The typical lawyer in Colorado does not make his or her living

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1 Reproduced by permission Colorado Bar Association 43 The Colorado Lawyer 19 (October 2014). All rights reserved. ANTITRUST AND CONSUMER PROTECTION LAW Antitrust for All: A Primer for the Non-Antitrust Practitioner by Benjamin J. Larson Antitrust laws generally guard against business behaviors that reduce competition, thereby harming consumers. This article is a primer on the central federal antitrust laws namely, Sections 1 and 2 of the Sherman Act with a focus on the Colorado practitioner. In general, if any branch of trade, or any division of labour, be advantageous to the public, the freer and more general the competition, it will always be the more so. Adam Smith 1 The typical lawyer in Colorado does not make his or her living trying antitrust cases. Nevertheless, a basic understanding of antitrust law is a valuable tool in nearly any lawyer s practice, because the principles of fair business competition pervade so many aspects of our lives. To that end, this article explores the two primary antitrust claims asserted by private plaintiffs, and some of the special considerations that arise in asserting and defending against such claims. Historical and Statutory Overview The idea that competition benefits markets is an old one. Certain market protections have long existed at common law. These protections were loosely codified in the Sherman Antitrust Act of and subsequently expanded in the Clayton Antitrust Act of Prior to the Sherman Act s enactment in 1890, the country was facing an ever-increasing gap between rich and poor, due in part to certain industries being controlled by a small number of large companies. 4 This phenomenon was exemplified by John D. Rockefeller s Standard Oil Trust, a conglomerate that by 1890 had gained a stranglehold over the country s oil industry from top to bottom. 5 The Standard Oil Trust ultimately was broken up as a result of the Supreme Court s decision in Standard Oil Co. v. United States, the first seminal case to apply the Sherman Act. 6 Federal Antitrust Laws Generally stated, the purpose of the federal antitrust laws is to guard against conduct that unfairly restricts competition in the marketplace and thereby harms consumers. 7 Colorado has its own Antitrust Act that is closely modeled after the Sherman and Clayton Acts, but it has not been heavily litigated over the past twenty years. 8 Consequently, this article focuses on federal antitrust laws, and specifically, on the two primary federal causes of action asserted by private plaintiffs: claims under Section 1 and Section 2 of the Sherman Act. 9 These causes of action guard against two types of business practices. Section 1 of the Sherman Act prohibits concerted activity for example, agreements to restrain trade. 10 Section 2 of the Sherman Act prohibits monopolization of markets, whether by concerted or unilateral activity. 11 These two statutory sections, which have carried much weight for more than a century, are highlighted by their breadth and brevity. The substantive provisions of Sections 1 and 2 of the Sherman Act amount to one sentence each and could be literally construed to prohibit a wide variety of everyday business activities. Consequently, the courts, led by the U.S. Supreme Court, have been left to shape antitrust law with the changing times, while keeping in mind the guiding principle, so strikingly similar to Adam Smith s observations centuries before, that: [T]he unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress. 12 Sherman Act, Section 1 Conspiracies to Unreasonably Restrain Trade Pursuant to Section 1 of the Sherman Act, [e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. 13 Thus, to establish a Section 1 violation, a plaintiff must show (1) concerted action by contract, combination, or conspiracy; and (2) an unreasonable restraint of trade. 14 About the Author Benjamin J. Larson is an associate at Ireland Stapleton Pryor & Pascoe, PC, where he practices in the firm s commercial litigation group. In a former life, he received his undergraduate degree in economics. He has long since become a lawyer, and although he loves the law, he still occasionally daydreams about having pursued a graduate degree in economics. In reality, he lives vicariously through antitrust law blarson@irelandstapleton.com. The Colorado Lawyer October 2014 Vol. 43, No

