Section 2 of the Sherman Act prohibits monopolization, attempted monopolization and conspiracy to monopolize. The § 2 prohibitions are rooted in concerns "that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone." At the same time, courts have recognized that size alone cannot be the basis of condemnation under § 2, for as Learned Hand observed in Alcoa, "[t]he successful competitor, having been urged to compete, must not be turned upon when he wins.'' Reconciling the conflicting currents of § 2-preventing abusive practices by dominant firms without, at the same time, chilling the competitive vigor of dominant firms-has proven to be a difficult task for the courts because "it is sometimes difficult to distinguish robust competition from conduct with long-run anticompetitive effects.'' Early monopolization cases found violations based on predatory acts, exclusionary conduct, or refusals to deal. However, the decisions in these cases were more the product of each court's visceral reaction to the cases in question rather than the end result of hard legal analysis of § 2 and thus provided insufficient guidance for later cases. Subsequently, courts moved to a more conduct-specific standard in analyzing monopolization cases. This conduct-specific standard is perhaps best exemplified by the Supreme Court's ruling in Grinnell that in order to prove monopolization, plaintiff must show (1) that defendant possessed monopoly power, i.e., the power to control price or to exclude competition; and (2) ''willful acquisition or maintenance of [monopoly] power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." Simply put, the offense of monopolization is made out by proof of defendant's size plus its bad acts. Under Grinnell, "bad acts" include predatory pricing, leveraging, and refusals to share an essential facility. While a step forward analytically, the conduct-specific approach does not address all types of conduct that might violate § 2. Particularly troublesome for the courts has been conduct by dominant firms that excludes rivals. While a consensus has emerged in cases involving exclusionary pricing practices by dominant firms, the law with respect to non-price exclusionary behavior by dominant firms remains very much up in the air; and the question of when a dominant firm may lawfully refuse to deal with rivals and thereby exclude them from the field is "one of the most uncertain areas in all of U.S. antitrust law." Such uncertainty has led lower courts most recently to try to develop a "one size fits all" test for exclusionary conduct. Against this background, the Supreme Court entertained the Trinko case. The Court in Trinko held that Verizon was not liable under the antitrust laws to a customer of rival AT&T for its failure to provide AT&T prompt access to the Verizon local phone network, which the plaintiff alleged caused it to experience inferior local phone service. In so holding, the Court declined to embrace any bright-line rules addressing monopolistic refusals to deal but spent considerable energy making the case for a more tolerant approach to dominant firms. This article will explore the impact of the Trinko decision on the lower courts. Courts at both the trial and intermediate appellate levels have been cautious in their responses to Trinko. Unquestionably, the lower courts even after Trinko remain suspicious of exclusionary behavior by dominant firms and continue their search for a principled basis upon which to distinguish lawful from unlawful exclusionary behavior by dominant firms. Accordingly, Trinko does not mark an abrupt departure from the doctrine of prior cases but rather underscores the lack of clarity on the issue of when non-price exclusionary behavior by a monopolist is unlawful under § 2.

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