Hybrid Single Entities and the Market Power Requirement for Conspiracies to Monopolize Following Fraser

Are Courts Putting Form over Substance?

There are three distinct crimes under section 2 of the Sherman Act: mo-nopolization, attempt to monopolize, and conspiracy to monopolize. While courts generally require some proof of market power for the first two offenses, courts differ as to whether the market power requirement applies to conspiracy cases. In cases involving “hybrid” single entities, requiring proof of market power in conspiracy cases could effectively re-move such entities from the reach of section 2.This note argues that courts should not interpret section 2 of the Sherman Act to require proof of market power in conspiracy cases. After briefly examining the history and intent of the Sherman Act, the note proposes that market power should not be required in section 2 conspiracy cases because of the text of section 2 and because intent, not likelihood of suc-cess, is the gravamen of a conspiracy claim. Furthermore, the note stresses that special considerations in cases of hybrid single entities, such as sports leagues, caution against requiring proof of market power in section 2 conspiracy cases. A contrary policy, the note argues, would al-low such entities to freely engage in anticompetitive behavior.

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