2 Conspiracy Requirement It Takes Two to Tango One person acting alone cannot violate Section 1 of the Sherman Act. 15 Instead, unilateral actions are subject to Section 2 of the Sherman Act and its tougher monopolization requirement. To satisfy the conspiracy requirement, a plaintiff must prove a plurality of actors that is, more than one and concerted action among them. 16 Although the plurality requirement may appear simple at first blush, a number of wrinkles arise when determining whether business entities should be treated as a single entity for purposes of a Section 1 analysis. For example, two legally distinct entities can be treated as one in some circumstances, and a single distinct entity comprised of independent interests can be treated as a plurality in others. 17 The single entity inquiry hinges on whether there is a contract, combination,... or conspiracy amongst separate economic actors pursuing separate economic interests, such that the agreement deprives the marketplace of independent centers of decisionmaking and therefore of diversity of entrepreneurial interests and thus of actual or potential competition. 18 The guidance from the Supreme Court on this issue is less than clear; however, a few concrete rules can be stated. First, a business entity and its officers and employees are typically treated as one person for conspiracy purposes. 19 Additionally, a parent company and its wholly owned subsidiaries cannot conspire with one another. 20 However, a business venture that is technically a single entity, but in reality is controlled by a group of competitors, will not be treated as a single entity. 21 Once the plaintiff establishes a plurality of players, it must establish concerted action among them. No formal agreement is required. Rather, the evidence need show only a conscious commitment to a common scheme designed to achieve an unlawful objective, and exclude the possibility that the defendants were pursuing independent interests. 22 Smoking gun evidence of concerted activity is rare; consequently, this element typically is satisfied by circumstantial evidence. However, a plaintiff relying on only circumstantial evidence also must show that the conspiracy alleged would be economically rational that is, that defendants would have a plausible motive to benefit their individual economic interests. 23 Restraints of Trade A restraint of trade is simply a limitation on competition in a market. Section 1 could be read to prohibit all restraints of trade; however, for a long time, the Supreme Court has limited Section 1 to prohibiting only unreasonable restraints of trade. 24 Certain categories of restraints are deemed unreasonable simply because of the nature of the restraint, without regard to the defendants intent or the restraint s actual impact on competition. 25 These restraints are called per se offenses. If the defendants conduct falls within the category of a per se offense, the plaintiff need only show the existence of the conduct to establish a Section 1 violation. Restraints that do not fall within the relatively narrow confines of the per se offenses are judged under the rule of reason standard. Under this standard, the fact finder must assess whether the procompetitive effects of the conduct in question outweigh its anticompetitive effects. 26 In the Tenth Circuit, this is done using a burden-shifting approach whereby the plaintiff first must come forward with evidence that the agreement has a substantially adverse effect on competition. 27 If the plaintiff does so, the defendant then must produce evidence of the pro-competitive effects of the conduct in question. 28 Then, the burden shifts back to the plaintiff to show that the pro-competitive effects could be achieved through less restrictive means. 29 One of the most important factors in this analysis and a threshold issue in the Tenth Circuit is whether the defendant possesses market power in the relevant market where the alleged conduct occurred. 30 Market power and relevant market are two important economic concepts that run throughout almost all of antitrust law. To understand whether a defendant possesses market power, a plaintiff first must establish the relevant market in which to make that assessment. 31 The relevant market is broken down into product and geographic markets. 32 As stated in Green Country Food Market, Inc. v. Bottling Group, LLC, [a] relevant product market consists of products that have reasonable interchangeability for the purposes for which they are produced price, use and qualities considered. 