A Monopoly Carol: Examining the Past, Present & Future of Section 2 of the Sherman Act

Albert Einstein famously said: "The distinction between the past, present and future is only a stubbornly persistent illusion."  This presentation will examine whether this is borne out in the area of monopolization claims brought under Section 2 of the Sherman Act, which was designed over 130 years ago to curb the power of dominant 19th Century railroad, oil and steel behemoths. The 82 words contained in Section 2 have never been amended, yet courts have expanded Section 2 case law over the years to address new types of potentially exclusionary conduct. Now, there are increasing calls to reform the existing antitrust framework, which many worry is not up to the task of addressing the anti-competitive concerns raised by today's digital giants. This presentation, taught by Melissa H. Maxman and Erica Lai of Cohen & Gresser, will discuss the origins of Section 2, explain its current legal framework and standards, and examine its continued evolution, focusing on Section 2 challenges by state and federal governments to Google.

Learning Objectives:

1. Discuss the origins and aims of Section 2 of the Sherman Act
2. Identify the key elements, standards, and cases governing monopolization claims brought under Section 2
3. Recognize common hurdles in bringing monopolization claims
4. Review the application of the traditional Section 2 approach of the pending state and federal government cases against Google