds monopoly power in a relevant product market within the state. The court should apply common sense and look at historical facts—particularly consumer behavior, industry presuppositions, profit levels, and market-share trajectory—when analyzing the elements of monopoly power and market definition. The defendant may prevail by showing the necessity or clear desirability of single-firm control or the absence of anticompetitive effects. Its conduct should not be an element of the offense because the continuing existence of a monopoly tends to harm public welfare, irrespective of how it was acquired or is being maintained. Finally, the law should empower the court to divest a monopolist’s business divisions or assets, a traditionally effective remedy.

The authorities cited throughout this Comment demonstrate these principles of trade regulation are all well founded. To best assist with dislodging the current overconcentration, the Legislature should enact them.

Keywords: Antitrust, Monopoly, Monopolization, Monopoly Power, Monopoly Profits, Market Power, Market Definition, Divestiture, California Antitrust, Cartwright Act

Suggested Citation

Elias, Jordan, Antitrust Restoration from California Anchored by a New Monopolization Synthesis (September 1, 2023). COMPETITION | VOLUME 33, NUMBER 1, SPRING 2023, Available at SSRN: https://ssrn.com/abstract=4559313

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