33 For example, if a defendant is a lemonade producer, the product market likely would not be limited to lemonade; if the lemonade producer tried to squeeze consumers by increasing prices, consumers likely would quench their thirst by turning to any number of substitutes, such as iced tea, soft drinks, or other fruit drinks. However, if the defendant is a dairy milk producer, the product market would be more narrowly construed, because consumers are less likely to turn to an alternative product. The geographic market, on the other hand, consists of the geographic area in which a consumer can realistically find an alternative supply in the event a producer increases prices. For example, if two neighborhood children conspire to operate the only lemonade stand on your block, the geographic market likely would not be limited to your block. You could turn to any number of nearby lemonade suppliers for example, a gas station or a grocery store. However, you probably would not drive to another town or across town to get your lemonade. Once the parameters of the relevant market are established, the next step in this threshold inquiry is to determine whether the defendant has market power in the relevant market. Market power generally means that a defendant has the power to raise its prices on goods or services for a sustained period of time by limiting the amount produced. 34 In a competitive market, a producer would be unable to do so because it would lose sales to other sellers in the market and go out of business. Although the market power analysis may appear relatively straightforward, it usually is very complicated, requiring extensive discovery and the testimony of an economic expert. For this reason, one of the crucial determinations in a Section 1 case is whether the defendants conduct is assessed as a per se violation (not requiring market power analysis) or under the rule of reason standard (requiring market power analysis). The distinction between per se and rule of reason offenses depends, in large part, on the structure of the conspiracy producing the restraint. Horizontal and Vertical Conspiracies. Section 1 conspiracies generally come in one of two flavors: horizontal or vertical. Horizontal conspiracies involve conspirators at the same level in the distribution chain that are direct competitors (for example, Ford and Chevrolet). Conspiracies among horizontal competitors result in horizontal restraints of trade. 35 Vertical conspiracies involve con- 20 The Colorado Lawyer October 2014 Vol. 43, No. 10

3 spirators at different levels in the distribution chain that are not direct competitors (for example, a manufacturer and a distributor). Vertical conspiracies result in vertical restraints of trade. 36 Horizontal restraints of trade generally are treated as per se offenses, because courts are more skeptical about agreements among direct competitors, who typically do not have reason to cooperate absent ulterior motives. The classic example is horizontal price fixing, where competitors agree to non-competitive pricing. In contrast, cooperation is a necessity for companies at different levels in the distribution chain and, consequently, vertical restraints are almost always subject to the rule of reason standard. 37 In some instances, courts will perform an abbreviated rule of reason analysis (often referred to as a quick look analysis) for certain categories of horizontal and vertical restraints that are not worthy of per se treatment but nevertheless are suspicious enough on their face that a plaintiff s burden in proving anticompetitive effects is reduced. 38 Sherman Act, Section 2 Anti-Monopolization Pursuant to Section 2 of the Sherman Act, any person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade of commerce among the several States, or with foreign nations, is guilty of a crime. Unlike Section 1, Section 2 of the Sherman Act applies to both unilateral and concerted action, but only if that action monopolize[s], or threatens actual monopolization, a category that is narrower than restraint of trade. 39 There are three distinct offenses that fall within the gamut of Section 2: (1) actual monopolization, (2) attempts to monopolize, and (3) conspiracies to monopolize. 40 Actual Monopolization: Hotels on Boardwalk Not Permitted Actual monopolization has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power. 41 Monopoly power is similar to market power used in the Section 1 context; however, monopoly power requires something greater than market power under In the Tenth Circuit, market power is defined as the ability to control prices and exclude competition. 43 It is worth noting that because a defendant needs to have only the ability to control prices and exclude competition, monopoly power is proscribed even though it remains unexercised. 44 Absent direct evidence that the defendant exercised monopoly power to raise prices and exclude competition (which is rare), courts consider the defendant s market share in the relevant market to assess whether the defendant possesses monopoly power. However, in the Tenth Circuit, evidence of market share alone cannot establish monopoly power. 45 Other factors must be present that illustrate the defendant s ability to maintain its high market share, including, for example, high barriers to entry to the market or shortage of capacity. 46 Once monopoly power is established, a plaintiff must show that the defendant willfully acquired or maintained its monopoly that is, that the defendant engaged in exclusionary conduct. 47 This element exists because the Sherman Act does not take issue with companies that grow their market share as a consequence of a superior product, business acumen, or historic accident. 48 In the Tenth Circuit, intent to exclude a competitor, by itself, is not sufficient to establish the exclusionary conduct element. 49 The plaintiff must show that the defendant actually engaged in some type of exclusionary conduct. 50 There are various means by which to prove the defendant willfully engaged in exclusionary conduct; evidence that the conduct would not make economic sense absent the anticompetitive effects will generally suffice. 51 Examples of exclusionary conduct include predatory pricing 52 and refusals to deal with another company. 53 Attempted Monopolization: Close Enough May Count A claim for attempted monopolization requires a plaintiff to prove: (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power. 54 Attempted monopolization is similar to a claim for actual monop- The Colorado Lawyer October 2014 Vol. 43, No

4 olization, except the plaintiff must prove specific rather than general intent to monopolize (a higher threshold) and a dangerous probability of success in monopolizing the relevant market, rather than actual monopolization (a lower threshold). The specific intent element requires something more than merely an intent to compete vigorously in the market using anticompetitive means; the defendant also must intend to achieve monopoly power through those anticompetitive means. 55 Because direct evidence of specific intent is rare, indirect evidence that the defendant engaged in egregious anticompetitive conduct for example, a per se violation will suffice to establish specific intent. 56 With respect to monopoly power, a lower threshold is required for an attempted monopolization claim than for an actual monopolization claim. Thus, whereas a 70% market share may be necessary to establish an actual monopolization claim, a 50% share likely would suffice to establish an attempted monopolization claim. Conspiracy to Monopolize: A Window for Plaintiffs A claim for conspiracy to monopolize requires a plaintiff to prove: 1) the existence of a combination or conspiracy to monopolize; 2) overt acts done in furtherance of the combination or conspiracy; 3) an effect on an appreciable amount of interstate commerce; and 4) a specific intent to monopolize. 57 The claim is unique from a few standpoints. First, the overt act element is a lower threshold than the anticompetitive conduct element found in the other Section 2 claims, because the overt act need not be independently anticompetitive. 58 Perhaps more important, the Tenth Circuit does not require a plaintiff to establish the relevant market or show that the defendant monopolized or came dangerously close to monopolizing that market. 59 Consequently, because the market power analysis often is a difficult obstacle for plaintiffs to overcome, the conspiracy to monopolize claim provides an opportunity not available under the other Sections 1 and 2 claims. Special Considerations and Defenses in Asserting Antitrust Claims A number of special considerations arise when asserting or defending against antitrust claims. Large bodies of case law have developed around these issues, including the antitrust injury requirement and the antitrust immunities, which are addressed here. Antitrust Injury: Antitrust Law Protects Competition Not Competitors To encourage private enforcement, automatic trebling of damages is available on antitrust claims. 60 The potential for abuse of private rights of action is tempered by the requirement that a private plaintiff must show it suffered injury of the type the antitrust laws was intended to prevent that is, antitrust injury as opposed to simply showing that the plaintiff was harmed by the defendant. 61 If a plaintiff cannot show antitrust injury, it lacks 22 The Colorado Lawyer October 2014 Vol. 43, No. 10

5 standing to sue. 62 The antitrust injury requirement is satisfied by showing that the plaintiff s injury flows from the competitionreducing aspects of the defendant s conduct. 63 In contrast, if a plaintiff merely falls prey to vigorous competition by the defendant, anti trust remedies are not available, because the antitrust laws were enacted for the protection of competition not competitors. 64 Antitrust Immunities Various statutory and common law immunities exist to limit the scope of the antitrust laws. 65 Two of the most common immunities, which are addressed here, relate to government action. First, pursuant to the Parker doctrine (sometimes referred to as state action immunity ), actions of state governments usually are immune from antitrust laws. 66 Thus, if a state government decides to heavily regulate a certain industry, such as marijuana production and sales, its actions will not violate antitrust laws, even though such actions restrain trade. There are two well-established exceptions to state action immunity. First, if a state government delegates its authority to a local government that acts to restrain trade, then the local government must show its actions were taken pursuant to a clearly articulated and affirmatively expressed state policy to displace competition. 67 Second, if a state government delegates its authority to a private person who acts to restrain trade, then the private person must show (1) his or her actions were taken pursuant to a clearly articulated and affirmatively expressed state policy to displace competition, and (2) the policy is actively supervised by the state government. 68 The Supreme Court has hinted at a commercial or market participant exception to state action immunity, where the state acts not in a regulatory capacity but as a commercial participant in a given market. 69 The circuits that have addressed the issue are split, with the Tenth Circuit yet to weigh in on the matter. In addition to state government actions, immunity generally is available to private parties petitioning the government to enact laws that restrain trade. This immunity is referred to as Noerr-Pennington Immunity, a title derived from the early Supreme Court cases establishing the immunity. 70 Whether the petitioning in question will be immune depends on its source, context, and nature. 71 Noerr-Pennington Immunity will not apply where the petitioning is a sham that is, where the petitioner has no concern for the actual outcome of the petitioning but instead uses the petition process itself to restrain trade. 72 Regardless of the immunities in place, when considering a suit involving local governments, private plaintiffs must consider the Local Government Antitrust Act of Although it does not create immunity, this act generally bars recovery of antitrust money damages for actions by local governments or by their officials and employees when taken in an official capacity. 74 Conclusion Sections 1 and 2 of the Sherman Act remain as relevant today as they were nearly 125 years ago. Additionally, the basic principles of competition that underlie Sections 1 and 2 claims recur throughout this October issue and all of antitrust law. This article has provided a foundation on which the non-antitrust practitioner can build his or her understanding of antitrust law. Notes 1. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 329 (1776) USC 1 to USC 12 to See Standard Oil Co. v. United States, 221 U.S. 1, 50 (1911): [T]he main cause which led to the legislation was the thought that it was required by the economic condition of the times, that is, the vast accumulation of wealth in the hands of corporations and individuals, the enormous development of corporate organization, the facility for combination which such organizations afforded, the fact that the facility was being used, and that combinations known as trusts were being multiplied, and the widespread impression that their power had been and would be exerted to oppress individuals and injure the public generally. 5. See Lloyd, Story of a Great Monopoly, The Atlantic (March 1, 1881), (a famous period exposé of Standard Oil). 6. Standard Oil Co., 221 U.S. at See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 458 (1993): The purpose of the Sherman Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself. 8. See Colorado Antitrust Act of 1992, CRS to 122. By statute, Colorado courts shall use as a guide interpretations given by the federal courts to comparable federal antitrust law, and therefore a Colorado and federal court s treatment of the conduct in question is likely to be similar. One of the primary differences between the federal and state laws is that the Colorado Antitrust Act does not have an interstate commerce requirement. Compare CRS and -105 with 15 USC 1 and 2 (applying to trade or commerce among the several states ). However, the Sherman Act s interstate commerce requirement usually is easily satisfied because, even if the conduct occurs at only a local level, it still will satisfy the interstate requirement, as long as the conduct tangentially affects interstate commerce. See Anesthesia Advantage, Inc. v. Metz Group, 912 F.2d 397, 400 (10th Cir. Colo. 1990). 9. The scope of federal antitrust laws is broader than Sections 1 and 2 of the Sherman Act. Perhaps most important, Section 7 of the Clayton Act generally prohibits business acquisitions, e.g., mergers, the effect of which probably will be to substantially lessen competition or create a monopoly. 15 USC 18. Section 7 is a powerful tool used by government regulators to scrutinize large business acquisitions and mergers. In fact, certain transactions are reviewed prospectively through pre-merger review pursuant to the Hart-Scott-Rodino Act. 15 USC 18a. The Clayton Act also addresses other anti-competitive activities, including certain instances of price discrimination (through amendment by the Robinson- Patman Act of 1936), in addition to certain tying agreements, exclusive dealing agreements, and requirements contracts, the effect of which may be to substantially lessen competition. 15 USC 13 and USC USC N. Pac. Ry. Co. v. United States, 356 U.S. 1 (1958) USC 1. As stated in Section 1, conspiracies to restrain trade are illegal and the Sherman Act provides for criminal penalties. See id. A private right of action under Sections 1 and 2 of the Sherman Act is conferred by Section 4 of the Clayton Act. See 15 USC 15(a) (stating that any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue ). 14. See Systemcare, Inc. v. Wang Labs. Corp., 117 F.3d 1137, 1139 (10th Cir. 1997). As discussed above, both Section 1 and Section 2 claims require an impact on interstate commerce. However, the Tenth Circuit often recites the elements of a Section 1 violation without including the interstate commerce element, perhaps because the interstate commerce The Colorado Lawyer October 2014 Vol. 43, No

6 element typically is a formality. For this reason, the interstate commerce requirement is not addressed in this article. 15. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767 (U.S. 1984). 16. Bell v. Fur Breeders Agric. Coop., 348 F.3d 1224, 1232 (10th Cir. 2003). 17. Am. Needle, Inc. v. Nat l Football League, 130 S.Ct. 2201, 2209 (2010). 18. Id. at 2212 (internal citations and quotations omitted). In American Needle, the Supreme Court unanimously rejected the National Football League s argument that it should be treated as a single entity, because the NFL is comprised of teams that are independent entities with separate corporate consciousnesses and uncommon objectives. 19. Copperweld, 467 U.S. at 769. Exceptions exist, however, such as when the officer or employee has an independent personal stake in the action being taken (Motive Parts Warehouse v. Facet Enters., 774 F.2d 380, 387 (10th Cir. 1985)). 20. Id. at United States v. Sealy, Inc., 388 U.S. 350, (1967). 22. Monsanto v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984); Gibson v. Greater Park City Co., 818 F.2d 722, 724 (10th Cir. 1987). 23. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1084 (10th Cir. 2006). See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007) (applying economic rationality standard at motion to dismiss stage). 24. Standard Oil Co., 221 U.S. at 59-60; Bd. of Trade of the City of Chicago v. United States, 246 U.S. 231, 238 (1918). 25. N. Pac. Ry. Co., 356 U.S. at 5: [C]ertain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. 26. City of Chicago, 246 U.S. at See Gregory v. Fort Bridger Rendezvous Ass n, 448 F.3d 1197, 1203 (10th Cir. 2006). 28. Id. 29. Id. 30. SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 965, (10th Cir. 1994); Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1119 (10th Cir. 2008): Most claims under 1 are subject to the rule of reason, which requires us to analyze the relevant market power of the defendants and therefore requires the plaintiff to allege a valid market. 31. Green Country Food Mkt., Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1281 (10th Cir. 2004). 32. Id. 33. Id. (quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 404 (1956)). 34. See SCFC ILC, Inc., 36 F.3d at 965, n See Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 730 (1980). Horizontal restraints include, among others, price fixing, market allocations, and refusals to deal. 36. Id. Vertical restraints include, among others, price restraints, tying agreements, and exclusive dealing agreements. 37. See Campfield, 532 F.3d at 1119 (discussing the distinction between horizontal and vertical restraints). The evolving treatment of vertical restraints under the rule of reason standard is reflected in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S.Ct (2007), in which the Court concluded that vertical price fixing, regardless of its form, is not a per se offense. See Robertson, Antitrust Laws: Why Small Businesses Should Care, 43 The Colorado Lawyer 53 (Oct. 2014) (for further treatment of restraints of trade). 38. For a more detailed discussion of when the quick-look analysis applies, see Cal. Dental Ass n v. FTC, 526 U.S. 756, (1999). For a more detailed discussion concerning the application of the quick-look analysis, see NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 110 (1984). 39. Am. Needle, Inc. v. NFL, 560 U.S. 183, 190 (2010). 40. Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1348 n.16 (3d Cir. 1975). 41. Id. at Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 481 (1992). 43. Shoppin Bag of Pueblo, Inc. v. Dillon Cos., 783 F.2d 159, 164 (10th Cir. 1986) (emphasis in original). In most circuits, monopoly power is defined as the ability to control prices or exclude competition. 44. United States v. Griffith, 334 U.S. 100, 107 (1948). 45. Reazin v. Blue Cross & Blue Shield of Kan., Inc., 899 F.2d 951, (10th Cir. 1990). See also Bright v. Moss Ambulance Serv., Inc., 824 F.2d 819, 824 (10th Cir. 1987) ( market share alone is insufficient to establish market power ). The circuits are split on this issue. 46. Reazin, 899 F.2d at (discussing additional factors that should be analyzed in addition to market share). 47. United States v. Grinnel Corp., 384 U.S. 563, (1966). 48. Chanute v. Williams Natural Gas Co., 955 F.2d 641, 654 (10th Cir. 1991). 49. Rural Tel. Service Co. v. Feist Publications, Inc., 957 F.2d 765, 769 (10th Cir. 1992). 50. Id. 51. DOJ, Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act (2008); Instruction Sys. Dev. Corp. v. Aetna Cas. & Sur. Co., 817 F.2d 639, 649 (10th Cir. 1987). 52. Courts recently have questioned whether predatory pricing schemes are economically irrational and, thus, whether they constitute anticompetitive conduct. See United States v. AMR Corp., 335 F.3d 1109 (10th Cir. 2003). 53. Verizon Commc ns, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, (2004) (addressing when a company has a duty to cooperate with a rival such that its failure to do so can give rise to liability). Additional examples of potentially exclusionary conduct include tying and exclusive dealing arrangements aimed at excluding rivals from distribution channels and sham intellectual property litigation. 54. Spectrum Sports, 506 U.S. at 456. As with the other Sherman Act claims, the Tenth Circuit requires a plaintiff to establish the relevant market as a threshold matter. Medical Supply Chain, Inc. v. GE, 144 Fed. Appx. 708, (10th Cir. 2005). 55. Spectrum Sports, 506 U.S. at 459. See also Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 626 (1953). 56. Spectrum Sports, 506 U.S. at 459 (suggesting that proof of the anticompetitive acts may be sufficient to prove specific intent). See also Shoppin Bag of Pueblo, 783 F.2d at 163 ( Often no direct evidence of specific intent exists and inferences from conduct are necessary. ) 57. Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1028 (10th Cir. 2002). 58. Am. Tobacco Co. v. United States, 328 U.S. 781, 809 (1946). 59. Monument Builders of Greater Kansas City, Inc. v. Am. Cemetery Ass n, 891 F.2d 1473, 1484 (10th Cir. 1989) USC 15 (authorizing private actions for money damages) and 26 (authorizing private actions for injunctive relief). 61. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). 62. Id. 63. Full Draw Prods. v. Easton Sports, Inc., 182 F.3d 745, 750 (10th Cir. 1999) (holding antitrust injury requirement satisfied where defendants exclusionary conduct resulted in competitor going out of business). 64. Brunswick, 429 U.S. at 488 (internal citations omitted). 65. A discussion of all the immunities and exemptions to the antitrust laws is beyond the scope of this article. These include, for example, immunities for labor unions (15 USC 17; 29 USC 52; 29 USC 101 to 115); insurance companies (29 USC 101 to 115); and professional sports (15 USC 1291 to 1295). 24 The Colorado Lawyer October 2014 Vol. 43, No. 10

7 66. Parker v. Brown, 317 U.S. 341 (1943). See also City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, Allright Colo., Inc. v. City & County of Denver, 937 F.2d 1502, 1507 (10th Cir. 1991) (citing Town of Hallie v. City of Eau Claire, 471 U.S. 34, (1985)). See FTC v. Phoebe Putney Health Sys., 133 S.Ct. 1003, 1011 (2013) (a recent decision addressing this test). 68. Cal. Retail Liquor Dealers Ass n v. Midcal Aluminum, 445 U.S. 97, 105 (U.S. 1980). The Tenth Circuit has indicated that the second prong of the test is unnecessary where a private actor lacks discretion in its actions. Zimomra v. Alamo Rent-A-Car, 111 F.3d 1495, 1499 (10th Cir. 1997). 69. City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, (1991). 70. United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965); Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1981). 71. Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988). 72. City of Columbia, 499 U.S. at USC 34 to Id. See GF Gaming Corp. v. City of Black Hawk, 405 F.3d 876, 885 (10th Cir. 2005) (example of the application of the Local Government Antitrust Act). n The Colorado Lawyer October 2014 Vol. 43, No